STATE OF NEW JERSEY v. JOSEPH CRUZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH CRUZ,

Defendant-Appellant.

________________________________________________________________

March 7, 2014

Submitted September 18, 2013 Decided

Before Judges Lihotz and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 01-03-0247, 01-03-0260, and 01-03-0344.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Joseph Cruz appeals from an order entered by the Law Division, Criminal Part, on March 14, 2012, which denied his petition for post-conviction relief (PCR). We affirm.

Defendant was charged under three indictments for multiple counts of robbery, N.J.S.A. 2C:15-1; theft by unlawful taking, N.J.S.A. 2C:20-3(a)(3); criminal attempt to commit theft by unlawful taking, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-3(a); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); aggravated assault, N.J.S.A. 2C:12-1(b)(2); and certain persons not to possess a weapon, N.J.S.A. 2C:39-7(a).

On June 17, 2003, defendant pled guilty to one count of second-degree robbery, and two counts of first-degree robbery. In exchange for his guilty plea, the State recommended an extended prison term of fifteen years with a seven-year period of parole ineligibility on the second-degree robbery, and two concurrent twelve-year sentences subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the two armed robberies. The State recommended the sentences be served consecutively to a sentence previously imposed.

On October 17, 2003, the court imposed a sentence of fourteen years imprisonment with a seven-year period of parole ineligibility on the second-degree robbery, and concurrent eleven-year terms on the two first-degree robberies, to be served consecutively to a sentence defendant was already serving.

Defendant appealed his sentence, which we affirmed on our sentencing calendar, Rule 2:9-11, but remanded to correct the judgment of conviction to reflect the correct number of gap-time credits. State v. Joseph Cruz, No. A-6789-03 (App. Div. August 8, 2005).

Defendant filed a PCR petition in October 2009, more than six years after he was sentenced. In his pro se brief, defendant claimed he was denied effective assistance of trial counsel because his attorney did not advise him of the penal consequences of his guilty plea, hence, entitling him to withdraw the plea. In defendant's first amendment to that petition, filed on March 23, 2011, he argued excusable neglect for the late filing of the PCR, and added claims related to his sentence. Assigned counsel submitted a letter brief on March 23, 2011, in support of the initial petition, contending trial counsel failed to (1) argue mitigating factor eleven, and (2) consider defendant's efforts to obtain long-term, in-patient drug treatment. In the second amended PCR, filed on January 3, 2012, defendant asserts a claim of incorrect jail and gap-time credits.

Following oral argument on January 3, 2012, Judge Thomas M. Brown denied defendant's petition. In a written decision, the court found that defendant's PCR application was time-barred by Rule 3:22-12(a)(1). Nevertheless, the court considered the merits of the petition and concluded they were without merit because the sentencing judge fully considered the hardship on defendant's family and defendant's drug rehabilitation efforts, and properly explained defendant's entitlement to credits.

On appeal, defendant presents the following arguments:

I. THE PCR MOTION JUDGE SHOULD HAVE RELAXED THE TIME BAR OF R. 3:22-12.

II. DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM FOR POST-CONVICTION RELIEF.

We have considered these arguments in light of the record and the applicable law, and conclude they are clearly without merit. R. 2:11-3(e)(2). We present only the following brief comments.

In this case, the PCR court correctly ruled that defendant's petition was time-barred because it was not filed within the five-year period allowed by Rule 3:22-12, and defendant failed to show that the delay was attributable to either excusable neglect or exceptional circumstances. See State v. Goodwin, 173 N.J. 583, 594-95 (2002).

Although the matter was procedurally barred, our review of the record convinces us that the PCR judge carefully considered each of defendant's claims. We agree that defendant failed to demonstrate that the performance of his counsel was substandard, or that, but for any of the alleged errors, the result would have been different. See Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) (adopting the standard for claims of ineffective assistance of counsel); State v. Fritz, 105 N.J.42, 67 (1987) (adopting the Stricklandstandard in New Jersey). Nor did defendant demonstrate that he was entitled to withdraw his plea due to the advice he received from counsel. See State v. Howard, 110 N.J. 113, 123 (1988) (holding that to vacate a plea, defendant must show that he was both misinformed of the agreement and that he was prejudiced by its enforcement). Accordingly, we affirm substantially for the reasons expressed by Judge Brown in his comprehensive written opinion.