STATE OF NEW JERSEY v. ANGEL CASTRO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6325-06T46325-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANGEL CASTRO,

Defendant-Appellant.

_________________________________

 

Submitted November 12, 2009 - Decided

Before Judges Graves and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 93-11-2983.

Yvonne Smith Segars, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, of counsel and on the brief).

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Twelve years after pleading guilty to a fourth-degree sexual offense and receiving a probationary term pursuant to a plea bargain, defendant Angel Castro filed a petition for post-conviction relief ("PCR"). In his petition, defendant alleged that he was not present when the offense occurred, and that his trial counsel in 1994 was ineffective because he inadequately investigated defendant's alibi claim. Defendant further maintains that his counsel was ineffective in recommending that he accept the proposed plea agreement.

The Law Division dismissed defendant's PCR petition, finding it both untimely and without substantive merit. We agree with those assessments, and consequently affirm the dismissal.

We need not belabor the facts that emerge from the record. As documented in the pretrial discovery materials, the State's proofs show that on October 2, 1993, the thirteen-year-old victim, S.B., was accosted in a park in Egg Harbor Township. S.B.'s attacker tried to pull her into a red pickup truck and have sex with her. She resisted, and, in the course of their struggle, the attacker touched her breasts and tried to take her clothes off. She was able to break free, and fled the scene. S.B. reported the incident to the police. She subsequently was presented with an array of photographs and identified defendant, who was then eighteen years old, as her attacker.

Defendant was indicted and charged with two counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b; third-degree criminal restraint, N.J.S.A. 2C:13-2; third-degree terroristic threats, N.J.S.A. 2C:12-3a; and fourth-degree stalking, N.J.S.A. 2C:12-10b. Although defendant had just turned eighteen and had no other adult offenses, he had a substantial juvenile record.

Plea negotiations ensued and the State and defendant entered into an agreement. Pursuant to that agreement, the State elected to dismiss the third-degree charge and all of the fourth-degree charges except for one count of criminal sexual conduct, to which defendant agreed to plead guilty. Additionally, the agreement called for the State to recommend a probationary sentence, subject to up to 364 days in the County jail, plus various fines and penalties.

On January 18, 1994, defendant appeared before the trial court and entered his guilty plea to a violation of N.J.S.A. 2C:14-3b, consistent with the terms of the plea agreement. He assured the court under oath that he was entering his guilty plea voluntarily and that he was satisfied with the advice that he had received from his counsel. Defendant also confirmed that the information on his plea form was correct.

In responding to questions in the colloquy providing the factual basis for his plea, defendant admitted that he had touched the victim's breasts for the purposes of sexually arousing himself. This factual basis was consistent with a statement that defendant had made to an interviewer for the presentence report, in which he said that "I had touched the breast of S[.]B[.] and with all my heart apologize to [her]."

Defendant was sentenced in February 1994 to a five-year term of probation, conditioned upon 364 days in the County jail, plus various appropriate fines and penalties. The sentence was consistent with the plea agreement. Defendant did not appeal his sentence. He completed his term of confinement in the County jail, and was released. His probation was terminated in October 1999, without improvement.

In April 2006, more than a dozen years after his sentence was imposed, defendant filed a PCR petition. Defendant contended that his trial counsel in 1994 was ineffective in allegedly failing to investigate the case, including a failure to follow up with defendant's employer or a co-worker to corroborate his alibi. Defendant also claimed that his counsel had improperly urged him to agree to the proposed plea terms, despite his alleged innocence. Defendant attempted to attribute the delay in filing his PCR application to his young age and his alleged ignorance of court processes.

After hearing oral argument, the Law Division judge ruled that defendant's PCR petition was time-barred under Rule 3:22-12, as it was filed substantially more than five years after sentencing. The court found no excusable neglect existed to justify the delay. The judge also found that defendant's substantive arguments lacked merit. In particular, the judge found that defendant had not presented a prima facie case reflecting the ineffective assistance of his counsel. Consequently, the judge dismissed defendant's petition without an evidentiary hearing. This appeal followed.

Having carefully reviewed the record, we are satisfied that the dismissal of defendant's PCR petition was procedurally and substantively sound. The twelve-year delay in bringing the petition was not justified. Moreover, we discern no evidence of trial counsel's ineffectiveness, nor any proof of actual prejudice flowing from that representation. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) (requiring proof of counsel's improper performance and actual prejudice); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).

We affirm the dismissal of defendant's petition, substantially for the cogent reasons expressed in Judge Robert Neustadter's oral opinion dated May 14, 2007.

 
Affirmed.

(continued)

(continued)

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A-6325-06T4

December 15, 2009