Opinion
DOCKET NO. A-2699-11T3
04-22-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ERICK A. TORRES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Maven and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-01-0146.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Erick A. Torres appeals from the July 22, 2011 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
On January 12, 2004, a Camden County Grand Jury returned Indictment No. 04-01-0146, charging defendant with first-degree robbery, N.J.S.A. 2C:15-1 (count one); fourth-degree theft, N.J.S.A. 2C:20-3 (count two); fourth-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(e) (count three); and conspiracy to commit robbery, N.J.S.A. 2C:5-2 (count four). The charges stemmed from a September 8, 2003 armed robbery in Camden County where defendant used a toy gun that looked like a real gun to rob the sales clerk in a Cherry Hill department store of boots and money. When questioned by the police, defendant waived his Miranda rights and provided them with a confession.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
On October 4, 2004, defendant appeared before Judge Robert G. Millenky. Defense counsel explained to the court that he met with defendant to review discovery and discuss the case, and defendant was prepared to enter an open plea to first-degree robbery. The judge engaged defendant in a plea colloquy, in which defendant confirmed he understood the charges, the sentencing consequences of an open plea, and the mandatory No Early Release Act (NERA), N.J.S.A. 2C:43-7.2 implications. Defendant also stated he understood he was waiving his rights to a jury trial and to file an appeal. Finally, defendant confirmed he read, understood, and signed the plea forms, and entered the plea voluntarily. Defendant entered an open guilty plea to count one of the indictment charging first-degree robbery. In exchange for the plea, the State agreed to dismiss the other charges.
On December 3, 2004, Judge Millenky sentenced defendant to twelve years in prison subject to eighty-five percent parole ineligibility, pursuant to NERA. We upheld his sentence on our Excessive Sentencing Oral Argument Calendar. The Supreme Court denied certification. State v. Torres, 189 N.J. 647 (2007).
Defendant attempted to file a motion to withdraw his guilty plea in October 2009, asserting (1) the plea was neither knowing, voluntary, nor intelligent because he did not understand English, and (2) it was not supported by a sufficient factual basis. Defendant also raised a claim of ineffective assistance of counsel. For unknown reasons, the motion was never properly filed. Defendant then filed a pro se PCR petition on April 6, 2010, restating a desire to withdraw his plea on the grounds of an insufficient factual basis. Assigned counsel submitted a brief in support of the petition, contending the trial court erred in (1) denying defendant a further continuance to review discovery, (2) not providing defendant with an interpreter, and (3) sentencing defendant in the first-degree range when the facts supported a second-degree crime. PCR counsel further argued trial counsel failed to (1) argue mitigating factors and (2) file motions to dismiss the indictment or challenge the voluntariness of his confession.
On July 22, 2011, without an evidentiary hearing, Judge Edward J. McBride, Jr., considered the October 2009 motion to withdraw defendant's guilty plea and his 2010 PCR petition and denied all relief. In an oral opinion, the judge addressed the timeliness of the petitions in light of Rule 3:22-12(a)(1), and determined defendant had until December 3, 2009, five years from the date of his conviction, to file a petition for PCR. As such, the judge recognized defendant's efforts to file a motion to withdraw the plea in October 2009 as a petition for post-conviction relief, and ruled the filing timely. However, the judge found the April 2010 petition to be untimely pursuant to Rule 3:22-12(a)(1), as it was filed more than five years after the judgment of conviction. In addition to the time bar, the judge found defendant's claim of ineffective assistance of counsel in his April 2010 petition to be procedurally barred pursuant to Rule 3:22-5.
Rule 3:22-12(a)(1) provides generally that no petition for PCR may be filed more than five years after the judgment of conviction unless the petitioner establishes excusable neglect and denying the petition would result in a fundamental injustice.
Rule 3:22-5 provides that "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[.]"
As for the claims in defendant's October 2009 motion, the judge found that all claims except the claim of ineffective assistance of counsel were procedurally barred pursuant to Rule 3:22-4(a). The judge allowed defendant to assert the ineffective assistance of counsel claim because he recognized that it is "ordinarily pursued exclusively in a petition for post-conviction relief." Notwithstanding the procedural bars, the judge considered the merits of the petition, determined an evidentiary hearing was not warranted, and rejected each claim as lacking substantive merit.
Rule 3:22-4(a) provides that any grounds for relief "not raised in the proceedings resulting in the conviction" or "in any appeal taken in any such proceedings" is procedurally barred from assertion in a petition for PCR.
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In this appeal, defendant raises the following issues for our consideration:
I. THE TRIAL COURT IMPROPERLY FOUND DEFENDANT'S CLAIMS TO BE PROCEDURALLY BARRED.We agree with the PCR judge's reliance on Rule 3:22-12(a)(1) to find that the issues raised in the April 2010 PCR petition were time-barred. Defendant has not presented sufficient facts to support a finding of excusable neglect to justify an extension of time to file the petition. R. 3:22-12(a).
II. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR POST-CONVICTION
RELIEF WITHOUT AFFORDING DEFENDANT AN EVIDENTIARY HEARING.
We also agree with the PCR judge that all claims in the October 2009 motion, except the claim of ineffective assistance of counsel, were procedurally barred pursuant to Rule 3:22-4(a). In State v. Nash, 212 N.J. 518 (2013), our Supreme Court explained that a "petitioner is generally barred from presenting a claim on PCR that could have been raised at trial or on direct appeal, R. 3:22-4(a)." Id. at 546. If a PCR petitioner had ample opportunity to raise a claim in the prior proceeding, then that claim is barred from being heard. R. 3:22-4(a). However, our Supreme Court has cautioned against barring claims of ineffective assistance of counsel on procedural grounds pursuant to this rule. State v. Preciose, 129 N.J. 451, 460 (1992).
Rule 3:22-4(a) provides three exceptions to the general rule, if the court finds:
(1) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; orAside from his claim of ineffective assistance of counsel, defendant has not provided any basis upon which this court could find that one of the exceptions to Rule 3:22-4(a) applied to warrant consideration of his claims by the PCR judge. Here, defendant filed a direct appeal but only raised the claim of excessive sentence. Therefore, aside from his claim of ineffective assistance of counsel, Rule 3:22-4(a) acts to bar his claims on PCR.
(2) that enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice; or
(3) that denial of relief would be contrary to a new rule of constitutional law under either the Constitution of the United States or the State of New Jersey.
A ground could not reasonably have been raised in a prior proceeding only if defendant shows that the factual predicate for that ground could not have been discovered earlier through the exercise of reasonable diligence.
[R. 3:22-4(a).]
On appeal, defendant reasserts his arguments and claims of attorney error, yet fails to present "a prima facie claim in support of post-conviction relief." Preciose, supra, 129 N.J. at 462. To establish a prima facie claim of ineffective assistance of counsel, the defendant is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). The Strickland court further noted that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Ibid. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, a defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012) (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
A trial court may hold an evidentiary hearing to determine whether counsel was ineffective. R. 3:22-10(b). However, the trial court should only do so "if a defendant has presented a prima facie claim in support of post-conviction relief." Preciose, supra, 129 N.J. at 462. In order to establish a prima facie case, defendant must demonstrate "the reasonable likelihood of succeeding under the test set forth in Strickland[.]" Id. at 463. Absent defendant's showing of a prima facie case, an evidentiary hearing is not required. Claims must be more than "bald assertions." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). The PCR judge properly denied an evidentiary hearing here where defendant failed to assert a prima facie case.
We have considered defendant's contentions in light of the record and applicable legal principles, and conclude that they are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Accordingly, we affirm substantially for the reasons expressed by Judge McBride in his well-reasoned July 22, 2011 oral opinion.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION