STATE OF NEW JERSEY v. HECTOR BAUTISTA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1786-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HECTOR BAUTISTA,

Defendant-Appellant.

December 8, 2009

Submitted November 9, 2009 - Decided

Before Judges Baxter and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. 95-10-1331 and 96-05-0724.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Hector Bautista appeals from the April 18, 2008 denial of his application for post-conviction relief (PCR). We affirm.

Defendant entered guilty pleas on February 9, 1998 to three counts of first-degree armed robbery, N.J.S.A. 2C:15-1, and one count of fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(5). Two of the robbery counts related to incidents that occurred on July 19, 1995 and were included in Bergen County Indictment No. S-724-96. The third count involved an August 16, 1995 incident and was charged in Bergen County Indictment No. S-1331-95.

In exchange for defendant's guilty pleas, the State agreed to recommend an aggregate eighteen-year sentence with a term of parole ineligibility not to exceed one-third of the base term. The written agreement included the following notation: "failure to appear for sentence = full exposure . . . any parole ineligibility period is at discretion of the court."

Defendant failed to appear for his May 15, 1998 sentence and remained a fugitive until December 3, 1998. On April 9, 1999, he unsuccessfully sought to withdraw his guilty pleas. On May 14, 1999, he was sentenced to three consecutive fifteen-year terms subject to five years of parole ineligibility on each. Defendant's total aggregate sentence was forty-five years, subject to fifteen years of parole ineligibility.

Because of the anomalous result that defendant received the then-presumptive midpoint of the range as well as a term of parole ineligibility, we remanded the matter for the sentencing judge to reconsider the sentence. State v. Bautista, No. A-5545-98 (App. Div. Feb. 5, 2001) (slip. op. at 5-6). After hearing arguments on remand, the sentencing judge on October 15, 2001 imposed the same aggregate sentence of a forty-five-year term with fifteen years of parole ineligibility. No appeal was taken from that decision.

Defendant's first petition for PCR was denied on March 25, 2003. The judge concluded that defendant was well-represented by trial counsel on the original agreement and that it was only defendant's failure to appear at his sentence hearing, a circumstance beyond his attorney's control, that led to the significantly greater sentence imposed. The first PCR judge also found that defendant's alleged cognitive shortcomings attention deficit hyperactivity disorder and a low I.Q. did not negate his "understanding of right and wrong," as reflected by the GED and various certificates that defendant earned while in state prison.

Significantly, the first PCR judge also addressed defendant's claim that the forty-five-year sentence was actually illegal because the sentencing judge failed to find additional mitigating factors. In a similar vein, defendant asserted that the sentences should have been concurrent because the conduct was a "spree." The judge found no impropriety on either grounds, although the judge's actual reasoning appeared to address the merits of the sentence based on the fact that defendant was sentenced for three separate acts of violence perpetrated on three separate victims at separate places, instead of any purported illegality.

On March 15, 2006, defendant filed a second PCR petition. It was subsequently withdrawn without prejudice.

Defendant filed a third PCR petition on October 30, 2006. Good cause was found to exist, and he was assigned counsel, as to his claim of ineffective assistance of trial counsel but not as to his claim of illegal sentencing. Assigned PCR counsel filed an amended verified PCR petition on February 19, 2008, which was denied without evidentiary hearing on April 18, 2008. It is this order from which appeal is taken.

In this third PCR petition, defendant alleged that neither the attorney who represented him on the resentence nor the attorney who represented him on his first PCR told him that he had the right to appeal those decisions. In addition to his own certification, defendant provided a certification from his mother stating that she had not been told that her son had the right to appeal the resentence decision, and that when counsel finally advised her of it, defendant's right of appeal had expired months earlier.

The judge who denied defendant's third PCR did so in part because of the procedural bar found in Rule 3:22-12, which states:

A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule more than five 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.

Defendant contends that the court erred in finding the petition to be time barred because the delay was "excusable neglect occasioned by the ineffective assistance of two attorneys in failing to advise him of his right of appeal."

Unfortunately for defendant, his certification and that of his mother do not establish even a prima facie basis for relief such as would warrant an evidentiary hearing. Their allegations are nothing more than unsubstantiated bald assertions. See State v. Cummings, 321 N.J. Super. 154, 169-70 (App. Div.), certif. denied, 162 N.J. 199 (1999). The fact that defendant appealed his initial conviction casts doubt as to the truthfulness of these allegations. He actually exercised his right to appeal on at least one occasion before the alleged ineffective assistance of his counsel in failing to advise him of his right to appeal. Defendant does not explain why he would have understood he had the right to appeal his sentence but no other time thereafter.

Defendant also contends the time bar should be relaxed because strict adherence would result in so great an injustice as to constitute an exception to the rule. We do not agree. Defendant's claim that he was not advised of his right of appeal is, as we have said, simply not credible.

Furthermore, defendant is foreclosed from revisiting the length of the base terms of his sentence and the imposition of parole ineligibility. The alleged illegality of defendant's sentence was already addressed in his first PCR. It is therefore barred from reconsideration under Rule 3:22-5, which makes prior adjudications conclusive.

Additionally, the sentence complained of is not illegal per se, and is therefore not properly raised by PCR. Sentences that are allegedly excessive but not illegal cannot be reviewed by way of PCR and are ordinarily remediable only by way of direct appeal. See State v. Pierce, 115 N.J. Super. 346 (App. Div.), certif. denied, 59 N.J. 362 (1971); State v. Clark, 65 N.J. 426, 436-37 (1974).

We do not reach defendant's assertion that the remand sentence did not comply with our mandate. Even if we did, any failure on the part of the sentencing judge to comply with the then-current law and the remand decision does not make the sentence illegal per se. A petition for PCR as to the unlawfulness of a sentence requires a claim of some "substantial denial" of constitutional rights, "[l]ack of jurisdiction," or grounds "for collateral attack" available prior to the adoption of the rule as well as a claim of illegality. R. 3:22-2(c). None of these conditions are present. It is solely the length of the sentence and the terms of parole ineligibility to which defendant objects and nothing more. This claim has been previously adjudicated on PCR, and was not even properly cognizable on PCR in the first instance. Therefore, no valid claim of ineffective assistance of counsel has been established. Because none of defendant's contentions have merit, much less establish a prima facie case, no evidentiary hearing was required. State v. Preciose, 129 N.J. 451, 462-63 (1992); Cummings, supra, 321 N.J. Super. at 169-70.