STATE OF NEW JERSEY v. ALEXANDER RODRIGUEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1806-05T41806-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALEXANDER RODRIGUEZ,

Defendant-Appellant.

________________________________

 

Submitted February 13, 2007 - Decided March 2, 2007

Before Judges Lintner and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County,

00-03-0197.

Yvonne Smith Segars, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, of counsel and on the brief).

Ronald J. Casella, Cumberland County Prosecutor, attorney for respondent (Lesley Snock, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant, Alexander Rodriguez, appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm essentially for the reasons expressed by Judge Farrell following oral argument on defendant's motion for PCR. Defendant entered a plea of guilty to first-degree strict liability for drug-induced death, N.J.S.A. 2C:35-9, on March 13, 2000. The plea agreement, which called for a ten-year term, specifically provided that the State would argue for imposition of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant signed the supplemental plea form for NERA cases. He acknowledged, in response to the judge's questions, that his attorney explained NERA to him, he understood the supplemental form, and he was aware that his sentence would be subject to an eighty-five percent period of parole ineligibility if the judge found that NERA applied to the offense of strict liability drug-induced death. He also acknowledged that he discussed the issues of NERA's applicability with counsel.

At sentencing on May 26, 2000, counsel argued for contrary results under State v. Newman, 325 N.J. Super. 556 (App. Div. 1999), certif. denied, 163 N.J. 396 (2000). The judge found that NERA applied and then determined that aggravating factors N.J.S.A. 2C:44-1a(3), (6), (9), and (11) and mitigating factors N.J.S.A. 2C:44-1b (2), (5), and (11) applied. He imposed a ten-year term with the appropriate NERA period of parole ineligibility.

Defendant appealed, asserting that NERA did not apply to his conviction for drug-induced death because he neither intended nor caused the victim's death. Relying on the holding in State v. Cullum, 338 N.J. Super. 458, 463 (App. Div.), certif. denied, 169 N.J. 607 (2001), that NERA's provision that "any crime in which the actor causes death," applied to the offense of drug-induced death because intent is not relevant in strict liability crimes, we granted the State's motion for summary disposition, R. 2:8-3(b), and affirmed the judgment of conviction on June 14, 2001. State v. Rodriguez, Docket No. A-6581-99 (App. Div. June 14, 2001), certif. denied, 170 N.J. 86 (2001).

Defendant's first PCR petition was denied on October 28, 2003, because his petition did not provide a verified petition specifying the grounds upon which a hearing could be held. In this, his second PCR application, defendant asserts that, before he pled guilty, his trial counsel did not adequately advise him of the risk that his sentence would be subject to NERA. He also claims that he should have been sentenced as a second-degree offender but for his counsel's failure to argue that the appropriate mitigating factors predominated.

Defendant and counsel appeared on August 12, 2005, the return date of defendant's motion for PCR. At that time, counsel advised Judge Farrell that defendant wanted to withdraw his PCR argument related to his plea agreement because he did not want his plea set aside. Instead, he limited his argument to "why his attorney should have presented different things at the sentencing to allow for a new sentencing hearing." Defendant maintained that had the judge considered mitigating factors N.J.S.A. 2C:44-1b(3), (4), and (8) he would have been sentenced as a second-degree offender under N.J.S.A. 2C:44-1f(2). He also asserted that his counsel's failure to argue at sentencing that the judge misapplied aggravating factor N.J.S.A. 2C:44-1a(11) ("imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business") represented ineffective assistance of counsel.

The judge pointed out that defendant's extensive criminal record involving drug-related crimes negated any reliance on mitigating factor (8) that his conduct was unlikely to reoccur. He also found that defendant's assertion that he was under the influence of heroin at the time of the offense did not support a strong provocation under mitigating factor (3), although it might be relevant as tending to excuse conduct under mitigating factor (4). Judge Farrell found that defendant's counsel did not render ineffective assistance because even if he had argued mitigating factor (4) it would have received only slight weight, which would not have overcome the weight given aggravating factors (3), (6), and (9). He appropriately concluded that defense counsel's failure to argue for mitigating factors (3), (4), and (8) was not sufficient to satisfy the first prong of N.J.S.A. 2C:44-1f(2), requiring a clear and convincing showing that the mitigating factors substantially outweighed the aggravating factors. He than pointed out that, even if he gave defendant the "benefit of the doubt" and found that counsel was ineffective for failing to argue mitigating factors (3), (4), and (8), he still would not have met the second "injustice" prong of N.J.S.A. 2C:44-1f(2). As such, he concluded that counsel's failure to argue the mitigating factors raised by defendant in his PCR petition did not affect the sentence imposed. See State v. Fritz, 105 N.J. 42, 58 (1987).

Judge Farrell found that the failure to raise the inapplicability of aggravating factor (11) was procedurally barred because it could have been raised on direct appeal. R. 3:22-4. Finally, Judge Farrell determined from the March 13, 2000, plea transcript that the judge who took defendant's plea went into great detail explaining defendant's sentencing options, including the parameters of NERA and the penal consequence that could result depending upon whether the sentencing court found NERA applicable. He concluded that defendant knew what he was doing and the applicable sentencing parameters.

On appeal, defendant raises the following points:

POINT ONE

THE DEFENDANT'S TRIAL ATTORNEY INEFFECTIVELY REPRESENTED THE DEFENDANT WHERE HE GROSSLY MISADVISED THE DEFENDANT OF THE SENTENCE TO WHICH THE PLEA AGREEMENT EXPOSED HIM.

POINT TWO

APPELLATE COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE WHERE HE DID NOT ADDRESS THE ISSUE OF WHETHER THE TRIAL ATTORNEY'S ADVICE EXPOSED THE DEFENDANT TO A SENTENCE HE DID NOT REASONABLY EXPECT.

POINT THREE

TRIAL COUNSEL'S REPRESENTATION AT THE SENTENCING HEARING WAS CONSTITUTIONALLY INADEQUATE BECAUSE HE FAILED TO ARGUE ALL APPLICABLE MITIGATING FACTORS.

In his supplemental pro se brief, defendant contends, for the first time on appeal, that the NERA-imposed sentence runs afoul of the law because it subjected him to an extended term, which was not part of the plea agreement, extended his sentence beyond the real time that would have been imposed had he received his agreed-upon ten-year term, and is violative of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

First and foremost, we agree with Judge Farrell's findings and conclusions and affirm substantially for the reasons he expressed in denying defendant's PCR application on August 12, 2005. The argument raised in Point I that defendant was "cajoled . . . into pleading guilty based on the representation that an argument could reasonably be made [that] NERA would not apply to his sentence" was specifically withdrawn by PCR counsel in the presence of defendant and, thus, not argued. Likewise, the effectiveness of appellate counsel was not raised before the motion judge. We will, therefore, not consider either issue here. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Nonetheless, we note in passing, as did Judge Farrell, that our review of the plea transcript reveals that defendant fully understood the penal consequences when he entered his guilty plea and, thus, would not be entitled to withdraw his plea even if we were to consider his arguments here. See State v. DiFrisco, 137 N.J. 434, 453-55 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).

Finally, the ten-year term received by defendant is the minimum available term for a first-degree offense. As such, it was not violative of either Blakely or Apprendi. State v. Natale (Natale II), 184 N.J. 458, 466 (2005). Moreover, claims by defendants under Natale II are limited to cases that were on direct appeal as of August 2, 2005, or to defendants who challenged their sentences on Sixth Amendment grounds at trial or on direct appeal. Neither circumstance is applicable here.

Affirmed.

 

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A-1806-05T4

March 2, 2007