STATE OF NEW JERSEY v. FERNANDO ROSARIO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2118-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FERNANDO ROSARIO,

Defendant-Appellant.

___________________________________________

July 2, 2013

 

Submitted January 8, 2013 Decided

 

Before Judges Fisher and St. John.

 

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 03-11-0748.

 

Joseph E. Krakora, Pubic Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

 

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

 

Defendant Fernando Rosario appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We remand for a determination as to whether defendant has met the requirements for relaxing the procedural time-bar.

I.

We briefly summarize the relevant procedural history and the facts based on the record before us.

Pursuant to a negotiated plea agreement, defendant pleaded guilty to aggravated manslaughter as charged in Accusation 03-11-0748. On January 23, 2004, he was sentenced to a twenty-year prison term with an eighty-five percent period of parole ineligibility pursuant to N.J.S.A. 2C:43-7.2, the No Early Release Act (NERA). The judgment of conviction was signed on February 20, 2004. Defendant appealed his sentence and conviction. We affirmed his conviction but remanded for resentencing. State v. Rosario, No. A-4465-03 (App. Div., December 23, 2005). On August 24, 2007, defendant was re-sentenced to a twenty-year term subject to NERA, and he appealed. We affirmed the sentence. State v. Rosario, No. A-3274-07 (App. Div., April 1, 2009).

On April 30, 2009, slightly more than five years after defendant's judgment of conviction, he filed a pro-se petition for PCR. On February 1, 2010, PRC counsel filed a brief in support of defendant's petition. Defendant claimed that his sentence was illegal and that his plea counsel had been ineffective given that counsel failed to apprise defendant of his plea options and failed to present available defenses. The only reason defendant provided for the lateness in filing his PCR petition was his pending appeals.

The PCR judge instructed counsel to file a brief which addressed only the issue of the lateness of defendant's petition. Counsel believed the petition was timely and, therefore, never argued excusable neglect and did not address defendant's substantive claims. Defendant did not request oral argument.

Without the benefit of oral argument, the PCR court denied defendant's petition because it was not timely filed, given that the judgment of conviction was entered on February 20, 2004, and the PCR petition was not filed until April 30, 2009.1 It is from this order that defendant appeals.

II.

Defendant presents the following issues for our consideration on appeal:

POINT ONE

 

THE DENIAL OF MR. ROSARIO'S PETITION MUST BE REVERSED AND THE MATTER REMANDED BECAUSE MR. ROSARIO WAS DEPRIVED OF HIS RIGHT TO COUNSEL DURING HIS INITIAL PCR.

POINT TWO

 

THE DENIAL OF MR. ROSARIO'S PETITION MUST BE REVERSED AND THE MATTER REMANDED BECAUSE PCR COUNSEL RENDERED INEFFECTIVE ASSISTANCE. (Not Raised Below).

 

POINT THREE

 

DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF IS NOT TIME-BARRED BECAUSE HIS FAILURE TO FILE HIS PETITION WITHIN FIVE YEARS OF HIS CONVICTION WAS DUE TO EXCUSABLE NEGLECT, THERE WAS NO PREJUDICE TO THE STATE, AND BECAUSE THE INTERESTS OF JUSTICE WARRANT RELAXATION OF THE TIME BAR.

 

Certain principles guide our consideration of the issues before us on appeal. "Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for PCR:

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

 

(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

 

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . [;]

 

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

"To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate [a] reasonable likelihood of succe[ss] under the test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984)[.]" Preciose, supra, 129 N.J. at 463. Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The two-part test set forth in Strickland was adopted by this State in State v. Fritz, 105 N.J. 42, 58 (1987).

Defendant must satisfy a modified Strickland standard:

When a guilty plea is part of the equation, . . . a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases and (ii) that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.

 

[State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (internal quotation marks omitted).]

 

In order for defendant to obtain relief based on ineffective assistance grounds, he 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 disposition of the charges. See, e.g., Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 58.

A first petition for PCR must be filed within five years of the date of the judgment of conviction. R. 3:22-12(a). A late filing may be considered if the petition itself shows excusable neglect for the late filing and that a fundamental injustice will result if defendant's claims are not considered on their merits. State v. Brewster, 429 N.J. Super. 387, 400 (App. Div. 2013). The five-year period is not stayed or tolled by appellate proceedings. State v. Dillard, 208 N.J. Super. 722 (App. Div.), certif. denied, 105 N.J. 27 (1986). The date of the judgment of conviction controls even if there are subsequent sentencing proceedings. State v. Dugan, 289 N.J. Super. 15 (App. Div.), certif. denied, 145 N.J. 373 (1996).

In determining whether to relax the time bar, a 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." State v. McQuaid, 147 N.J. 464, 485 (1997). Absent compelling extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay. State v. Afandor, 152 N.J. 41, 52 (1997). Where the deficient representation of counsel affected "a determination of guilt or otherwise wrought a miscarriage of justice a procedural rule otherwise barring post-conviction relief may be overlooked to avoid a fundamental injustice." Brewster, supra, 429 N.J. Super. at 400 (citing State v. Nash, 212 N.J. 518 (2013)).

Although the trial judge has discretion regarding whether to grant oral argument, given what is at stake for the defendant there is a strong presumption in favor of it on a petition for PCR. State v. Mayron, 344 N.J. Super. 382, 387 (App. Div. 2001). In fact, because of this strong presumption, the Supreme Court has recently held that a defendant does not have to specifically request it. State v. Parker, 212 N.J. 269, 283 (2012). In determining whether to grant oral argument, the court should weigh the following factors: the apparent merits and complexity of the issues; whether argument of counsel would add to the written positions; and whether the goals and purposes of the PCR procedure are furthered by oral argument. Id. at 282. When a PCR court determines that oral argument is not necessary, it must provide a statement explaining its reasoning. Ibid.

Defendant filed his petition after the five-year limitation had passed. The time is not tolled by appeals or other proceedings. However, defendant asserts that if the court had heard oral argument in keeping with the requirements of Parker, his attorney could have demonstrated why it was necessary to relax the procedural bar.

Here, the court gave no reasons for its determination not to hear oral argument which might have established whether there were extenuating circumstances that warranted relaxation of the procedural time bar. Given the short interval of approximately two months that had elapsed after the five-year limitation period ended, we believe that the trial court erred in stringently upholding the procedural time bar, especially in light of the fact that the court had not heard oral argument. Even though Parker did not state that its holding should be applied retroactively, it provides guidance that Mayron's strong presumption in favor of oral argument exists whether or not a defendant requests it. As such, we remand for a determination as to whether defendant, after oral argument, has established that circumstances existed which were sufficient to ease the five-year time bar. If defendant can sustain his burden then he can proceed with his obligation to show that his counsel was ineffective.

R

eversed and remanded for further proceedings. We do not retain jurisdiction.

1 The PCR judge permitted defendant's claim that the sentence was illegal, but PCR counsel voluntarily withdrew that claim.