STATE OF NEW JERSEY v. LUIS CANDELARIA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0920-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIS CANDELARIA,

Defendant-Appellant.

_____________________________________

November 17, 2011

Submitted October 4, 2011 - Decided

Before Judges Simonelli and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 94-02-0143.

Luis Candelaria, appellant pro se.

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

PER CURIAM

Defendant Luis Candelaria appeals from an August 9, 2010 order denying his second petition for post conviction relief (PCR). Having reviewed the record in light of the applicable law, we affirm.

The record reveals that in 1996 defendant was convicted of twenty charges stemming from a series of armed robberies and burglaries in Trenton, including twelve counts of armed robbery, N.J.S.A. 2C:15-1; six counts of burglary while armed, N.J.S.A. 2C:18-2b; one count of burglary, N.J.S.A. 2C:18-2a; and one count of possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a. The trial judge sentenced defendant to a term of life imprisonment plus 105 years with sixty years of parole ineligibility. Defendant appealed and raised numerous contentions, including the voluntariness of his waiver of his Miranda1 rights and subsequent confession, the excessiveness of the sentence, and ineffective assistance of counsel during the trial. We affirmed the convictions but modified the sentence to life imprisonment plus forty years, with thirty-nine years parole ineligibility. State v. Candelaria, 311 N.J. Super. 437 (App. Div.). certif. denied, 155 N.J. 587 (1998).

Subsequently, defendant filed a petition for PCR, which was heard on August 14, 2001, and again raised numerous issues, including allegations of an involuntary confession, excessive sentence and ineffective assistance of counsel. After finding that the petition was procedurally barred because all of defendant's arguments were or could have been raised on direct appeal, the judge considered the substantive merit of the claims and denied the PCR petition. We affirmed in an unreported decision, State v. Candelaria, No. A-1200-01 (App. Div. March 6, 2003), and the New Jersey Supreme Court denied defendant's petition for certification. 177 N.J. 223 (2003). In addition, defendant filed a petition for habeus corpus in federal court, which was denied as untimely. Candelaria v. Hendricks, No. 04 Civ. 2969 (D.N.J. Dec. 13, 2005).

Thereafter, on July 23, 2010, defendant filed his second PCR petition, again raising the involuntary confession, ineffective assistance and excessive sentence issues. In a written opinion, dated August 3, 2010, Judge Council denied the PCR petition because it was procedurally barred. Initially, he found the petition was barred by Rule 3:22-12(a)(2), which requires a second PCR petition to be filed within a year of the previous PCR denial, as the time between the first and present petitions was almost nine years, and defendant did not set forth any facts excusing the delay.

Additionally, Judge Council held that Rule 3:22-4, which bars raising any grounds for post-conviction relief that reasonably could have been raised in a prior proceeding, prohibited consideration of the petition since defendant presented no reason why the present claims could not have been raised in the first petition. Furthermore, the judge determined that defendant had, in fact, raised all the present claims in the first petition, and thus, they were also precluded by Rule 3:22-5, which deems conclusive a prior adjudication on the merits, whether in a direct appeal or in any PCR proceeding, if identical or substantially equivalent to the current issues. Judge Council specified that all the current issues were substantially equivalent to issues defendant raised in the first PCR petition. This appeal followed.

On appeal, defendant raises the following points for our consideration:

POINT I: THE APPELLANT SHALL PRESENT THE ARGUMENT ON THE PROCEDURAL BAR THAT WAS PRESENTED AND DENIED BY THE LOWER COURT ON POST CONVICTION RELIEF, WHICH IS THE ESSENCE OF THE PRESENT APPEAL.

POINT II: IN THE CASE BEFORE THIS HONORABLE APPELLATE COURT IT IS RESPECTFULLY SUBMITTED THAT APPELLANT, LUIS CANDELARIA, WAS SUBJECTED TO AN ILLEGAL SENTENCE IN VIOLATION OF APPELLANT'S RIGHT TO A FAIR AND IMPARTIAL TRIAL AND PERMISSIBLE SENTENCE, WHICH IS GUARANTEED BY THE NEW JERSEY AND UNITED STATES CONSTITUTION[S], INCORPORATING DUE PROCESS OF LAW, FUNDAMENTAL FAIRNESS, EQUAL PROTECTION AND VIOLATION OF CRUEL AND UNUSUAL PUNISHMENT, IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS REQUIRING REVERSAL OF DEFENDANT'S CONVICTION AND SENTENCE BASED ON FUNDAMENTAL INJUSTICE AND IMMEDIATE RELEASE OR IN THE ALTERNATIVE REDUCTION OF THE SENTENCE TO A TERM OF TIME-SERVED WHEREBY DEFENDANT WOULD BE IMMEDIATELY RELEASED FROM HIS ILLEGAL CONFINEMENT.

POINT III: THE APPELLANT, LUIS CANDELARIA, WAS SUBJECTED TO PHYSICAL ABUSE AND COERCION WHEN HE UNWILLINGLY GAVE A STATEMENT/CONFESSION TO CRIMES HE DID NOT COMMIT. HIS STATEMENT/CONFESSION SHOULD HAVE BEEN SUPPRESSED AND EXCLUDED AS A MATTER OF LAW IN COMPLIANCE WITH THE DOCTRINE OF MIRANDA V. ARIZONA.

POINT IV: DEFENSE COUNSEL WAS INEFFECTIVE FOR HIS FAILURE TO INVESTIGATE AND REVIEW DISCOVERY; TO CALL WITNESSES FOR THE DEFENSE; TO OBJECT TO THE ILLEGAL SENTENCE AND TO REPRESENT THE DEFENDANT IN A PROFESSIONAL MANNER WHICH DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, REQUIRING THE REVERSAL OF DEFENDANT'S CONVICTION AND SENTENCE AND AN ORDER RELEASING DEFENDANT FROM THE CONFINES OF THE EAST [JERSEY] STATE PRISON AS PROMUGATED ON THE 5TH, 6TH AND 14TH AMENDMENTS TO THE NEW JERSEY AND FEDERAL CONSTITUTION OF THE UNITED STATES AS REQUIRED BY DUE PROCESS OF LAW.

Post conviction relief constitutes "New Jersey's analogue to the federal writ of habeus corpus." State v. Preciose, 129 N.J. 451, 459 (1992). A person is generally entitled to an evidentiary hearing if he or she makes a prima facie showing of entitlement to such relief by demonstrating "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (citing Preciose, supra, 129 N.J. at 463), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Without such a showing, no evidentiary hearing is required. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

To protect against courts addressing endless issues in a piecemeal fashion, certain PCR procedural rules exist. For example, Rule 3:22-12(a)(1) imposes a five-year limitation on filing a petition after the judgment sought to be attacked, and Rule 3:22-12(a)(2) limits the time for filing subsequent petitions. Although the time limitations are not absolute and may be waived to prevent a fundamental injustice, the rule must be viewed in light of its dual purpose to ensure that the passage of time does not prejudice the State's retrial of a defendant and to respect the need for achieving finality. State v. DiFresco, 187 N.J. 156, 166-67 (2006). Moreover, a PCR petition is not a substitute for an appeal of a conviction, Rule 3:22-3, and any available ground for relief not asserted in a prior proceeding is barred if it could have been raised earlier, Rule 3:22-4, or was asserted earlier, Rule 3:22-5.

We have carefully considered defendant's arguments and the applicable law, and we conclude that the arguments advanced by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Council in his written opinion. We are satisfied that defendant's petition, filed nine years after the first PCR petition, is clearly time-barred. R. 3:22-12. We also agree that the present claims are barred by Rule 3:22-5 as they are substantially equivalent to the claims previously raised both on direct appeal and in defendant's previous PCR petition.

A

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