STATE OF NEW JERSEY v. ROBERT RAGIN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6003-06T46003-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT RAGIN,

Defendant-Appellant.

_________________________________

 

Submitted March 31, 2009 - Decided

Before Judges Skillman and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Hudson County,

Indictment No. 96-04-0540.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Alison Perrone,

Designated Counsel, on the brief).

Edward J. DeFazio, Hudson County

Prosecutor, attorney for respondent

(Nicole Ghezzar, Assistant Prosecutor,

on the brief).

PER CURIAM

Defendant Robert Ragin appeals from the denial of his petition to correct an illegal sentence. He was indicted and charged with murder, N.J.S.A. 2C:11-3a(1)-(2), unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and possession of a weapon with an unlawful purpose, N.J.S.A. 2C:39-4a. He was also charged in an accusation alleging that on the day prior to the homicide he possessed a weapon with an unlawful purpose, N.J.S.A. 2C:39-4a. Pursuant to an agreement with the State encompassing the indictment and accusation, defendant waived his right to indictment on the accusation and pled guilty to aggravated manslaughter, N.J.S.A. 2C:11-4, and possession of a weapon with an unlawful purpose on the day before the homicide.

In providing a factual basis for his guilty pleas, defendant acknowledged that he killed the victim during an argument. When the victim jumped at defendant, he shot him. Defendant also admitted that on the day prior to the shooting, he was carrying a .38 revolver "for protection, just in case anybody start[ed] bothering [him for his] stash, [his] drugs."

In accordance with the plea agreement, which had been placed on the record before defendant pled guilty, the trial court sentenced defendant as follows: for aggravated manslaughter, a term of thirty years subject to a fifteen-year period of parole ineligibility; and for possession of a weapon with an unlawful purpose, a term of ten years subject to a five-year term of parole ineligibility. Judgment of conviction was entered on May 22, 1997.

After oral argument on an appeal presented in accordance with Rule 2:9-11, this court affirmed defendant's sentence on both charges. The Supreme Court denied his petition for certification. State v. Ragin, 156 N.J. 385 (1998).

On August 2, 2005, defendant filed a "Petition to Correct an Illegal Sentence." In the brief submitted on that claim and a supplemental brief, defendant argued that the accusation had not been filed and the charge it included was not part of his guilty plea. On that ground, he argued that merger of his convictions was required by law. Defendant's briefs also included an assertion that his prior attorney "was only interested in getting him to accept a plea," prevented him from establishing a claim of self-defense and did not provide constitutionally adequate representation.

The judge denied defendant's petition to correct an illegal sentence. Although the judge noted that defendant's papers included complaints about the performance of the attorney who represented him at the time of his plea and sentence, consistent with defendant's characterization of his motion, the judge addressed the application only as a motion to correct an illegal sentence. The judge did not reach the merits of defendant's allegations about his attorney's performance and left those questions for resolution on any subsequent petition that raised that issue and was supported by an explanation of the reasons for filing beyond the time allowed by Rule 3:22-12(a).

Defendant was present and represented by counsel at the hearing on his petition. After the judge rendered her decision, defendant's attorney made one request: "Judge, can we for the record, I just want to state that I did have the opportunity to speak to Mr. Ragin and as Your Honor stated was just asking for any rights and opportunities for a PCR motion out of time to be preserved for Mr. Ragin." Defense counsel did not ask the judge for leave to file amended pleadings pursuant to Rule 3:22-9 at any point during the proceeding.

On this appeal, defendant argues:

REVERSAL IS REQUIRED SINCE THE COURT'S PRECIPITOUS DENIAL, WITHOUT A HEARING, OF DEFENDANT'S POST-CONVICTION RELIEF PETITION OPERATED TO DEPRIVE HIM OF HIS RIGHT TO COUNSEL.

We affirm the denial of defendant's petition to correct an illegal sentence substantially for the reasons stated in the judge's oral decision of November 30, 2006. Because defense counsel did not file or ask to file amended pleadings and the court did not rule on any issue other than the legality of defendant's sentence, we conclude that the argument raised on this appeal lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The defendant's additional claims were based on facts he knew at the time of the plea and sentencing proceedings, and he failed to offer any explanation for his delay in filing the petition. Accordingly, the course of action the judge selected did not prejudice him in any way. See R. 3:22-12(a); State v. Mitchell, 126 N.J. 565, 576-77 (1992).

Affirmed.

 

Oral argument on this appeal from the trial court's denial of defendant's petition was initially heard pursuant to Rule 2:9-11, but the panel determined that the appeal should be re-calendared and considered after the parties filed briefs.

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A-6003-06T4

April 22, 2009