STATE OF NEW JERSEY v. CARLOS VEGA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0191-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLOS VEGA,

Defendant-Appellant.

__________________________

November 16, 2011

Submitted November 1, 2011 - Decided

Before Judges Reisner and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 07-10-1798.

Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief).

Marlene Lynch Ford, Ocean County Prosecutor, attorneyfor respondent(Samuel J.Marzarella, Supervising Assistant Prosecutor,of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Carlos Vega appeals from the April 7, 2010 order, which denied his petition for post-conviction relief (PCR), and his applications to withdraw his guilty plea and for a sentencing reduction. We affirm.

Defendant does not deny that he shot an unarmed victim in the eye at close range, killing him. A grand jury indicted him for first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3; first-degree murder, N.J.S.A. 2C:11-3a or b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. Under a separate indictment, a grand jury indicted defendant for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1).

Pursuant to a plea agreement, defendant agreed to plead guilty to an amended charge of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a(1), and the CDS charge. In exchange, the State agreed to dismiss all other charges and recommend a twenty-five-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the aggravated manslaughter charge, and a five-year term of imprisonment on the CDS charge, to run concurrently or consecutively in the court's discretion.

Judge Giovine imposed a twenty-five-year term of imprisonment subject to NERA on the manslaughter charge, and a concurrent three-year term of imprisonment on the CDS charge after finding and applying aggravating factors 1, "[t]he nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner[,]" N.J.S.A. 2C:44-1a(1), 3, "[t]he risk that the defendant will commit another offense[,]" N.J.S.A. 2C:44-1a(3), and 9, "[t]he need for deterring the defendant and others from violating the law[,]" N.J.S.A. 2C:44-1a(9), and mitigating factor 7, "[t]he defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense[,]" N.J.S.A. 2C:44-1b(7).

Defendant appealed his sentence. We heard the appeal on our excessive sentence oral argument calendar, and affirmed, finding that the sentence "is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion."

Thereafter, defendant filed a pro se motion, entitled "Motion to Correct [An] Illegal Sentence Pursuant to R. 3:22-12." In a brief submitted by assigned counsel, defendant argued that trial counsel was ineffective because he failed to contest Judge Giovine's finding of aggravating factors 1 and 3, and failed to address and zealously argue in favor of mitigating factor 12, "[t]he willingness of the defendant to cooperate with law enforcement authorities[,]" N.J.S.A. 2C:44-1b(12).

Judge Ronald E. Hoffman denied the petition. After carefully reviewing the plea and sentencing transcripts, the judge concluded that defendant clearly understood the plea agreement, had no complaints about his attorney, his attorney had argued for a lesser sentence and for a concurrent sentence on the CDS charge, and defendant agreed with what his attorney had said at the sentencing. The judge also concluded that the record supported Judge Giovine's findings and application of aggravating and mitigating factors, the record did not support mitigating factor 12, the sentence was within the statutory range for a first-degree crime, and defense counsel "negotiated a very favorable plea agreement," which resulted in the dismissal of charges that exposed defendant to life imprisonment.

The judge also concluded that Rule 3:22-5 barred defendant's attempt to correct an illegal sentence because we had affirmed his sentence on appeal, and there was no basis to permit defendant to withdraw his plea. This appeal followed.

On appeal, defendant raises the following arguments:

POINT I

DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT II

DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS POST-CONVICTION RELIEF CLAIMS.

POINT III

PROCEDURAL BARS AGAINST POST-CONVICTION RELIEF DO NOT APPLY.

POINT IV

ILLEGALITY IN DEFENDANT'S 25-YEAR SENTENCE FOR AGGRAVATED MANSLAUGHTER REQUIRES A NEW SENTENCING HEARING.

We have considered these arguments in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Hoffman in his comprehensive, well-reasoned oral opinion rendered on March 24, 2010. We add only that defendant's Point IV does not state a challenge to the "legality" of his sentence within the meaning of Rule 3:21-10(b)(5) (a motion to correct an illegal sentence may be filed at any time), or former Rule 3:22-12(a), which, prior to its recent amendment, provided that a PCR petition to correct an illegal sentence may be filed at any time.