Opinion
DOCKET NO. A-0564-14T3
07-06-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ERNESTO DEL VALLE, Defendant-Appellant.
Ernesto Delvalle, appellant pro se. Esther Suarez, Hudson County Prosecutor, attorney for respondent (Jennifer J. Ljungberg, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Suter. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 87-12-1390. Ernesto Delvalle, appellant pro se. Esther Suarez, Hudson County Prosecutor, attorney for respondent (Jennifer J. Ljungberg, Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals from the denial without an evidentiary hearing of his third petition for post-conviction relief (PCR). For reasons that follow, we affirm.
I.
Following a jury trial, defendant was convicted in 1990 of the following crimes: two counts of second-degree armed burglary, N.J.S.A. 2C:18-2; fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree terroristic threats, N.J.S.A. 2C:12-3(a); first-degree kidnapping, N.J.S.A. 2C:13-1(b); and third-degree criminal restraint, N.J.S.A. 2C:13-2.
Defendant did not contest that under the Graves Act, N.J.S.A. 2C:43-6(c), he was subject to an extended term sentence. He declined a hearing on that issue. On June 14, 1990, he was sentenced to an aggregate sentence of life imprisonment plus forty-five years with a forty-seven-and-a- half-year period of parole disqualification, mandatory fines and penalties.
The Graves Act requires the imposition of a mandatory prison term if defendant committed one of certain designated offenses and used or possessed a gun during its commission. First-time offenders face a mandatory period of parole ineligibility. N.J.S.A. 2C:43-6(c). If convicted of a second Graves Act offense, as is the case with defendant, the court is required to sentence to both an extended term and a parole disqualifier to "be fixed at or between one-third and one-half of the sentence imposed by the court or five years, whichever is greater[.]" N.J.S.A. 2C:43-7(c).
We have omitted the actual sentences for each count for which he was convicted, but together they reflect the aggregate sentence as noted.
Defendant filed a direct appeal where he questioned the length of his sentence and other issues. He did not contest the appropriateness of the Graves Act requirement for an extended term sentence, but challenged the mandatory parole ineligibility term. We affirmed, but modified his sentence to life plus twenty-five years, with a thirty-seven-and-a-half-year period of parole disqualification. State v. Del Valle, No. A-6323-89 (App. Div. Nov. 18, 1992), certif. denied, 133 N.J. 444 (1993). Defendant filed two PCR petitions, each of which was denied. State v. Del Valle, No. A-6166-93 (App. Div. Oct. 26, 1995), certif. denied, 143 N.J. 519 (1996); State v. Del Valle, No. A-3412-97 (App. Div. May 4, 1999), certif. denied, 161 N.J. 335 (1999). Defendant additionally filed a motion to correct an illegal sentence, which was denied and which we likewise rejected on appeal. State v. Del Valle, No. A-5346-05 (App. Div. May 4, 2007), certif. denied, 194 N.J. 271 (2008).
Defendant also filed two habeas corpus petitions which were denied. Del Valle v. Morton and Poritz, No. 94-3020 (D.N.J. Jan. 9, 1995); Del Valle v. Morton and Poritz, No. 96-1995 (D.N.J. Aug. 8, 1996).
Defendant filed this PCR petition, his third, on May 30, 2014, in which he argued he required an evidentiary hearing to determine the impact of Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), on his sentence. Defendant also asserted ineffective assistance of counsel by his prior PCR attorneys.
Defendant did not appeal from the denial of his application to appoint a public defender.
On August 18, 2014, Judge John A. Young, Jr., denied defendant's petition in a written opinion holding that defendant's current PCR petition was out of time under Rule 3:22-12(a)(2) and Rule 3:22-4(b). Additionally, defendant did not provide any facts in support of his claims of ineffective assistance of counsel.
Defendant presents the following sole point for our consideration in his appeal:
THE TRIAL COURT ERRED IN DENYING APPELLANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM A[N] EVIDENTIARY HEARING WHERE THE PETITION RELIED [ON] A RETROACTIVE APPLICABLE NEW RULE OF CONSTITUTIONAL LAW, THUS, IN THE INTEREST OF JUSTICE THE MATTER SHOULD BE REVERSED AND REMANDED.We are not persuaded by defendant's arguments and affirm.
II.
A petition for PCR provides "a built-in 'safeguard that ensures that a defendant was not unjustly convicted.'" State v. Nash, 212 N.J. 518, 540 (2013) (quoting State v. McQuaid, 147 N.J. 464, 482 (1997)). It is not a substitute for direct appeal nor a vehicle to relitigate the underlying merits. R. 3:23-2; State v. Preciose, 129 N.J. 451, 459 (1992).
Because this is defendant's third PCR application, he must comply with the requirements under Rule 3:22-4(b) or suffer dismissal. That Rule provides:
A second or subsequent petition for post-conviction relief shall be dismissed unless:
(1) it is timely under R. 3:22-12(a)(2); and
(2) it alleges on its face either:
(A) that the petition relies on a new rule of constitutional law, made retroactive to defendant's petition by the United States Supreme Court or the Supreme Court of New Jersey, that was unavailable during the pendency of any prior proceedings; or
(B) that the factual predicate for the relief sought could not have been discovered earlier through the exercise of reasonable diligence, and the facts underlying the ground for relief, if proven and viewed in light of the evidence as a whole, would raise a reasonable probability that the relief sought would be granted; or
(C) that the petition alleges a prima facie case of ineffective assistance of
Rule 3:22-12(a)(2) requires the filing of the petition within one year from when one of these grounds commenced.counsel that represented the defendant on the first or subsequent application for post-conviction relief.
[R. 3:22-4(b).]
Defendant contends his PCR petition qualifies for relief because Alleyne established a new right, which should apply retroactively to his petition. Additionally, he contends his PCR attorneys were deficient by not raising this constitutional issue.
We find no error by Judge Young in rejecting defendant's petition under any of these grounds. Although defendant alleged ineffective assistance of PCR counsel, we denied his first PCR petition in 1995 and his second in 1999. The Alleyne case relied on by defendant was not decided until June 17, 2013, fourteen years after his second PCR petition was denied. A prima facie case of ineffective assistance of counsel requires a showing both of deficient performance by counsel and resulting prejudice to defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). This time frame is such that defendant cannot establish a prima facie case under Rule 3:22-4(b)(2)(C) based on the performance of his PCR attorneys that occurred many years before Alleyne was decided.
Similarly, although the Supreme Court's opinion in Alleyne was issued in 2013, the factual predicates for defendant's sentence were not new, thus defeating any relief for him under Rule 3:22-4(b)(2)(B). Defendant was fully aware of the convictions used by the judge at sentencing to support the extended term. Defendant's PCR did not assert any new facts.
Defendant's primary contention is that Alleyne constituted a new rule of constitutional law that should be applied retroactively in his case. Judge Young properly rejected defendant's arguments.
Defendant cites Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309, 182 L. Ed. 2d 272 (2012) (concerning a procedural bar to habeas corpus), and Harris v. United States, 367 F.3d 74 (2d Cir. 2004) (discussing appointment of counsel in federal habeas corpus matters), but neither case has applicability to the issues raised by defendant's PCR petition. --------
Beginning with Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed. 2d 435, 455 (2000), the United States Supreme Court has held that, "[o]ther than the fact of a prior conviction," any fact that subjects a defendant to a longer sentence, beyond the statutory maximum, must be submitted to a jury and proven beyond a reasonable doubt. In doing so, the Court in Apprendi declared unconstitutional New Jersey's hate-crime statute because it permitted judicial fact-finding, made by a preponderance of the evidence, to increase a second-degree offense to a first-degree offense if a weapon were used to "intimidate" based on a victim's particular characteristics. Id. at 490-97.
In State v. Franklin, 184 N.J. 516 (2005), our Supreme Court applied Apprendi to a case involving a second-time offender under the Graves Act. Franklin involved a defendant who was convicted of "passion/provocation manslaughter, N.J.S.A. 2C:11-4(b)(2), (c)[,]" but acquitted on all gun-related offenses. Id. at 524. Despite this, the trial judge found defendant used a gun when committing manslaughter. Ibid. This was his second conviction under the Graves Act, which then required an extended term, N.J.S.A. 2C:43-6(c). Ibid. The Court held the Sixth Amendment was violated. Id. at 521, 540. To comport with the Constitution, the issue of handgun possession during a crime had to be submitted to the jury for resolution. Id. at 534, 540. The Court found "[t]hat remedy not only complie[d] with the dictates of Apprendi, but also best achieve[d] the Legislature's purpose in enacting the Graves Act." Id. at 539-40.
In State v. Rountree, 388 N.J. Super. 190, 195 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007), we rejected the assertion that Apprendi applied retroactively on collateral review involving a second-time offender under the Graves Act. The defendant in Rountree was convicted by a jury, but in sentencing him, the judge relied upon defendant's admission at an earlier plea hearing that he possessed a handgun when he committed the robbery for which he was convicted. Id. at 195, 203. In rejecting the application of Apprendi to Rountree's PCR petition, we cited to Schriro v. Summerlin, 542 U.S. 348, 358, 124 S.Ct. 2519, 2526-27, 159 L.Ed. 2d 442, 452-53 (2004), wherein the Supreme Court held under federal constitutional law that Apprendi did not apply retroactively to cases on collateral review. Id. at 203-04. We rejected a similar claim under our Constitution, noting that Franklin only had accorded "pipeline retroactivity" to its decision, meaning that the holding applied to cases on direct appeal as of the date of the 2005 decision and to defendants who raised the issue at trial or on direct appeal, which Rountree had not. Id. at 204-05.
The Court noted in Franklin that it applied "pipeline retroactivity" for the same reasons stated in State v. Natale, 184 N.J. 458, 494 (2005), in that full retroactivity would create an unwarranted burden on the courts. Franklin, supra, 184 N.J. at 540. This holding also was consistent with the "'general rule of nonretroactivity' on collateral review." State v. Gaitan, 209 N.J. 339, 365 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013) (quoting Danforth v. Minnesota, 552 U.S. 264, 279, 128 S. Ct. 1029, 1040, 169 L. Ed. 2d 859, 871 (2008)). We concluded in Rountree that "any expansion of the Court's express definition of pipeline retroactivity can come only from the Supreme Court." Rountree, supra, 388 N.J. Super. at 206.
Defendant's present PCR petition relies on Alleyne, which was decided on June 17, 2013, within one year from when defendant's PCR was filed. Alleyne held that the "imposition of a mandatory minimum sentence based upon a fact that was not submitted to the jury for determination beyond a reasonable doubt violates the Sixth Amendment right to a jury trial[,]" State v. Grate, 220 N.J. 317, 323 (2015), thus extending the principle of Apprendi in the context of mandatory minimum sentences.
Our Supreme Court applied Alleyne in Grate. Id. at 334-35. In vacating defendants' sentences who had directly appealed, the Grate Court found that the mandatory minimum sentence under N.J.S.A. 2C:39-5(i), which "require[d] the sentencing court to impose a period of parole ineligibility 'if the court [found]' a substantial likelihood that the defendant was involved in organized criminal activity[,]" was unconstitutional because it rested on judicial fact-finding and not fact-finding by a jury. Id. at 334. The Court determined in Grate that Alleyne applied because it was decided "during the pendency of defendants' appeal" and noted that "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final . . . ." Id. at 335 (quoting State v. Wessells, 209 N.J. 395, 412 (2012)).
Defendant contends in this PCR petition that Alleyne should apply to invalidate his sentence, which included an extended term under the Graves Act. We decline to do so for reasons similar to those we expressed in Rountree. Our Supreme Court's recent application of Alleyne in Grate was limited to cases on direct appeal or that were not yet final. Neither Grate nor even Alleyne indicated that the principle announced in Alleyne should be applied retroactively to cases on collateral review. Its application in that fashion would create an unwarranted burden on the court. See, e.g., Rountree, supra, 388 N.J. Super. at 205; (similarly noting this concern in a different retroactivity matter); see also Natale, supra, 184 N.J. at 494.
In holding as we do, there is no need for us to decide the applicability of Alleyne as if this were a direct appeal. Indeed, the incomplete record does not allow us to ascertain whether defendant's extended term under the Graves Act was based on convictions arising from jury verdicts or guilty pleas.
In any event, defendant also was sentenced to an extended term as a persistent offender under N.J.S.A. 2C:44-3(a), which remains a discretionary determination to be made by the sentencing judge. See State v. Pierce, 188 N.J. 155, 161-62 (2006). That determination did not implicate Apprendi, which expressly exempted "fact[s] of a prior conviction" from its purview, Apprendi, supra, 530 U.S. at 490, 120 S. Ct. at 2362-63, 147 L. Ed. 2d at 455, or Alleyne, which, in recognizing Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), did not displace the discretion traditionally exercised by a sentencing court. Alleyne, supra, ___ U.S. at ___ n.1, ___, 133 S. Ct. at 2160 n.1, 2163, 186 L. Ed. 2d at 326-27 n.1, 331; see also Grate, supra, 220 N.J. at 337-38 (recognizing the trial court's general discretion over sentencing determinations after reversing a mandatory minimum sentence based on judicial fact-finding). Thus, defendant's status as a persistent offender stands as an additional impediment to defendant's challenge to his sentence, post-conviction.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION