STATE OF NEW JERSEY v. RUBEN MOLINA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5020-07T45020-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RUBEN MOLINA,

Defendant-Appellant.

_______________________________

 

Submitted July 14, 2009 - Decided

Before Judges Fisher and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Accusation No. 99-11-00271.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kimmo Z. Hussain, Designated Counsel, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Ruben Molina appeals from the October 26, 2007 order denying his motion for post-conviction relief (PCR). We affirm.

In 1999, the Middlesex County Prosecutor charged defendant under Accusation No. 99-11-00271 with third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. On November 19, 1999, defendant pled guilty to the Accusation in exchange for the State recommending a non-custodial sentence. In reviewing the penal consequences defendant would incur if the court accepted his guilty plea, the court informed defendant that he would be not only subject to the registration requirement of Megan's Law, but also to community supervision for life. As to the latter, the court explained: "Which means that there is a special kind of parole that you're going to be subject to for at least fifteen years where you have to report, you have to keep employed, there's restrictions on travel, a lot of restrictions. Understand?" In response, the defendant answered: "Yeah."

On April 24, 2000, after finding aggravating sentencing factors N.J.S.A. 2C:44-1a(2) and (9), and mitigating sentencing factors N.J.S.A. 2C:44-1b(7) and (10), the court sentenced defendant to a two-year term of probation and to community supervision for life pursuant to N.J.S.A. 2C:43-6.4. "So[,] a special condition of your probation is to comply with Megan's Law[,] including community supervision for life." The court also imposed all appropriate fines and penalties. Defendant did not appeal.

On February 26, 2007, defendant filed a pro se petition for PCR, arguing that he was denied effective assistance of trial counsel. After the court appointed assigned counsel to represent defendant, defendant filed a supplemental certification dated August 3, 2007, stating that he had initially informed his trial counsel that he was innocent and wanted a trial, but was "told [by his attorney] to plead guilty to stay out of jail." Defendant asserted that his attorney never explained that if he pled guilty he would be subject to constant supervision for life; and when he entered the plea, although the court provided a Spanish interpreter, he did not fully understand "much of what was said" because the interpreter spoke a dialect of Spanish that was difficult for him to comprehend, and as such, he "did not understand that [he] would be on parole for life."

On October 26, 2007, the trial court denied defendant's petition. In so doing, the court reasoned:

In this case, the claim that the defendant did not put forth a factual basis for the plea, the [c]ourt, in terms of the plea form and the voir dire, does recognize from the application that the plea forms were in English and were not in Spanish. That issue was not raised during the plea proceedings. That issue is a claim that's made over seven years since the entry of the plea. The plea forms do indicate on their face that the term of community service was changed to community supervision, and that [defendant] did state at the time of the plea voir dire, he stated to the [c]ourt that his attorneys had gone over the forms with him in Spanish, and he stated that he understood what he signed. . . .

. . . .

Mr. Molina maintains the ineffective assistance of counsel claim was based upon the failure of his attorney and the [c]ourt to clarify his confusion regarding the details of community supervision for life, but the [c]ourt finds that based upon what was reflected in the transcript, that this defendant was provided the opportunity, and if there was a question about that, the transcript certainly reflects an opening for him to indicate that, which did not happen. There was no request for any further clarification, and he did indicate that he knew and he understood the consequences of his plea. So, insofar as that concern is made a basis for this petition, I don't find that grounds exist to support the claim of ineffective assistance of counsel as it relates to the aspect of the knowledge of the community supervision consequences of the plea.

After reviewing the transcript of the plea colloquy among defendant, his counsel and the court, wherein defendant admitted that he had inappropriately touched the chest and buttock areas of his nine-year-old niece while lying in bed, the court continued:

From this colloquy, it does appear that the petitioner acknowledged that he engaged in the prohibitive behavior and that he acknowledged that he knew the behavior was inappropriate. The fact that the petitioner didn't characterize his acts as sexual did not prevent the [c]ourt then from determining that an adequate factual basis for the plea existed.

He admitted that he engaged in the touching of the breast and the butt of a young girl and that he was aware that it was wrong to do so. The defendant's acknowledgement or admission may be understood in light of all the surrounding circumstances. And that's from [State v. Sainz, 107 N.J. 283 (1987)].

. . . .

What would appear clear from this colloquy is the defendant's understanding that the behavior that he acknowledged engaging in was inappropriate, and that in the context of the entire voir dire,. . . the defendant knowingly and voluntarily and intelligently entered a plea of guilty in this matter.

As to the State's argument that the petition was untimely filed, the court agreed:

The untimeliness of the PCR application in terms of being beyond the five-year time frame is expandable in the event that the court finds excusable [neglect]. The [S]tate's argument is that, clearly, [defendant], once he became aware or re[-]aware of the community supervision for life provision of the sentence, did not file an application for post-conviction relief for an additional three years. In light of the determination that the community supervision for life aspect of the sentence was explained to him at the time he entered the guilty plea -- strike that -- at the time that he entered the guilty plea, when further taking into consideration the fact of the inactivity of the three years beyond the point that he did know, I cannot find that there was a basis to conclude that there was excusable [neglect]. And so on procedural grounds, I further find that the application is time barred. . . .

A confirming order denying the motion was entered the same day.

On appeal, defendant argues:

POINT I.

PETITIONER WAS DENIED THE EFFECTIVE ASSITANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO INFORM HIM OF ALL THE PENAL CONSEQUENCES OF HIS GUILTY PLEA.

POINT II.

PETITIONER'S GUILTY PLEA WAS WITHOUT A FACTUAL BASIS AND THE COURT'S ACCEPTANCE OF THE GUILTY PLEA VIOLATED R. 3:9-2 AND PETITIONER'S FEDERAL AND STATE CONSTITUTIONAL DUE PROCESS RIGHTS AND THIS COURT SHOULD VACATE THE GUILTY [PLEA] TO AVOID A FUNDAMENTAL INJUSTICE.

POINT III.

PETITIONER'S LATE FILING OF HIS PETITION FOR POST-CONVICTION RELIEF CONSTITUTED EXCUSABLE NEGLECT.

Defendant also filed a supplemental certification with additional exhibits in support of his counsel's legal arguments.

The decision whether to conduct an evidentiary hearing on a claim of ineffective assistance of counsel rests primarily on the trial court's determination whether a defendant has made a prima facie showing of the claim. Rule 3:22-1 does not require that an evidentiary hearing be granted in every PCR proceeding. State v. Preciose, 129 N.J. 451, 462 (1992). Where a "court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, . . . or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, . . . then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (internal citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

Claims of ineffective assistance of counsel are governed by the standards set forth in Strickland v. Washington. State v. Fritz, 105 N.J. 42, 58 (1987) (holding the precepts of Strickland have been adopted by New Jersey). For a defendant to establish a prima facie case of ineffective assistance of counsel under Strickland, the defendant must show that defense "counsel's performance was deficient," and that "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Preciose, supra, 129 N.J. at 463-64 (1992) (quoting Strickland, supra, 466 U.S. at 694; 104 S. Ct. at 2068, 80 L. Ed. 2d at 698); see also State v. Allegro, 193 N.J. 352, 366 (2008).

"'The first prong of the [Strickland] test is satisfied by a showing that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case.'" Allegro, supra, 193 N.J. at 366 (quoting State v. Castagna, 187 N.J. 293, 314 (2006)). In assessing counsel's representation, there is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Accordingly, acts or omissions of counsel must amount to more than mere tactical strategy. Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95.

To prove the second prong of Strickland, a defendant must prove "'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Allegro, supra, 193 N.J. at 367 (quoting State v. Loftin, 191 N.J. 172, 198 (2007)). It is "an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Ibid. (quoting Castagna, supra, 187 N.J. at 315). It is against these principles that we consider defendant's arguments.

We first consider defendant's argument that the trial court erred in determining his PCR petition time barred. We reject the argument.

Under Rule 3:22-12(a), a petition for PCR for reasons other than to correct an illegal sentence must be filed within five years of entry of the judgment of conviction, unless there is a showing of excusable neglect. The rule's time constraint should only be relaxed for exceptional circumstances. State v. Afanador, 151 N.J. 41, 52 (1997). "As time passes, justice becomes more elusive and the necessity for preserving finality and certainty of judgments increases." Ibid. Accordingly, "[a]bsent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay." Ibid.

In determining whether to consider relaxing the five-year period under the rule, a trial court "should consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an 'injustice' sufficient to relax the time limits." Ibid. (quoting State v. Mitchell, 126 N.J. 565, 580 (1992)). Nonetheless, "a court may relax the time bar if adherence to it would result in an injustice." State v. McQuaid, 147 N.J. 464, 485 (1997).

Here, the judgment of conviction was entered on April 24, 2000, and defendant filed his PCR petition on February 26, 2007. Although the petition was filed almost two years beyond the time prescribed by Rule 3:22-12, defendant contends that the time bar under that rule should be relaxed. Defendant argues that he was "not aware of the period of lifetime community supervision until after his period of probation ended," and that the petition was filed "within five years of his becoming aware of the community supervision requirement."

We reject defendant's contentions and determine that defendant has failed to establish exceptional reasons for relaxation of the rule. Contrary to his argument, the record indicates that he was informed by the court at the plea proceeding and at sentencing that he would be subject to community supervision for life. Additionally, defendant acknowledges that he was informed again of his community supervision for life obligation after completing his two-year term of probation. Thus, at least three years remained within the five-year period in which defendant could have filed his PCR petition, but he failed to do so. Defendant has failed to present a reasonable explanation why he did not file the petition within that three-year period.

For the sake of completeness, we have considered defendant's remaining arguments in light of the record and applicable law. We conclude that neither of them are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Venezia in her oral opinion of October 26, 2007.

Affirmed.

N.J.S.A. 2C:7-1 to -21.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).

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11

A-5020-07T4

RECORD IMPOUNDED

August 28, 2009