STATE OF NEW JERSEY v. VICTOR MARTINEZ

NOT FOR PUBLICATION WITHOUT THE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.

VICTOR MARTINEZ,

Defendant-Appellant.

________________________________

August 1, 2016

Submitted October 19, 2015 Decided

Before Judges Messano and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 91-06-1978.

Victor Martinez, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Sarah Lichter, Deputy Attorney General, of counsel and on the brief.)

PER CURIAM

Defendant Victor Martinez appeals the Law Division order denying his motion to correct an illegal sentence. For the reasons that follow, we affirm.

On May 6, 1992, defendant was convicted by a jury of first-degree felony murder, N.J.S.A. 2C:11-3(a)(3), and first-degree armed robbery, N.J.S.A. 2C:15-1. After merger, defendant was sentenced to a thirty-year prison term with a mandatory thirty-year period of parole ineligibility.

Defendant filed a direct appeal asserting that: his statements to police should have been suppressed, the trial court erred in its jury charge in several regards, his sentence was excessive, and cumulative error. We affirmed, and our Supreme Court denied certification. State v. Martinez, No. A-5886-91, (App. Div. July 18), certif. denied, 139 N.J. 184 (1994).

Defendant filed petitions for post-conviction relief (PCR) in July, 1996, November 2003, and August 2005, which were all denied by the trial court. We affirmed each denial, and our Supreme Court denied certification following our affirmances.1 State v. Martinez, No. A-5463-97, (App. Div. December 22, 1999), certif. denied, 163 N.J. 395 (2000); State v. Martinez, No. A-3886-03 (App. Div. January 25), certif. denied, 183 N.J. 590 (2005); and State v. Martinez, No. A-3726-05 (App. Div. January 26), certif. denied, 190 N.J. 256 (2007).

On June 6, 2013, defendant filed a motion to correct an illegal sentence, which included contentions related to his conviction. In an order and letter opinion dated January 31, 2014, Judge Michelle M. Fox denied the motion. Judge Fox reasoned that most of defendant's arguments sought to overturn his conviction, and could not be re-addressed because they were rejected by our court on July 18, 1994, when defendant's direct appeal was denied. As for defendant's claim of sentence disparity, the judge determined that defendant's motion, filed approximately twenty-one years after his judgment of conviction, was time-barred under Rule 3:21-10(a), and not subject to the exceptions pursuant to Rule 3:21-10(b). Judge Fox also noted that defendant's sentence was within our sentencing guidelines. Finally, upon review of defendant's judgment of conviction, she found that he received the correct amount of jail credits.

Defendant appeals from the denial of that motion. He makes the following arguments on appeal

Point I

THE SIXTH AND FOURTEENTH AMENDMENT [OF] THE CONSTITUTION GUARANTEES THE RIGHT TO A FAIR TRIAL, THUS, THE CHANGE IN A MODEL JURY INSTRUCTION ON ACCOMPLICE LIABILITY AS ANNOUNCED IN [BIELKIEWICZ2] CONSTITUTES A NEW RULE REQUIRING A REVERSAL OF [] DEFENDANT'S CONVICTION FOR RETRO[SPECTIVE] AND EX POST FACTO APPLICATION AND PURSUANT TO CASE LAW [STATE V. JACKMON,] 305 [N.J. SUPER.] 288 [(1997)].

Point II

DEFENDANT'S CONVICTION FOR ROBBERY AND FELONY MURDER MUST BE REVERSED FOR THE FOLLOWING REASON

(A) The Trial Court Failed to Draw a Correct Distinction in the Jury Charge and Verdict Sheet Between First Degree Robbery and Second-Degree Robbery, Which Led to the Defendant Initially Being Convicted of Robbery Without Specification as to Degree; and

(B) The Charge of Robbery Did Not Include a Definition of Attempt[ed] Theft, Thus Constituting Plain Error Pursuant to [Rule] 2:10 2[.]

Point III

A HEARING IS REQUIRED WITH RESPECT TO BALANCING AGGRAVATING AND MITIGATING FACTORS IN FIXING THE APPROPRIATE SENTENCE.

Point IV

THE SENTENCING DISPARITY BETWEEN [] DEFENDANT AS AN ACCOMPLICE AND THAT OF [] CO-DEFENDANT (SANTANA) AS A PRINCIPAL VIOLATES NEW JERSEY'S [CRIMINAL] CODE [] GOAL OF UNIFORM SENTENCING.

Point V

MODIFICATION OF [] DEFENDANT'S SENTENCE IS IN THE INTEREST OF JUSTICE AND JUSTIFIABLE BY THE UNIQUE CIRCUMSTANCES SURROUNDING THE PARTICULAR CASE AT HAND[.]

Point VI

THE RETROACTIVE CANCELLATION OF DEFENDANT'S WORK AND COMMUTATION CREDITS AFTER THEY WERE ALREADY ENTERED ON[] HIS OFFICIAL CLASSIFICATION RECORDS, VIOLATE THE CONSTITUTION OF NEW JERSEY AND UNITED STATES[.]

We have considered defendant's contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant a discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Fox in her letter opinion.

Affirmed.

1 In between the first two PCR petitions, defendant filed a petition in federal court for habeas corpus. In July 2002, United States District Judge Pisano denied defendant's petition. In March 2003, the United States Court of Appeals for the Third Circuit dismissed defendant's appeal from that order.

2 State v. Bielkiewicz, 267 N.J. Super. 520 (App. Div. 1993).