STATE OF NEW JERSEY v. RAMON RODRIGUEZ

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1057-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

RAMON RODRIGUEZ, a/k/a
RAMON ANTONIO RODRIGUEZ,

     Defendant-Appellant.
______________________________

              Submitted February 28, 2018 – Decided April 23, 2018

              Before Judges Currier and Geiger.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Indictment No.
              85-06-0918.

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

              Andrew C. Carey, Middlesex County Prosecutor,
              attorney   for   respondent  (Joie   Piderit,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

        Defendant Ramon Rodriguez appeals from the October 31, 2016

denial of his second petition for post-conviction relief (PCR).
After a review of the arguments in light of the record and

applicable principles of law, we affirm.

     The facts relating to the charges, trial, and post-conviction

proceedings are derived from our opinions in State v. Rodriguez

(Rodriguez I), No. A-4572-86 (App. Div. July 17, 1989) and State

v. Rodriguez (Rodriguez II), No. A-0674-92 (App. Div. May 24,

1994).

     In 1985, defendant was charged with fourth-degree unlawful

possession of a weapon, 
N.J.S.A. 2C:39-5(d) (count one); third-

degree possession of a weapon for an unlawful purpose, 
N.J.S.A.

2C:39-4(d) (count two); and first-degree murder, 
N.J.S.A. 2C:11-3

(count three).   On January 14, 1987, a jury found him guilty of

all three counts.

     Defendant   was   sentenced    on   the   murder    conviction     to    a

custodial term of life with thirty years of parole ineligibility.

After merging the two possessory convictions, the judge sentenced

defendant to a consecutive custodial term of five years with two

and one-half years of parole ineligibility.

     Defendant   subsequently      appealed,    and     we   affirmed     both

defendant's convictions and sentence in Rodriguez I, slip op. at

9.   Defendant's subsequent petition for certification was denied

by the Supreme Court in 1989.       State v. Rodrigues, 
118 N.J. 234

(1989).   On August 6, 1992, the trial court merged the possession

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of the gun for an unlawful purpose conviction with the murder

conviction pursuant to State v. Williams, 
213 N.J. Super. 30 (App.

Div. 1986).

       In 1990, defendant filed a petition for PCR, and a hearing

was   conducted   over   two   days.       In    addition   to   other   issues,

defendant argued that his sentence was illegal.                  The PCR judge

found that the sentence was not illegal, and as there were no

specific   assertions    concerning        the   ineffective     assistance     of

counsel, the petition was denied in June 1992.                    We affirmed.

Rodriguez II, slip op. at 4.           Although we found that the issues

raised in the PCR petition and appeal should have been presented

in the direct appeal, we nevertheless considered the merits of

each issue, including the claims of an illegal sentence and

ineffective assistance of counsel.           Id. at 3-4.     The petition for

certification was denied.         State v. Rodriguez, 
138 N.J. 265

(1994).1




1
   Defendant's petition for a writ of habeas corpus was denied in
Rodriguez v. Morton, No. 95-5116 (D.N.J. Oct. 5, 1995).         A
subsequent certification of probable cause in the Third Circuit
was remanded for a probable cause determination by the District
Court. Rodriguez v. Morton, No. 95-5116 (3rd May 28, 1997) (slip
op. at 1-2). After finding no probable cause for the appeal, the
District Court denied defendant's petition for habeas corpus. Id.
at 7-14.


                                       3                                 A-1057-16T3
     In 2013, defendant filed a motion to correct an illegal

sentence, contending that his sentence should be amended to thirty

years with parole eligibility after thirty years because the

sentencing judge had referred to a 1983 psychological report

prepared for an incident that preceded his 1985 charges.                   The

court denied defendant's motion because he had not provided the

pre-sentence    report,   sentencing     transcript,    and   the    subject

psychological report.     Without these documents, the judge stated

that he could not properly adjudicate defendant's motion.

     On January 7, 2015, defendant filed a second PCR petition and

was assigned counsel. The State provided the psychological reports

referenced in the 1987 pre-sentence report and referred to by

defendant in the earlier motion.         Following oral argument, Judge

Michael A. Toto issued an oral decision denying the PCR petition.

He noted that at the time of sentencing, defendant and his counsel

confirmed that they had reviewed the pre-sentence report and the

psychological    reports.      The       prosecutor    referred      to    the

psychological evaluation in his comments at sentencing.                    The

Judgment of Conviction (JOC) referenced the evaluation.             There was

no objection to the report either at sentencing or to its reference

in the JOC.

     An October 31, 2016 order and written decision followed.

Judge Toto determined:

                                     4                                A-1057-16T3
          [the]    sentence   was   [not]    excessive.
          [Defendant] was sentenced to life with 30
          years parole disqualifier.      [Defendant's]
          sentence was the subject of appellate review
          and the sentence was affirmed. There were no
          objections raised at sentencing regarding the
          use of the prior medical records and reports.
          [Defendant] has not proven that either the
          sentence was illegal or excessive, or that
          prior counsel was ineffective.

The court also held that defendant's PCR petition was procedurally

barred by Rules 3:22-12, 3:22-5, and 3:22-4.      Judge Toto noted

that defendant heard the sentencing judge's comments at the time

of his sentencing and did not question the use of the report.      No

objection to the report was raised in any subsequent proceeding,

including the direct appeal, the first PCR petition, or the habeas

corpus applications.

     On appeal, defendant presents the following issues:

          POINT I:    THE TRIAL COURT ERRED IN DENYING
          DEFENDANT'S    PETITION   FOR   POST-CONVICTION
          RELIEF IN LIGHT OF THE SENTENCING COURT'S
          ERRONEOUS USE OF PREVIOUS PSYCHOLOGICAL
          EXAMINATIONS     IN     IMPOSING    RODRIGUEZ'S
          SENTENCE.

          POINT II: THE TRIAL COURT ERRED IN DENYING
          RODRIGUEZ'S  PETITION BECAUSE  RODRIGUEZ'S
          TRIAL COUNSEL WAS INEFFECTIVE (Not Raised
          Below).

          POINT III: RODRIGUEZ'S APPLICATION FOR POST-
          CONVICTION RELIEF WAS NOT PROCEDURALLY BARRED.




                                5                           A-1057-16T3
       We review the legal conclusions of a PCR judge de novo.                State

v. Harris, 
181 N.J. 391, 420-21 (2004).             The same scope of review

applies to mixed questions of law and fact.               Ibid.

       Defendant contends that the trial court erred in finding that

his PCR petition was time-barred.             He further contends that the

sentencing      court      erred    in   considering       old      psychological

examination reports when imposing his sentence and that his counsel

was ineffective for failing to object to the use of the reports.

       Under Rule 3:22-12(a)(2), a second or subsequent PCR petition

must   be    filed   within   one   year     of   the   date   on   which    a   new

constitutional right is recognized by the courts, "the date on

which the factual predicate for the relief sought was discovered,"

or "the date of the denial of the first or subsequent application

for [PCR] where ineffective assistance of counsel that represented

the defendant on the first or subsequent application for [PCR] is

being alleged." A subsequent PCR petition must be dismissed unless

it complies with Rule 3:22-12(a)(2), and pleads, on its face, one

of the three criteria under Rule 3:22-12(a)(2).                     R. 3:22-4(b).

Further, under Rule 3:22-5, "[a] prior adjudication upon the merits

of   any    ground   for   relief   is   conclusive     whether     made    in   the

proceedings resulting in the conviction or in any post-conviction

proceeding . . . or in any appeal taken from such proceedings."



                                         6                                  A-1057-16T3
      However, a procedural rule otherwise barring post-conviction

relief may be overlooked to avoid a fundamental injustice where

the deficient representation of counsel affected "a determination

of guilt or otherwise wrought a miscarriage of justice."                       State

v. Nash, 
212 N.J. 518, 546 (2013) (quoting State v. Mitchell, 
126 N.J. 565, 587 (1992)).

      Defendant's PCR petition was untimely pursuant to Rules 3:22-

12(a)(2) and 3:22-4(b).            The first PCR petition was denied in

1992.   Defendant now argues that a psychological report from 1983

was improperly used at sentencing in 1987 and that his PCR counsel

from 1992 was ineffective.          We discern no merit in this argument.

As the trial court noted, both defendant and his counsel were

aware of the report's use at the sentencing in 1987 as it was read

aloud during the proceeding.             Defendant and counsel were also

aware of the report as argued in the first PCR petition in 1992.

Defendant failed to show a fundamental injustice.

      Under Rule 3:22-12(a)(2)(B) -(C), defendant was required to

file a subsequent PCR petition within one year of the denial of

his   1992   PCR   petition    because      he   was   aware   of   the    factual

predicate, the psychological report, at the time of his first

petition     and   the   alleged    ineffective    representation         in   1992.

However, defendant did not file the instant PCR petition until

February 2015, twenty-three years later.               We are satisfied that

                                        7                                  A-1057-16T3
defendant's   claim   as   to   the   psychological   report   and     trial

counsel's failure to object to it were properly barred as untimely.

Furthermore, the claim could have been raised in prior proceedings.

See R. 3:22-4(a).

     We decline to address defendant's argument that his sentence

was illegal as it was previously challenged and determined in the

direct appeal.   The claim is, therefore, procedurally barred.            See

R. 3:22-5.

     We conclude that the remainder of defendant's arguments lack

sufficient merit to warrant discussion in a written opinion, Rule

2:11-3(e)(2), and affirm substantially for the cogent reasons

expressed by Judge Toto.

     Affirmed.




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