STATE OF NEW JERSEY v. LUMARC PEIRRE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0131-06T40131-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

LUMARC PIERRE,

Defendant-Appellant.

__________________________________

 

Submitted: April 18, 2007 - Decided April 25, 2007

Before Judges Cuff and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 90-01-0302.

Yvonne Smith Segars, Public Defender, attorney for appellant (Robert Brigliadoro, Designated Counsel, on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Lumarc Pierre appeals from the denial of his petition for post-conviction relief. In his petition filed in June 2005, defendant sought to set aside his 1992 conviction of second-degree sexual assault. He had been sentenced to a four-year term of imprisonment in spite of his failure to appear on the initial sentencing date. He contended that his petition should not be treated as time-barred because he failed to provide an adequate factual basis for his plea and was denied effective assistance of counsel at the time of his plea.

Judge Isman denied the petition. An evidentiary hearing was not held. He found that the petition was filed well in excess of the five-year limitation expressed by Rule 3:22-12(a), and that it was filed only when defendant faced deportation in 2005. He further found that an adequate factual basis was elicited when the plea was obtained, that defendant failed to establish a prima facie case of ineffective assistance of counsel, and that the Vienna Convention did not provide any basis for relief.

On appeal, defendant raises the following arguments:

POINT I THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WAS NOT TIME BARRED UNDER RULE 3:22-12 BECAUSE THE DEFENDANT ESTABLISHED CERTAIN CRITERIA WHICH ALLOWED FOR A RELAXATION OF THIS RULE.

POINT II THE DEFENDANT IS ENTITLED TO POST CONVICTION RELIEF BECAUSE THERE WAS NO ADEQUATE FACTUAL BASIS FOR DEFENDANT'S GUILTY PLEA AND HIS GUILTY PLEA WAS NOT MADE KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY.

POINT III THE TRIAL COURT'S DENIAL OF DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT IV THE DEFENDANT WAS ENTITLED TO POST CONVICTION RELIEF BECAUSE THE STATE FAILED TO COMPLY WITH THE VIENNA CONVENTION.

POINT V NOTWITHSTANDING THE MERITS OF DEFENDANT'S ARGUMENTS, THE PETITION FOR POST CONVICTION RELIEF SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING WHEREIN DEFENDANT COULD HAVE ESTABLISHED HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.

We affirm substantially for the reasons expressed in Judge Isman's comprehensive June 30, 2006 oral opinion.

Affirmed.

 

The plea agreement provided that defendant would be sentenced as if the offense was a third-degree offense and that the State would recommend a five-year term.

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A-0131-06T4

April 25, 2007