STATE OF NEW JERSEY v. ANGEL RIVERA

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

ANGEL RIVERA,

Defendant-Appellant.

________________________________________________________________

Submitted May 13, 2014 Decided May 30, 2014

Before Judges Koblitz and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-03-0227.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Angel Rivera appeals from a January 14, 2013 decision1 denying his petition for post-conviction relief (PCR) without an evidentiary hearing. The PCR petition was filed approximately eight years after defendant pled guilty to two third-degree crimes. We affirm, remanding only to correct the sentence, which the State concedes illegally imposed parole supervision for life, N.J.S.A. 2C:43-6.4(a); N.J.A.C. 10A:71-6.12.

A fifteen-year-old reported that she had been sexually assaulted by defendant, who was twenty-eight years old at the time. After he waived his Miranda2 rights, defendant admitted having consensual sexual intercourse with the victim, but claimed that he thought she was older. The interviewing officer wrote down defendant's statements and read them back to him because defendant is illiterate.

A plea agreement was reached in which defendant pled guilty to third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2), from an unrelated indictment. The State agreed to dismiss the remaining charges from both indictments and agreed to recommend five-year concurrent prison terms on both charges in addition to Megan's Law3 requirements and community supervision for life, N.J.S.A. 2C:43-6.4 prior to January 14, 2004.

The judge sentenced defendant to five-year concurrent prison terms on both counts to which he pled guilty. Defendant was also sentenced to community supervision for life for the charge of endangering the welfare of a child.4

Defendant's direct appeal concerned his sentence only. We remanded "for resentencing in accordance with State v. Natale, [184] N.J. 458 (2005)[5] and State v. Abdullah, 184 N.J. 497 (2005).[6]" State v. Rivera, A-0702-06, remanded for resentencing by order, April 4, 2007. In May 2007 defendant was resentenced to the same custodial terms, although he had completed his custodial sentence. The judge again imposed Megan's Law requirements, but this time clearly imposed parole supervision for life rather than community supervision for life. N.J.S.A. 2C:43-6.4 as amended effective January 14, 2004.

After his release from custody, defendant was convicted of a fourth-degree violation of his special condition of sentence, N.J.S.A. 2C:43-6.4(d), in 2008 and again in 2011. He was also convicted of third-degree failure to comply with sex offender monitoring, N.J.S.A. 30:4-123.94, in 2010.7

Defendant then petitioned for PCR in 2012, approximately eight years after entering his guilty plea and approximately four years and ten months after his re-sentencing. The PCR judge first found that the petition was time-barred because it was made nearly eight years after defendant's conviction and that defendant failed to prove excusable neglect or "fundamental injustice." The judge evaluated the petition on the merits as well, indicating that defense counsel had not been ineffective, and that defendant did not demonstrate he would not have pled guilty had his attorney performed differently.8

On appeal defendant raises the following issues:

POINT I: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING ON DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL UNDER RULE 3:22 CRITERIA.

POINT II: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR RESENTENCING BECAUSE IMPOSITION OF PAROLE SUPERVISION FOR LIFE WAS UNLAWFUL.

POINT III: THE PCR COURT MISAPPLIED ITS DISCRETION IN APPLYING RULE 3:22-12 BECAUSE THE SIGNIFICANCE OF THE ISSUES RAISED, AND THEIR IMPACT ON THE INTEGRITY OF THE CRIMINAL JUSTICE SYSTEM, WARRANTED RELAXATION OF THE 5 YEAR TIME BAR.

POINT IV: THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

I

A PCR judge's fact-findings at an evidentiary hearing should be upheld if supported by sufficient credible evidence in the record, with deference to the trial court's finding of credibility. State v. Harris, 181 N.J. 391, 420 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). "However, where the court does not hold an evidentiary hearing, we may exercise de novo review over the factual inferences the trial court has drawn from the documentary record." State v. O'Donnell, __ N.J. Super. __, __ (App. Div. 2014) (slip op at 24) (citations omitted) (quoting Harris, supra, 181 N.J. at 421). This court reviews issues of law de novo, State v. W.B., 205 N.J. 588, 603 n.4 (2011).

An appellate court reviewing an ineffective assistance of counsel claim engages in "highly deferential" scrutiny to trial counsel to "avoid viewing [counsel's] performance under the distorting effects of hindsight." State v. Arthur, 184 N.J. 307, 318-19 (2005) (internal quotation marks and citations omitted).

II

The State agrees that the imposition of parole supervision for life was improper and should be changed to community supervision for life. A court may correct an illegal sentence at any time before it is completed. State v. Schubert, 212 N.J. 295, 309 (2012).

Defendant was originally sentenced to community supervision for life for endangering the welfare of a child; that was changed to parole supervision for life on remand from this court. Community supervision for life, N.J.A.C. 10A:71-6.11, is a punitive measure that imposes certain requirements on individuals convicted of sexual offenses prior to January 14, 2004. Schubert, supra, 212 N.J. at 305. Individuals convicted of sexual crimes after that date are subject to the stricter controls of parole supervision for life, N.J.A.C. 10A:71-6.12.

Because defendant committed the offense of endangering the welfare of a child in 2003, he is subject to community supervision for life, not parole supervision for life. N.J.S.A. 2C:43-6.4(a); N.J.A.C. 10A:71-6.12(a). We therefore remand for the entry of an amended judgment of conviction (JOC) reflecting that defendant should be subject to the provisions of community supervision for life. R. 2:10-3.

III

Any person convicted of a crime in New Jersey may petition for post-conviction relief, R. 3:22-1, but must do so timely, R. 3:22-12. Rule 3:22-12(a)(1) provides that

no petition may be filed pursuant to this rule more than [five] years after the date of entry pursuant to Rule 3:21-5 of the [JOC] that is being challenged unless it alleges facts showing that the delay . . . was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice.

Defendant's original JOCs were filed on October 25, 2004 and March 24, 2005, nearly nine years and eight years, respectively, prior to defendant's petition for PCR. While it is true that the JOCs were later amended on remand from this court, the original date of entry is what controls, not the later amended dates due to sentencing corrections. State v. Dugan, 289 N.J. Super. 15, 19-20 (App. Div.), certif. denied, 145 N.J. 373 (1996).

Thus, defendant must prove both excusable neglect for the delay and a reasonable probability that his assertions, if true, would render the enforcement of the conviction a "fundamental injustice." R. 3:22-12(a)(1). Defendant makes no effort to satisfy the first requirement.

"When 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) (quoting State v. Mitchell, 126 N.J. 565, 580 (1992)).

The petition itself must include the claimed grounds for excusable neglect. State v. Cann, 342 N.J. Super. 93, 101-02 (App. Div.), certif. denied, 170 N.J. 208 (2001). Defendant's petition, however, did not allege any reasons to explain the delay in filing his PCR petition.

Defendant's appellate brief likewise does not address excusable neglect, essentially asserting that the alleged ineffective assistance of counsel is alone sufficient to relax the time bar. In the absence of any assertion of excusable neglect whatsoever, the judge's order dismissing the petition as time-barred must be affirmed.

Affirmed. Remanded for entry of amended JOC only.

1 The judge's written decision bears the language "so ordered" on the last page. A formal signed order in addition to the opinion would have been preferable. R. 3:1-4; R. 4:42-1.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3 N.J.S.A. 2C:7-1 to -23.

4 The judge said during sentencing that he was imposing parole supervision for life, but the judgment of conviction for this charge states that defendant is subject to community supervision for life.

5 Natale removed presumptive terms from the sentencing code. 184 N.J. at 489.

6 Abdullah required sentencing judges to state on the record the reasons for any given sentence. 184 N.J. at 512.

7 We were not provided with the JOCs from these convictions.

8 PCR counsel did not raise the illegal sentence provision of parole supervision for life.