STATE OF NEW JERSEY v. JOSE GILBERTO RAMOS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4397-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE GILBERTO RAMOS,

Defendant-Appellant.

_________________________________

May 2, 2012

Submitted April 16, 2012 Decided

Before Judges A. A. Rodr guez and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 92-08-1533.

Jose Gilberto Ramos, appellant pro se.

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Gina Giordano, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from an April 5, 2011 order denying his third petition for post-conviction relief (PCR). He challenges the jury charge and verdict sheet, and contends that the PCR judge erred by barring his petition. We affirm.

In 1996, defendant was convicted for attempted murder, murder, and numerous counts of crimes of violence, weapons offenses, and endangering the welfare of a child.1 The judge imposed an aggregate sentence of life in prison with forty-one and a half years of parole ineligibility. We affirmed the convictions, but remanded for re-sentencing. State v. Ramos, No. A-5598-95 (App. Div. March 19, 1998), certif. denied, 156 N.J. 384 (1998). On remand, the judge re-imposed an aggregate term of life in prison plus twenty years, with forty years of parole ineligibility. By order dated January 18, 2001, an excess sentencing panel of this court affirmed defendant's sentence. State v. Ramos, No. A-3095-99 (App. Div. January 18, 2001).

In 2001, the court denied defendant's first petition for PCR. We affirmed the denial and the Court denied certification. State v. Ramos, No. A-4731-01 (App. Div. April 8, 2003), certif. denied, 177 N.J. 494 (2003). In 2005, the court denied defendant's second petition for PCR. We affirmed the denial and the Court denied certification. State v. Ramos, No. A-2837-05 (App. Div. February 20, 2007), certif. denied, 190 N.J. 393 (2007). Defendant then unsuccessfully sought a writ of habeas corpus in federal court. Ramos v. Ricci, No. 07-2719 (D.N.J. October 17, 2008), certificate of appealability denied, No. 08-4641 (3d Cir. January 14, 2010).

In 2010, defendant filed his third petition for PCR. On April 5, 2011, Judge Sheila Venable denied defendant's third petition and stated:

[Defendant's] petition for [PCR] is untimely pursuant to Rule 3:22-12(a)(2). In addition, [defendant] is barred by Rule 3:22-4(b)(2)(B) because the sum of the defendant's arguments rest on deficiencies in the jury charge and the verdict sheet. These arguments were previously raised by the defendant and therefore could have been discovered earlier though the exercise of due diligence.

The [c]ourt has determined that good cause does not exist.

This appeal followed.

On appeal, defendant raises the following points:

POINT I

THE TRIAL COURT ERRED IN CONCLUDING THAT DEFENDANT'S SUCCESSIVE PETITION FOR POST-CONVICTION RELIEF WAS PROCEDURALLY BARRED.

A. DEFENDANT WAS ENTITLED TO A ONE-YEAR GRACE PERIOD UPON THE JANUARY 2010 ADOPTION OF THE AMENDED PCR RULES.

B. DEFENDANT USED DUE DILIGENCE IN ADVANCING THE FACTUAL PREDICATE UPON WHICH HIS PCR CLAIMS RELIED.

C. THE PROCEDURAL BAR, IF ANY WAS CAUSED BY DEFENDANT'S PREVIOUS ATTORNEYS AND SHOULD THEREFORE BE EXCUSED.

POINT II

THE COURT'S INSTRUCTION ON DIMINISHED CAPACITY CREATED AN UNREASONABLE LIKELIHOOD THAT JURORS RELIED UPON AN UNCONSTITUTIONAL UNDERSTANDING OF THE LAW IN REACHING A VERDICT

A. THE COURT FAILED TO REQUIRE JURORS TO FIRST DETERMINE WHETHER APPELLANT HAD UNDERLYING MENTAL DISEASE OR DEFECT AND THEN DETERMINE WHETHER THE DISEASE OR DEFECT PREVENTED HIM FROM ACTING PURPOSELY OR KNOWINGLY.

B. THE COURT FAILED TO INSTRUCT JURORS THAT MENTAL DISEASE OR DEFECT WAS A CONDITION THAT INTERFERES WITH COGNITIVE ABILITY SUFFICIENT TO PREVENT OR INTERFERE WITH FORMATION OF THE REQUISITE INTENT OR MENS REA.

POINT III

THE COURT'S CHARGE ON MURDER, COMBINED WITH THE INSTRUCTIONS FOR MURDER IN THE VERDICT SHEET, PREVENTED JURORS FROM CONSIDERING A VERDICT FOR AGGRAVATED MANSLAUGHTER BASED ON A FINDING OF DIMINISHED CAPACITY OR INTOXICATION WITHOUT THE PRESENCE OF PASSION/PROVOCATION.

We have also reviewed defendant's letter reply brief filed December 15, 2011.

We have carefully considered the arguments made by defendant in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Venable in her April 5, 2011 written opinion.

1 Defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1) and (2) (Count One); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(3) (Count Three); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (Count Four); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (Count Six); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Seven); fourth-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:29-9b (Count Eight); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (Count Nine); first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3 (Count Ten); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Count Eleven); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (Count Twelve); first-degree aggravated assault, N.J.S.A. 2C:12-1(4) (Count Thirteen); third-degree terroristic threats, N.J.S.A. 2C:12-3b (Count Fourteen); first-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Fifteen); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (Count Sixteen).