STATE OF NEW JERSEY v. VICTOR ALVARADO

NOT FOR PUBLICATION WITHOUT THE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-3691-16T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

VICTOR ALVARADO,

     Defendant-Appellant.
___________________________

                    Submitted October 17, 2018 – Decided October 31, 2018

                    Before Judges Nugent and Reisner

                    On appeal from Superior Court of New Jersey, Law
                    Division, Union County, Accusation Nos. 15-01-0062
                    and No. 15-01-0063.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Abby P. Schwartz, Designated Counsel, on
                    the brief).

                    Michael A. Monahan, Acting Union County
                    Prosecutor, attorney for respondent (James C. Brady,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Victor Alvarado appeals from a January 23, 2017 order

denying his petition for post-conviction relief (PCR). We affirm.

      Defendant pled guilty to third-degree possession of heroin with intent to

distribute in a school zone,  N.J.S.A. 2C:35-7, for which an extended term was

mandatory due to his prior criminal record. He also pled guilty to third-degree

possession with intent to distribute,  N.J.S.A. 2C:35-5(b)(3). Consistent with the

plea agreement, Judge Regina C. Caulfield sentenced defendant to six years in

prison with a three-year parole bar, and a concurrent term of five years with a

two and one-half year parole bar. We affirmed the sentence on an Excessive

Sentence calendar. State v. Alvarado, No. A-005128-14 (App. Div. Dec. 15,

2015).

      Defendant then filed a PCR petition, seeking to re-argue the sentence, and

contending that his trial and appellate attorneys were ineffective in failing to

argue additional mitigating factors. In a lengthy oral opinion, Judge Caulfield

carefully addressed the merits of defendant's arguments, even though they were

likely barred because they were or could have been raised on direct appeal. See

R. 3:22-4; R. 3:22-5. Notably, the judge found that none of defendant's asserted

mitigating factors were supported by the record, and defense counsel was not

ineffective in failing to assert non-meritorious arguments. Judge Caulfield also

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found that, even if she accepted and considered all of defendant's current

sentencing arguments, she would impose the same sentence due to the

preponderance of aggravating factors.

      On this appeal, defendant raises one point of argument:

            DUE TO INEFFECTIVE ASSISTANCE OF
            COUNSEL,   DEFENDANT     RECEIVED  AN
            IMPROPER SENTENCE, IN VIOLATION OF HIS
            RIGHT TO COUNSEL AND A FAIR TRIAL.

      After reviewing the record, we conclude that Judge Caulfield thoroughly

addressed defendant's contentions, and the arguments are without sufficient

merit to warrant further discussion here. R. 2:11-3(e)(2). We affirm for the

reasons stated in Judge Caulfield's opinion.

      Affirmed.




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