STATE OF NEW JERSEY v. JOSE A. PEREZ
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4094-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSE A. PEREZ,
Defendant-Appellant.
___________________________
Submitted October 1, 2020 – Decided November 17, 2020
Before Judges Fuentes and Whipple.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 98-11-4417.
Jose A. Perez, appellant pro se.
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Lucille M.
Rosano, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant, Jose Perez, appeals from the April 12, 2019, order entered by
Judge Alfonse J. Cifelli denying his motion to correct an illegal sentence under
Rule 3:21-10(5). We affirm.
On November 5, 1998, defendant was charged in Essex County with four
counts of second-degree conspiracy to kidnap, N.J.S.A. 2C:5-2 and N.J.S.A.
2C:13-1; four counts of first-degree kidnapping, N.J.S.A. 2C:13-1b; four counts
of second-degree conspiracy to murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3;
two counts of first-degree murder, N.J.S.A. 2C:11-3a(1) and N.J.S.A. 2C:11-
3a(2); two counts of first-degree felony murder, N.J.S.A. 2C:11-3a(3); and two
counts of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3.
State v. Romero, Nos. A–6593–99, A–0282–00, A-5704-00, A-0834-00, A–
4974–99 (App. Div. Apr. 12, 2004) (slip. op. at 3-7) (outlining the original
charges against the defendants in the 2000 trial, including defendant Perez).
A jury found defendant guilty of numerous counts and the court sentenced
him to two consecutive forty-year sentences for first-degree murder and felony
murder, two concurrent thirty-year sentences for kidnapping and three
concurrent twenty-year sentences for conspiracy to murder and conspiracy to
commit kidnapping on April 5, 2000. Defendant appealed the judgment of
conviction and sentence imposed. In a consolidated opinion, we affirmed the
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defendant's convictions, remanded the matter for resentencing on defendant's
murder conviction, and instructed that the conspiracy sentence must also be
modified. Romero, slip op. at 92-101. The Supreme Court denied defendant's
petition for certification on September 23, 2005. State v. Perez, 181 N.J. 548
(2004).
Later, defendant filed a petition for post-conviction relief (PCR) on April
3, 2006. The Honorable Peter V. Ryan, J.S.C., presided over the PCR hearing
and on January 7, 2013, the judge issued a written opinion denying the petition.
Defendant appealed and we affirmed. State v. Perez, No. A-4031-12 (App. Div.
Oct. 28, 2014) (slip op. at 1-3). The Supreme Court denied certification.
On February 5, 2019, defendant filed a pro se motion to correct an illegal
sentence. Pertinently, defendant now asserts his sentence was illegal because
the absence of a transcript of a pretrial conference or documentation of a pretrial
memorandum "compels [this court] to conclude the defendant was not made
aware by the court or counsel that upon the setting of the trial date plea
negotiations would terminate pursuant [to] [Rule] 3:9-3(g)." In April 2019, the
court issued an order denying the motion as procedurally barred by Rules 3:22-
4 and 3:22-12(2). The court stated:
I have received and considered the motion filed on
February 5, 2019, by you as defendant, pro se, for
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correction of [an] illegal sentence imposed April 25,
2000, under Indictment No. 98-11-04417-I, pursuant to
the [No] Early Release Act [N.J.S.A. 2C: 43-7.2]. The
New Jersey Court Rule applicable to the motion
provides in pertinent part substantially as follows:
"Rule 3:21-10, Reduction or Change of Sentence
(a) Except as provided in paragraph (b) hereof, a motion
to reduce or change a sentence shall be filed not later
than [sixty] days after the date of the judgment of
conviction. The court may reduce or change a sentence,
either on motion or on its own initiative, by order
entered within [seventy five] days from the date of the
judgment of conviction and not thereafter.
(b) A motion may be filed and an order may be entered
at any time (1) changing a custodial sentence to permit
entry of the defendant into a custodial or noncustodial
treatment or rehabilitation program for drug or alcohol
abuse, or (2) amending a custodial sentence to permit
the release of a defendant because of illness or infirmity
of the defendant, or (3) changing a sentence for good
cause shown upon the joint application of the defendant
and prosecuting attorney, or (4) changing a sentence as
authorized by the Code of Criminal Justice, or (6)
changing a custodial sentence to permit entry into the
Intensive Supervision Program, or (7) changing or
reducing a sentence when a prior conviction has been
reversed on appeal or vacated by collateral attack."
This motion was filed well beyond the period of sixty
days limited for filing such a motion under the rule.
Furthermore, the good cause exception to the rule is not
properly invoked because the motion is not a joint
application by the defendant and prosecuting attorney,
and no good cause is shown or even claimed.
A-4094-18T2
4
Moreover, although the motion does not seek relief
because of illness or drug or alcohol abuse under an
exception to the rule, any such relief is proscribed until
completion of service of the term of parole eligibility
under the No Early Release Act. State v. Mendel, 212
N.J. Super. 110 (App. Div. 1986).
Furthermore, even if your letter was not barred under
[Rule] 3:21-10 it would be wholly barred under [Rule]
3:22-4. As you may recall your first petition for Post-
Conviction relief was denied by Judge Ryan on January
7, 2013. [Rule] 3:22-4 requires dismissal unless the
petition is timely and alleges on its face (1) that the
petition relies upon a new rule of law or; (2) that the
factual predicate for the relief could not have been
discovered earlier and, if proven, would raise a
reasonable probability that relief would be granted or;
(3) that the petition raises a prima facie case of
ineffective assistance of counsel that represented
defendant on the first or subsequent application for
[PCR].
In your case your motion is not timely under [Rule]
3:22-12(2).
This appeal followed. Defendant raised the following argument on
appeal:
FAILURE TO COMPLY WITH THE STRUCTURES
OF [RULE] 3:9-1(f) [RULE] 3:9-3(g) VIOLATED
PETITIONERS RIGHT TO DUE PROCESS WHICH
IS A VIOLATION OF THE FOURTEENTH
AMENDMENT OF THE [UNITED STATES
CONSTITUTION] [AND] ARTICLE 1 PARAGRAPH
1 OF THE NEW JERSEY [CONSTITUTION].
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However, defendant's arguments do not address the reasons given by the
judge who denied the requested relief. Defendant asserts his sentence was
illegal because the absence of a pretrial conference transcript or documentation
of a pretrial memorandum compels us to conclude that he was not made aware
that upon the setting of the trial date, plea negotiations would terminate under
Rule 3:9-3(g). But notably, the record does not contain the motion presented to
the court and we cannot ascertain whether these arguments were raised below.
Based upon the record presented to us we affirm for the reasons expressed by
Judge Cifelli.
Affirmed.
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