STATE OF NEW JERSEY v. MIRLE LOPEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4955-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

MIRLE LOPEZ,

Defendant-Appellant.

__________________________________

October 26, 2011

Submitted: October 13, 2011 - Decided:

Before Judges Cuff and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 94-12-1412.

Joseph E. Krakora, Public Defender, attorney forappellant (MichaelA. Priarone, Designated Counsel, on the brief).

CameliaM. Valdes,Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury found defendant Mirle Lopez guilty of two counts of armed robbery, N.J.S.A. 2C:15-1; one count of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; unlawful possession of a weapon, N.J.S.A. 2C:5b; and two counts of fourth degree aggravated assault, N.J.S.A. 2C:12-1b(4). He is serving a fifty-year term of imprisonment, twenty-five years of which must be served without parole. Defendant appeals the order denying his second petition for post-conviction relief (PCR). We affirm.

In his direct appeal, defendant argued that trial counsel abandoned him at sentencing and that his conduct should be considered ineffective assistance of counsel. We declined to address this claim on direct appeal, stating that it "should be heard in a post-conviction relief proceeding." State v. Lopez, No. A-2950-95 (App. Div. May 2) (slip op. at 5), certif. denied, 151 N.J. 465 (1997).

On June 19, 2006, defendant filed his second PCR petition in which he alleged that he was entitled to a new sentencing hearing due to ineffective assistance of counsel at sentencing.1 Defendant argued that trial counsel should have presented his mental health history as a mitigating factor. Defendant relied on a psychiatric evaluation by Dr. Greenwald, who opined that defendant is borderline mentally retarded, has a learning disability and a history of depression with psychotic feature. He also reported that his prior drug abuse is in remission due to incarceration. He concluded, however, that none of the identified conditions would support a claim of diminished capacity at the time of the offenses.

Judge Honigfeld dismissed the petition. He held that the second petition was procedurally barred because defendant could have and should have raised this issue in his first petition filed in 1999. He also found the ineffective assistance of counsel at sentencing claim without merit. In so ruling, Judge Honigfeld noted the sentence was legal and justified due to the offenses and his prior criminal history. He also noted defendant had instructed trial counsel not to argue on his behalf at sentencing.

On appeal, defendant raises the following arguments:

I. THE PCR COURT ERRED IN FINDING THAT DEFENDANT'S PETITION WAS PROCEDURALLY BARRED BY RULE 3:22-4 AS RAISING GROUNDS WHICH MIGHT HAVE BEEN ASSERTED IN DEFENDANT'S FIRST PETITION FOR POST CONVICTION RELIEF.

II. THE PCR COURT ERRED IN CONCLUDING THAT TRIAL COUNSEL'S FAILURE TO PRESENT EVIDENCE OF DEFENDANT'S MENTAL ILLNESS IN MITIGATION OF HIS SENTENCE DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL.

III. THE PCR COURT ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING ON TRIAL COUNSEL'S FAILURE TO PRESENT EXPERT OPINION REGARDING DEFENDANT'S LONG HISTORY OF MENTAL ILLNESS IN MITIGATION OF SENTENCE.

We have reviewed the record in its entirety and discern no basis to disturb the order denying defendant's second PCR petition. This petition, filed eleven years after entry of the judgment of conviction is well beyond the general time limitations of Rule 3:22-12, whether we apply the version of Rule 3:22-12 in effect at the time he filed his petition or the rule as amended effective February 1, 2010. In addition, defendant cannot overcome the procedural bar of Rule 3:22-4, whether we apply the rule in effect at the time he filed his second petition or the newly amended rule. Although defendant did not obtain a psychiatric evaluation and report until 2008, he was on notice as early as May 2, 1997, the date on which this court filed its opinion addressing his direct appeal, that his ineffective assistance of counsel at sentencing claim had been deferred to a PCR proceeding. Nevertheless, he neglected to raise that claim in his first petition.

We are also satisfied that defendant's current claim of ineffective assistance of counsel is without merit. The transcript of the sentencing confirms that defendant instructed trial counsel not to speak on his behalf. In addition, the report of Dr. Greenwald does not support application of any mitigating factors, particularly N.J.S.A. 2C:44-1b(2) (defendant did not contemplate his conduct would cause harm) or -1b(4) (substantial grounds to excuse or justify his conduct failing to establish a defense). In short, defendant cannot establish that trial counsel provided representation below the standard expected of competent counsel or that defendant suffered any prejudice. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

We, therefore, affirm the December 1, 2009 order denying defendant's second PCR petition.

Affirmed.

1 In his first PCR petition, defendant addressed only trial counsel's conduct at trial.