STATE OF NEW JERSEY v. ARIEL BERMUDEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ARIEL BERMUDEZ,

Defendant-Appellant.

___________________________

October 31, 2014

Before Judges Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-11-2538.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Ariel Bermudez appeals from the August 8, 2012 Law Division order, which denied his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

A grand jury indicted defendant for third-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; three counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:38-5(b); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); first-degree armed robbery, N.J.S.A. 2C:15-1; first-degree complicity to commit armed robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6; two counts of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b); third-degree receiving stolen property, N.J.S.A. 2C:39-5(b); and fourth-degree possession of a prohibited weapon, N.J.S.A. 2C:39-3(f). In a separate indictment, defendant was indicted for third-degree conspiracy to commit theft, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-3, and third-degree theft, N.J.S.A. 2C:20-3(a).

The State made a plea offer of a twenty-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. The State and trial counsel advised defendant the offer would be withdrawn if he proceeded with a motion to suppress. Defendant nevertheless proceeded with a motion to suppress two handguns found in a motel room where he was staying, arguing the police officer who discovered the evidence was not lawfully in the room to observe the evidence in plain view.

We incorporate herein the facts adduced at the motion to suppress set forth in State v. Bermudez, No. A-0118-07 (App. Div. Aug. 2, 2010). In a comprehensive oral opinion, Judge Francis P. DeStefano made factual findings and credibility determinations, which the record amply supported, and denied the motion. The judge concluded that defendant's arrest and the entry of the police into the motel room were lawful, as was the protective sweep the police conducted of the motel room to determine whether any dangerous individuals were present. The judge also determined that the seizure of the handguns was justified under the plain view exception to the warrant requirement.

Defendant then entered an open-ended guilty plea to all charges, preserving his right to appeal the denial of his motion to suppress. The State filed a motion for an extended-term sentence pursuant to N.J.S.A. 2C:44-3(d). At the plea hearing, defendant acknowledged that based on a prior armed robbery conviction, he was eligible for a mandatory extended-term sentence pursuant to the Graves Act, N.J.S.A. 2C:44-3(d). The judge warned defendant that by accepting an open-ended plea agreement, he faced a possible term of life imprisonment subject to NERA.

In defendant's presence at a hearing on November 9, 2006, trial counsel represented that he reviewed the extended-term issue with defendant "several times," and defendant understood he was eligible for a mandatory extended-term sentence due to his prior armed robbery conviction. Counsel and Judge DeStefano then discussed the issue at length in defendant's presence. The judge granted the State's motion, and imposed a thirty-year term of imprisonment subject to NERA.

Defendant appealed his conviction, arguing that Judge DeStefano erred in denying his motion to suppress. State v. Bermudez, supra, slip op. at 9. He also argued his sentence was excessive, but did not dispute he was eligible for a mandatory extended-term sentence pursuant to N.J.S.A. 2C:44-3(d). Id. at 10-11. We affirmed defendant's conviction substantially for the reasons Judge DeStefano stated in denying defendant's motion to suppress. Id. at 10-12. We also affirmed defendant's sentence. Id. at 12. Our Supreme Court denied certification. State v. Bermudez, 205 N.J. 79 (2011).

Defendant filed a PCR petition, contending, in part, that trial counsel rendered ineffective assistance by failing to inform him of the motion for an extended-term sentence and his right to a hearing to establish the basis for his extended-term eligibility. Defendant also asserted that trial counsel misadvised him that if he rejected the twenty-year plea offer he would only face a discretionary extended-term sentence, which he could avoid by pleading to an open-ended sentence.

In an August 8, 2012 oral opinion, Judge Anthony J. Mellaci, Jr. denied the petition. The judge determined that "defendant absolutely understood what he was facing with an open-ended plea," and raised no challenge on direct appeal about his eligibility for a mandatory extended-term sentence pursuant to the Graves Act. The judge found that because defendant did not dispute he had a prior Graves Act conviction, there were no grounds for a hearing to contest the basis for his extended-term eligibility. The judge also found that defendant knew he was eligible for a mandatory extended-term sentence pursuant to the Graves Act based on his prior armed robbery conviction and also knew he faced a mandatory extended term of life imprisonment subject to NERA. Accordingly, the judge concluded that defendant failed to establish either prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) -- that counsel's performance was deficient and the deficient performance prejudiced his defense.

In this appeal, defendant contends for the first time that he relied on faulty advice from trial counsel to reject the State's twenty-year plea offer subject to NERA, and instead, pursued a meritless motion to suppress and thereafter entered a open-ended plea and received a mandatory extended-term sentence of thirty years subject to NERA. Generally, we "'will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available' unless the matter involves the trial court's jurisdiction or is of public importance[.]" Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)); accord State v. Robinson, 200 N.J. 1, 20 (2009) (reiterating the principle of not considering an issue raised for the first time on appeal absent an exception). No exception applies here.

Nonetheless, we have considered defendant's contention in light of the record and applicable legal principles and conclude it is 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 Mellaci in his comprehensive and well-reasoned oral opinion denying defendant's PCR petition.