STATE OF NEW JERSEY v. HECTOR VALENTIN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6996-03T46996-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HECTOR VALENTIN,

Defendant-Appellant.

______________________________

 

Submitted May 23, 2006 - Decided June 8, 2006

Before Judges Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 90-07-3284.

Yvonne Smith Segars, Public Defender, attorney for appellant (Timothy P. Reilly, designated counsel, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Joan E. Love, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Hector Valentin, appeals from the denial of his petition for post-conviction relief (PCR). We affirm

Defendant was convicted of first degree murder and related offenses in 1991. He was sentenced on March 8, 1991. We affirmed his conviction in 1994, and certification was denied the same year. State v. Valentin, Docket No. A-4709-90T4 (App. Div.), certif. denied, 136 N.J. 29 (1994). Defendant filed a PCR in January 2004.

Following oral argument, Judge Lester denied the petition without holding an evidentiary hearing. In an oral opinion on July 13, 2004, Judge Lester concluded that the petition was "clearly time barred." She noted that the Public Defender's Office had sent defendant a letter shortly after the Supreme Court denied certification, advising of him of his further appeal rights and his right to file a PCR. Defendant did not deny receiving the letter. His PCR counsel advised the judge that defendant did not "recall" receiving it.

Judge Lester also reviewed the merits of defendant's PCR, concluding that his claim concerning the diminished capacity jury charge had already been raised and "ruled upon by the appellate court" on direct appeal. She also concluded that even if, as defendant claimed, his attorney had told him to "sing" to himself during the trial, defendant presented nothing to suggest that the result of the trial would have been different if defense counsel had encouraged rather than discouraged his client from talking to him during the trial. Nor did defendant specify how the trial might have been conducted differently if his trial attorney were better prepared. She also concluded that defendant had not substantiated his claim of ineffective assistance of appellate counsel, as he did not indicate what if any issues appellate counsel had failed to raise, only that appellate counsel did not meet with him.

On this appeal, defendant raises the following issues:

POINT I: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED TO THE LAW DIVISION SINCE THE POST-CONVICTION COURT ERRED IN DENYING DEFENDANT-APPELLANT A HEARING ON HIS PETITION FOR POST-CONVICTION RELIEF ALLEGING INEEFECTIVE-ASSISTANCE-OF-COUNSEL.

A. DEFENDANT-APPELLANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL PURSUANT TO STRICKLAND V. WASHINGTON, 466 U.S. 648 (1983), REQUIRING THE COURT TO CONDUCT A HEARING ON THE ISSUES AS TO WHETHER TRIAL COUNSEL ADEQUATELY PREPARED AN INTOXICATION DEFENSE AND/OR WHETHER TRIAL COUNSEL ADEQUATELY CONSULTED WITH HIS CLIENT.

B. DEFENDANT-APPELLANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL PURSUANT TO STRICKLAND V. WASHINGTON, 466 U.S. 648 (1983), AS TO WHETHER OR NOT TRIAL COUNSEL ADEQUATELY CONSULTED WITH DEFENDANT AND WHETHER THIS FAILURE RESULTED IN CROSS-EXAMINATION RESULTING IN COUNSEL ELICITING THE STATE'S EXPERT OPINION THAT DEFENDANT WAS NOT AMENABLE TO REHABILITATION.

POINT II: THE TRIAL COURT ERRED IN DENYING THE PETITION FOR POST CONVICTION RELIEF ON PROCEDURAL GROUNDS.

A. THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT'S CLAIM IS TIME-BARRED PURSUANT TO R. 3:22-12.

B. THE CLAIMS RAISED BY DEFENDANT IN THE WITHIN PETITION WERE NOT LITIGATED ON DIRECT APPEAL AND FAILURE TO RAISE ALL INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS ON DIRECT APPEAL DID NOT PROCEDURALLY BAR CLAIM IN POST-CONVICTION PROCEEDING.

Having reviewed the record, including transcripts of the defense and prosecution experts' testimony from defendant's 1991 trial, we conclude that these contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief comments.

Judge Lester correctly concluded that the PCR was untimely. Under Rule 3:22-12(a), the petition should have been filed within five years following entry of the judgment of conviction on March 8, 1991. The PCR was filed almost eight years out of time. Defendant provided no proof of "excusable neglect,"

R. 3:22-12(a), or "exceptional circumstances." State v. Mitchell, 126 N.J. 565, 580 (1992).

Further, as Judge Lester correctly noted, defendant is procedurally barred from raising in a PCR issues raised and decided on direct appeal, as well as issues that could have been raised on direct appeal. R. 3:22-4, -5; State v. Merola, 365 N.J. Super. 203, 216 (Law Div. 2002), aff'd o.b. 365 N.J. Super. 82 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). Moreover, defendant's arguments in support of his claim of ineffective assistance of counsel were vague, unsupported by evidence, and did not constitute the prima facie case necessary to warrant an evidentiary hearing. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); State v. Preciose, 129 N.J. 451, 462 (1992).

Affirmed.

 

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A-6996-03T4

June 8, 2006