STATE OF NEW JERSEY v. OTTO SANCHEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3576-08T43576-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OTTO SANCHEZ,

Defendant-Appellant.

________________________________________________________________

 

Submitted June 3, 2010 - Decided

Before Judges Fisher and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 97-07-1075.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jennifer Barr Swift, Designated Counsel, of counsel and on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Steven J. Harbace, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR). We affirm, essentially for the reasons set forth in a written opinion by Judge Kevin Callahan.

Defendant pled guilty to first-degree aggravated manslaughter, amended from murder, N.J.S.A. 2C:11-4(a), and first-degree armed robbery, N.J.S.A. 2C:15-1, pursuant to a plea agreement in April 2000. Consistent with the terms of the plea agreement, he was sentenced in June 2000 to thirty years with a fifteen-year period of parole ineligibility on the robbery charge and a consecutive term of fifteen years with a five-year period of parole ineligibility on the aggravated manslaughter charge. Defendant appealed, arguing only that his sentence was excessive. This court affirmed his sentence. State v. Sanchez, No. A-3219-00T4 (App. Div. February 6, 2002). His petition for certification was denied. State v. Sanchez, 174 N.J. 365 (2002).

Defendant did not file a PCR petition until June 2008. In his petition, defendant alleges that he was denied the effective assistance of counsel in pretrial preparation, plea negotiations, in the investigation of all possible defenses and in securing a plea agreement molded to the facts of the case. Petitioner contends that the facts warranted a guilty plea to theft but not to robbery "as the intent element was an afterthought." He does not deny that he shot the victim twice in the head with a .22 caliber handgun and offers no facts to explain why he failed to file this petition on a timely basis.

Defendant's petition was denied by the Honorable Kevin Callahan, with an extensive written statement of reasons.

In this appeal, defendant raises the following issues:

POINT I

THERE WAS NO FACTUAL BASIS FOR A GUILTY PLEA FOR ARMED ROBBERY BECAUSE THERE WAS NO INTENT TO PERMANENTLY DEPRIVE THE VICTIM; TRIAL AND APPELLATE COUNSEL NEGLECTED TO EFFECTIVELY ARGUE AGAINST THE PLEA; THE JUDGE BELOW ERRED IN DENYING POST-CONVICTION RELIEF.

A. TRIAL COUNSEL

B. APPELLATE COUNSEL

C. THE PCR JUDGE

POINT II

TRIAL AND APPELLATE COUNSEL NEGLECTED TO ARGUE CASE LAW AGAINST IMPOSING A CONSECUTIVE SENTENCE; THE JUDGE BELOW ERRED IN DENYING POST-CONVICTION RELIEF (NOT RAISED BELOW).

A. TRIAL COUNSEL

B. APPELLATE COUNSEL

C. THE PCR JUDGE

POINT III

THIS PCR APPLICATION SHOULD BE CONSIDERED AS TIMELY TO AVOID FUNDAMENTAL INJUSTICE.

We are not persuaded by any of these arguments and affirm, essentially for the reasons set forth by Judge Callahan. We agree that defendant failed to set forth a prima facie case of ineffective assistance of counsel pursuant to the standard established in Strickland v. Washington, 466 U.S. 668, l 04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l 05 N.J. 42 (l987), and that, as a result, no evidentiary hearing was required. See State v. Preciose, 129 N.J. 451, 462-63 (1992).

In any event, defendant's petition is time-barred. Rule 3:22-12(a) provides in pertinent part:

No . . . petition [for post conviction relief] shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.

To be entitled to a relaxation of the Rule based upon excusable neglect, the petitioner must "allege[] facts demonstrating that the delay was due to the defendant's excusable neglect" and, "[i]f the petitioner does not allege sufficient facts, the Rule bars the claim." State v. Mitchell, 126 N.J. 565, 576 (1992). Because petitioner did not present any facts to explain his delay, he was not entitled to a relaxation of the Rule and his petition is appropriately time-barred.

 
Affirmed.

(continued)

(continued)

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A-3576-08T4

June 23, 2010