STATE OF NEW JERSEY v. ALLEN RIVERA

NOT FOR PUBLICATION WITHOUT THE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.

ALLEN RIVERA, A/K/A EDWARD

AYALA, ALLEN RIVERS,

Defendant-Appellant.

_______________________________

July 23, 2015

Before Judges Lihotz and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 03-06-2279.

Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief).

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Allen Rivera appeals from a February 15, 2013 Law Division order denying his application for post-conviction relief (PCR). On appeal, defendant challenges the denial of PCR and his request for an evidentiary hearing, raising these arguments for our consideration

POINT ONE

DEFENDANT HAS SUBMITTED A PRIMA FACIE CASE THAT REQUIRES HE BE GRANTED AN EVIDENTIARY HEARING ON POST[-]CONVICTION RELIEF.

POINT TWO

THE PCR COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST[-]CONVICTION RELIEF AS THE ASSISTANCE OF TRIAL COUNSEL WAS INEFFECTIVE.

In a supplemental pro se brief, defendant argues

POINT I

THE DEFENDANT WAS DENIED HIS RIGHT TO DUE PROCESS BECAUSE TRIAL COUNSEL WAS INEFFECTIVE DURING HIS REPRESENTATION OF THE DEFENDANT DURING THE UNDERLYING LITIGATION.

POINT II

BECAUSE TRIAL COUNSEL PROVIDED INEF[F]ECTIVE ASSISTANCE OF COUNSEL AND BECAUSE THE PETITIONER WAS PREJUDICED THEREBY, THE COURT SHOULD HAVE GRANTED HIS MOTION FOR POST[-] CONVICTION RELIEF[. IN THE ALTERNATIVE, BECAUSE THE PETITIONER] HAS PRESENTED AT LEAST PRIMA FACIE PROOF THAT HE HAD BEEN DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL, THE COURT SHOULD HAVE GRANTED HIM AN EVIDENTIARY HEARING ON THIS ISSUE.

Following review of the record and applicable law, we reject defendant's arguments and affirm. Defendant's petition is time-barred, as it was filed more than five years following his conviction. For completeness, we have reviewed the merits of defendant's arguments on appeal, which we reject because he failed to establish a prima facie claim for ineffective assistance of counsel. Further, defendant's submission fails to present facts showing the delay resulted from excusable neglect. See R. 3:22-12(a)(1). We affirm substantially for the reasons set forth in the PCR judge's oral opinion.

The following facts surrounding defendant's underlying conviction are pertinent to his PCR petition. On January 31, 2002, defendant shot and killed the victim during an argument over money owed from an illegal drug transaction. Defendant was apprehended a short time thereafter and charged under Camden County Indictment No. 03-06-2279 with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2), and related offenses.

Defendant waived his Miranda1 rights and provided a recorded custodial statement to police. In the statement, defendant placed himself at the scene, detailing his confrontation with the victim and the resultant shooting.

On September 24, 2002, prior to defendant's arrest, Hector Feliciano agreed to provide a taped statement to police, implicating defendant as the shooter in return for a reduced sentence imposed on an unrelated offense. Accompanied by his attorney, Feliciano explained he and defendant shared a round of beers at a Camden bar. Defendant told Feliciano he was going "outside [to] chill." Shortly thereafter the victim was shot outside the bar. Feliciano joined the crowd to see what happened and learned from an acquaintance defendant shot the victim.

Prior to trial, defense counsel requested a Miranda hearing to challenge the voluntariness of defendant's custodial statement. Before a hearing was held, defendant entered into a negotiated plea agreement. In exchange for his guilty plea to an amended charge of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), the State agreed to recommend a twenty-year term of imprisonment, subject to an 85% period of parole ineligibility, as imposed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and dismiss all other charges.

At sentencing, the judge accepted the plea agreement and imposed the State-recommended custodial term, finding several applicable aggravating and no applicable mitigating factors. The sentencing judge found applicable aggravating factors three, the risk defendant will commit another offense; six, the extent and seriousness of defendant's prior criminal record; nine, the need from deterring defendant and others from violating the law. See N.J.S.A. 2C:44-1(a)(3), (6) and (9). Applicable fines and penalties were also imposed.

Defendant appealed his sentence as manifestly excessive. We considered his arguments on our excessive sentence oral argument calendar, see R. 2:9-11, and affirmed. Defendant did not seek certification.

Defendant filed two pro se motions to correct what he characterized as an illegal sentence in February and November 2007. The motions were consolidated and treated as his first PCR filing. A series of PCR counsel, which included public defenders and contract counsel, were assigned or hired. Defendant's final PCR counsel, after "review[ing] the trial file, appellate file, ethics file, . . . and other information that [defendant] asked [counsel] to pursue," recommended the PCR petition should be withdrawn.

On June 15, 2011, defendant filed this second PCR petition, alleging trial counsel was ineffective because he failed to (1) advise defendant of a conflict of interest; (2) present and argue mitigating factors during sentencing; and (3) file pre-trial motions to suppress defendant's confession. New PCR counsel was assigned, and on September 7, 2012, filed supplemental pleadings.

The PCR judge considered defendant's request and denied the petition because it was filed outside the applicable statute of limitations and failed to allege grounds sufficient to demonstrate the delay was the result of excusable neglect. Nonetheless, the judge considered the merits of "at least some of [defendant's] arguments," particularly the claimed conflict of interest.

Defendant's allegation of a conflict of interest was predicated upon a June 6, 2012 notarized certification from Feliciano. Feliciano certified he was promised a deal if he implicated defendant as the victim's killer in his statement. Feliciano also identified his attorney, who was the law partner of defendant's trial counsel. Upon receipt of Feliciano's certification, defendant, claiming he just learned of the facts set forth therein, argued trial counsel's conflict of interest prejudiced him, inducing him to plead guilty.

The PCR judge rejected defendant's conflict of interest claim. The PCR judge found Feliciano's counsel was disclosed at the time the statement to police was made and was provided in the initial discovery documents released to defendant by the Prosecutor's Office, long before he entered his guilty plea. Challenges to a possible conflict, therefore, were known or should have been known. Further, the PCR judge noted Feliciano's statement to police contained only hearsay and "never actually implicate[d defendant] as being the shooter based upon any type of observation."

Further, the PCR judge rejected defendant's other arguments, finding he failed to prove counsel's performance was deficient. The judge found counsel's decision not to pursue the Miranda issue was strategic and no error resulted from his declination to argue possible mitigating factors during sentencing because the defendant received a highly favorable sentence, in light of the thirty-year minimum which would be imposed for a conviction on the first-degree offense. This appeal ensued.

"'Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus.'" State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)). A defendant must file his or her first PCR petition within five years of the challenged conviction. R. 3:22-12(a)(1). All subsequent petitions must be filed within a year of either a newly recognized constitutional right, made retroactive for purposes of collateral review; newly realized evidence, previously undiscoverable through reasonable diligence; or from the date a prior PCR petition was denied. R. 3:22-12(a)(2).

"The five-year time limit is not absolute," State v. Milne, 178 N.J. 486, 492 (2004), and may be relaxed if the petition alleges facts showing the delay was due to "excusable neglect" and there is a "reasonable probability" a "fundamental injustice" would result if the petition were barred. R. 3:22-12(a)(1). Further, R. 1:1-2(a) permits courts to relax or dispense "any rule . . . if adherence to it would result in an injustice." See State v. DiFrisco, 187 N.J. at 167-68; State v. Mitchell, 126 N.J. 565, 579 (1992).

In determining whether the alleged facts constitute excusable neglect or otherwise substantiate an injustice sufficient to relax the time bar for filing PCR, we "consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim." State v. Afanador, 151 N.J. 41, 52 (1997). See also DiFrisco, supra, 187 N.J. at 168; State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). More than "a plausible explanation for [the defendant's] failure to file a timely PCR petition" is necessary to sufficiently demonstrate grounds for relaxing the time-bar. Norman, supra, 405 N.J. Super. at 159. "Absent compelling, extenuating circumstances, the burden of justifying a petition filed after the five-year period will increase with the extent of the delay." Mitchell, supra, 126 N.J. at 580.

Defendant filed this PCR petition approximately seven years from the date of his conviction.2 Defendant reasserts the arguments made before the Law Division, maintaining he had no knowledge of the alleged conflict of interest prior to his receipt of the June 2012 certification from Feliciano. He contends this delayed notification of information bearing on the effectiveness of his trial representation necessitates the court to grant an evidentiary hearing to determine whether the delay was excusable. Alternatively, defendant suggests he should not be held accountable for failing to note the alleged conflict, regardless of the date of disclosure, because he is not a trained legal professional. We are not persuaded.

We conclude, as did the PCR judge, the facts presented fail to establish excusable neglect or the existence of an injustice which would permit the relaxation of the five-year time bar. Defendant has not "articulate[d] facts that demonstrate a serious question about his . . . guilt" in light of his custodial statement to police. Mitchell, supra, 126 N.J. at 580. Nor has he demonstrated, by a preponderance of the evidence, he would suffer an injustice should his PCR petition be denied. Id. at 579.

Although defendant's PCR petition is barred as a matter of procedure, we nonetheless consider the merits of his substantive arguments for completeness.

New Jersey has adopted the two-prong test handed down by the United States Supreme Court in the companion cases of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, and United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland's two-pronged test for PCR review). To establish a prima facie case of ineffective assistance of counsel, a defendant must prove

First, . . . that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

[Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]

Under the first prong, a defendant must demonstrate "counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Thus, "th[e] test requires [a] defendant to identify specific acts or omissions that are outside the wide range of reasonable professional assistance . . . ." State v. Jack, 144 N.J. 240, 249 (1996) (citation and internal quotation marks omitted). "Reasonable competence does not require the best of attorneys, but certainly not one so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

To meet the second prong, "[a] defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid.

In the context of a PCR petition challenging a guilty plea, the first Strickland prong is satisfied when a defendant establishes a reasonable probability he or she would not have pled guilty but for counsel's errors. State v. Gaitan, 209 N.J. 339, 351 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). The second prong is met when a defendant establishes a reasonable probability he or she would have insisted on going to trial. Ibid.

In our review, we defer to the motion judge's findings so long as they are "supported by sufficient credible evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013). See also State v. Elders, 192 N.J. 224, 244 (2007) ("A trial court's findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction." (citation and internal quotation marks omitted)). Legal conclusions which flow from those facts, however, are reviewed de novo. Nash, supra, 212 N.J. at 540-41.

Defendant argues he was denied effective assistance of counsel because he was not made aware of the relationship between his attorney and Feliciano's proffer counsel. Defendant fails to demonstrate, however, how this alleged conflict prejudiced him. As the PCR judge noted, Feliciano's "statement [was] of very little use to the State" because he "never implicate[d defendant] as being the shooter based upon any type of observation." Feliciano merely suggested another bystander told him defendant shot the victim, but Feliciano could not state the potential witness's name. Importantly, defendant's own custodial statement supported his guilt. Defendant placed himself at the scene and described the events which led up to the shooting, considerably eliminating the presumptive benefit of Feliciano's statement.

Assuming for the sake of argument, defendant's counsel failed to disclose his partner's representation of Feliciano and that this omission qualified as a conflict, defendant does not allege facts showing but for counsel's conflict "the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Defendant presents no evidence he would have rejected the plea in light of counsel's alleged omission. See Gaitan, supra, 209 N.J. at 351 (holding plea counsel is ineffective if "the defendant demonstrates that he would not have pled guilty if he had been provided with accurate information"), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). The second prong is met only when a defendant establishes a reasonable probability he or she would have insisted on going to trial. Ibid.

We also find unfounded defendant's claim of ineffective assistance for counsel's alleged failure to move for the suppression of defendant's own custodial statement. We conclude, as did the PCR judge, counsel's decision to take the plea offer was strategic because the custodial statement did not present facts of "an obvious Miranda problem." It behooved defendant to pursue the negotiated plea in lieu of the Miranda hearing. Had the challenge been unsuccessful, the State would have likely pursued a murder conviction, rather than negotiated a plea for the lesser manslaughter charge.

Finally, we find unsupported defendant's claim counsel was ineffective for failing to present mitigating evidence during sentencing. Specifically, defendant argues counsel should have presented factor five, the victim induced or facilitated the crime's commission. N.J.S.A. 2C:44-1(b)(5). Defendant provides nothing by way of certification or affidavit alleging facts to support this factor's application. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). "[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." Ibid.

Affirmed.

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

2 We recognize defendant previously filed two pro se motions seeking PCR, but withdrew them on March 20, 2009. For purposes of this appeal, we consider this defendant's first petition. We note, were this treated as defendant's second petition, it would nonetheless be time-barred, as it was filed approximately twenty-one months from the dismissal of his prior proceeding. See R. 3:22-12(a)(2).