STATE OF NEW JERSEY v. ANTHONY TORRES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY TORRES,

Defendant-Appellant.

______________________________

August 26, 2013

Submitted August 21, 2013 Decided

Before Judges Waugh and Haas.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 93-07-02618.

Anthony Torres, appellant pro se.

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Anthony Torres appeals from the December 1, 2011 order of the Law Division denying his second petition for post-conviction relief (PCR). We affirm.

On July 13, 1993, defendant was charged in a nine-count Essex County indictment with two counts of third-degree possession of a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:35-10a(1) (counts one and five); three counts of third-degree distribution of CDS (heroin), N.J.S.A. 2C:35-5b(3) (counts two, six, and seven); three counts of third-degree possession with intent to distribute CDS (heroin) within 1,000 feet of a school zone, N.J.S.A. 2C:35-7 (counts three, eight, and nine); and third-degree conspiracy to possess CDS (heroin) with intent to distribute, N.J.S.A. 2C:5-2 (count four). Pursuant to a plea-agreement, defendant pled guilty to third-degree conspiracy to possess heroin with intent to distribute (count four) and third-degree distribution of heroin (count six).

In accordance with the negotiated plea, on October 11, 1994, Judge Harold Fullilove merged count four into count six and sentenced defendant to three years in prison. The remaining counts of the indictment were dismissed and appropriate fines and assessments were imposed. Defendant did not file a direct appeal from his conviction and sentence.

Over fourteen years later, on October 8, 2008, defendant filed a PCR petition alleging, in part, that his trial counsel was ineffective because he did not apprise him of all of the collateral consequences of his guilty plea. On January 29, 2010, Judge Fullilove denied the petition and defendant did not file an appeal.

Almost two years later, on November 17, 2011, defendant filed a second petition for PCR, again asserting that his trial counsel was ineffective because he did not apprise him of the collateral consequences of his guilty plea. On December 1, 2011, Judge Michael Ravin denied defendant's petition in a thorough written opinion. The judge found that defendant's second PCR petition was barred by Rule 3:22-12(a)(2) because it had been filed more than one year after his first petition, which raised virtually identical arguments, had been denied. The judge further found that defendant's second PCR petition was also barred because it did not rely upon "a new rule of constitutional law," did not assert any new facts that "could not have been discovered earlier through the exercise of reasonable diligence," and did not allege that defendant's counsel on his first PCR petition had been ineffective. R. 3:22-4(b). This appeal followed.

On appeal, defendant argues he "was not made aware of the various collateral consequences as a result of him entering a guilty plea." Defendant is currently serving a sentence on federal charges and he alleges that his federal sentence was "enhanced" because of his 1994 conviction in Essex County. He asserts his trial counsel failed to advise him that he would face enhanced penalties if he were subsequently convicted of a federal charge. Defendant further claims that his trial counsel did not apprise him that, because of his guilty plea, he would not be permitted to obtain a firearms permit, obtain a commercial driver's license, or operate a New Jersey Transit vehicle. These arguments lack merit and we therefore affirm substantially for the reasons set forth in Judge Ravin's written opinion. We add the following comments.

Defendant waited over fourteen years to file his first PCR petition, in which he raised the identical arguments contained in his second petition. He did not file his second PCR petition until almost two years after his first petition was denied. Defendant has not established excusable neglect, exceptional circumstances, or facts demonstrating a serious question about his guilt. State v. Cummings, 321 N.J. Super. 154, 168-69 (App. Div.), certif. denied, 162 N.J. 199 (1999). Accordingly, defendant's second PCR petition is time-barred pursuant to Rule 3:22-12.

As Judge Ravin found, defendant's second PCR petition also did not assert any new law or facts that were not known to him at the time he filed his first petition, which had also unsuccessfully raised a claim that his trial counsel failed to apprise him of the collateral consequences of his guilty plea in 1994. Contrary to defendant's contention, there is "no constitutional requirement that a defense attorney must advise a client or defendant that if he or she commits future criminal offenses that there may be adverse consequences by way of enhancement of the penalty." State v. Wilkerson, 321 N.J. Super. 219, 223 (App. Div.), certif. denied, 162 N.J. 128 (1999). Thus, defendant's claim, that his attorney should have advised him in 1994 that his guilty plea could cause him to receive an enhanced sentence if he committed federal offenses in the future, plainly lacks merit.

Relying upon our decision in State v. Agathis, 424 N.J. Super. 16 (App. Div. 2012), defendant argues that his trial counsel was ineffective because he did not advise him that his conviction might affect his future employment opportunities or prevent him from obtaining a permit to possess a firearm. That case, however, is clearly distinguishable from the current matter. In Agathis, we reversed the denial of a defendant's PCR because his attorney provided him with incorrect advice that his conviction would not affect his ability to regain his firearms identification card after he completed his probation. Id. at 18. The defendant had specifically advised his attorney that this issue was critical to his decision to plead guilty and the plea had been postponed several times to enable the defendant's attorney to research the issue. Id. at 20.

Here, on the other hand, defendant does not assert that the impact of his plea on his future employment opportunities or his ability to obtain a gun permit was important to him at the time of his plea. There is also no indication whatsoever that defendant's attorney provided him with incorrect advice on this, or any other, issue. Therefore, we find no basis to disturb Judge Ravin's decision to deny defendant's second petition for PCR.