STATE OF NEW JERSEY v. BERNARDO ROMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5036-08T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BERNARDO ROMAN,

Defendant-Appellant.

_________________________________________________

May 12, 2011

 

Submitted February 15, 2011 - Decided

 

Before Judges Wefing and Payne.

 

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Indictment No.

97-05-1337.

 

Yvonne Smith Segars, Public Defender,

attorney for appellant (William Welaj,

Designated Counsel, on the brief).

 

Warren W. Faulk, Camden County Prosecutor,

attorney for respondent (Robin A. Hamett,

Assistant Prosecutor, of counsel and on

the brief).

PER CURIAM

Defendant, Bernardo Roman, appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. On appeal, he raises the following arguments:

POINT I

 

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE[] ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

 

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

 

B. TRIAL COUNSEL FAILED TO ADEQUATELY REPRESENT THE DEFENDANT'S INTERESTS AT SENTENCING BY FAILING TO DEMONSTRATE THE APPLICABILITY OF VARIOUS MITIGATING FACTORS, BY FAILING TO ARGUE AGAINST THE IMPOSITION OF CONSECUTIVE TERMS, AND BY FAILING TO SEEK A LESSER SENTENCE THAN THAT CONTEMPLATED BY THE PLEA AGREEMENT.

 

POINT II

 

THE TRIAL COURT ERRED BY DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, UPON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-12.

 

POINT III

 

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, UPON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-1.

 

We affirm.

I.

The record demonstrates that, on December 28, 1996, having purchased a handgun for the purpose, defendant determined to rob a grocery store. After directing friends to enter the store to distract any employees and customers who were present, defendant entered, and in the course of the robbery, shot the store's cashier in the abdomen, causing her death. He was charged with second-degree conspiracy to commit robbery, N.J.S.A. 2C:15-1 and 2C:5-2, first-degree armed robbery, N.J.S.A. 2C:15-1, first-degree felony murder, N.J.S.A. 2C:11-3a(3), first-degree murder, N.J.S.A. 2C:11-3a(1)/(2), second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b.

On January 6, 1998, defendant pled guilty to a reduced charge of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, and to second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. He was sentenced on February 20, 1998 in accordance with the plea agreement to thirty years in prison with a twelve and one-half-year parole disqualifier pursuant to the Graves Act for the manslaughter and to a consecutive sentence of ten years with a five-year parole disqualifier on the weapons charge. The judge found aggravating factors 1 (the crime was committed in an especially heinous, cruel or depraved manner), 3 (the risk of reoffense) and 9 (the need for deterrence), N.J.S.A. 2C:44-1a(1), (3) and (9), and no mitigating factors. Defendant was also given a concurrent sentence on an unrelated pending third-degree school-zone drug charge.

Defendant did not appeal, and he delayed filing for PCR until October 19, 2006, more than eight years after sentencing. Following appointment of counsel, defendant argued ineffective assistance by his trial attorney in failing to argue mitigating factors at sentencing; in failing to have defendant evaluated for competency, intoxication and diminished capacity; and in failing to argue for concurrent sentences. The PCR judge heard argument on the PCR petition on December 19, 2008, and he denied it without an evidentiary hearing. In doing so, the judge found the petition to be procedurally barred by Rule 3:22-12, as untimely, and that defendant had failed to demonstrate exceptional circumstances that would permit relaxation of the bar. He also found the petition to be barred by Rule 3:22-3 as raising excessive sentence and other issues based solely on the record that should have been raised on direct appeal.

Addressing the merits of defendant's arguments, the judge found that while counsel is permitted to argue for a lesser sentence than that specified in the plea, he is under no obligation to do so. With respect to defendant's second argument, the judge held that nothing in the record indicated that defendant was unable to meet the standard for competency under N.J.S.A. 2C:4-4b. Further, defendant stated under oath at the plea proceeding that he understood everything that had occurred, and no mental health issues were noted in the pre-sentence investigation (PSI) report. Finally, defendant had offered no affidavits as to the quantity of any intoxicants that he had consumed, and the PSI report did not indicate that he was intoxicated at the time of the crime.

Addressing the factors utilized to determine whether ineffective assistance by defense counsel requires a new trial as set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) and adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987), the judge found that defendant had failed to prove either sub-standard representation during plea negotiations or at sentencing or a reasonable probability that, but for counsel's errors, the results would have been different. In this connection, the judge noted that defendant had been implicated by his co-defendants, who had been sent into the store to divert other employees and customers while defendant committed the crime. Further, he had admitted to killing the victim. Thus, defendant's attorney could not be found to have provided sub-standard representation when he negotiated a plea to aggravated manslaughter, thereby reducing defendant's sentencing exposure from life with a thirty-year parole disqualifier as the minimum sentence for felony murder to forty years with a seventeen and one-half year parole disqualifier on the reduced charge of manslaughter and the weapons offense. This appeal followed.

II.

On appeal, defendant has abandoned his argument that counsel was ineffective in failing to have him evaluated for competency, intoxication and diminished capacity, and he makes only sentencing arguments. Additionally, he addresses the judge's ruling that his PCR petition was barred by the five-year time limitation set forth in Rule 3:22-12 and the bar of Rule 3:22-3. We turn first to the issue of the applicability of Rule 3:22-12.

On appeal defendant claims the lateness of his PCR application can be explained by evidence of excusable neglect. Alternatively, he argues that he is entitled to relief in the interest of justice pursuant to Rule 1:1-2(a). In support of his argument, defendant offers his youth, ignorance of the law, diminished intelligence, and an inability to speak English fluently. However, the record reflects that defendant had a juvenile record, as well as a pending drug charge, thereby demonstrating that he was not unfamiliar with the criminal justice system. Further, the record does not reflect any inability on defendant's part to understand the proceedings that were taking place, the nature and consequences of his plea, or the advantages to be achieved in terms of sentencing exposure by waiving trial. Additionally, the record does not disclose any need to use an interpreter in taking defendant's plea or in sentencing him.

Defendant also argues that he understood that his plea was conditioned upon his waiver of the right to appeal. However, at the plea hearing, the judge carefully instructed defendant on the limited effect of his agreement to waive an appeal, stating:

Now, I see also that part of the agreement is that you agreed not to appeal.

 

What that means, Mr. Roman, so we're clear. You always have a right to file an appeal. But what th[is] means is that if you decide to exercise that right, that is to say, file the appeal, the plea offer that has been recommended and offered by the State could be retracted. And so, consequently, I just want you to understand that you always have a right to file an appeal. Do you understand that Sir?

 

Defendant responded "Yes," and in response to further questioning, defendant said, "I understand everything." Defendant was again advised of his right of appeal at the conclusion of sentencing.

Rule 3:22-12(a)(1) provides:

[N]o petition shall be filed pursuant to this rule more than 5 years after the date of entry pursuant to Rule 3:21-5 of the judgment of conviction that is being challenged unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice.

 

Further, paragraph (c) of the Rule states: "These time limitations shall not be relaxed, except as provided herein."

In discussing application of the Rule, we have observed:

The concept of excusable neglect encompasses more than simply providing a plausible explanation for a failure to file a timely PCR petition. To determine whether a defendant has asserted a sufficient basis for relaxing the Rule's time restraints, we "should consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an 'injustice' sufficient to relax the time limits." State v. Afanador, 151 N.J. 41, 52 (1997). Excusable neglect provides the means for a court to address and correct a criminal judgment where "adherence to it would result in an injustice." State v. McQuaid, 147 N.J. 464, 485 (1997); State v. Mitchell, 126 N.J. 565, 580 (1992).

 

[State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009).]

 

Our review of the record in this case does not suggest that adherence to the judgment entered pursuant to the plea that was negotiated on defendant's behalf would result in an injustice. Although defense counsel suggests, without substantial proofs, that defendant did not understand the appellate process and was intellectually limited, we note that he was sufficiently cognizant of his rights to file, in 2002, a pro se motion for reconsideration of sentence. Further, we note that defendant filed untimely pro se petitions for PCR on October 19, 2006 and December 12, 2006. There is nothing in the record to suggest an inability on defendant's part to have filed those petitions at an earlier time or to explain why he failed to follow up his motion for reconsideration of sentence with an excessive sentence appeal. Defendant's unsupported statement that he "is blind when it come to the law, and has been miss guided with his rights to appeal since his conviction" lacks specificity and is inadequate to serve as a basis for relief at this late stage.

Further, we are satisfied that the sentence imposed upon defendant was a legal one, and that it offered substantial sentencing advantages to him in comparison to what his exposure would have been if he had been tried for murder. Thus we find no injustice in its imposition, and no grounds to disturb it at the present time.

As a consequence of our determination that defendant's PCR petition was untimely, we decline to address defendant's remaining arguments.

Affirmed.