STATE OF NEW JERSEY v. AUGUSTO PALOMINO

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NOT FOR PUBLICATION WITHOUT THE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.

AUGUSTO PALOMINO,

Defendant-Appellant.

___________________________

December 16, 2013

Submitted December 4, 2013 Decided

Before Judges Fuentes, Simonelli and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-05-0699.

Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Augusto Palomino appeals from the January 13, 2012 Law Division order, which denied his petition for post-conviction relief (PCR). We affirm.

A jury found defendant guilty of two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; second-degree sexual assault, N.J.S.A. 2C:14-2b; and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1). The charges stemmed from defendant's sexual assault of a twelve-year-old girl in the presence of an eight-year-old girl. On March 12, 2004, Judge Garry S. Rothstadt sentenced defendant to an aggregate sixteen-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. A judgment of conviction (JOC) was entered on March 12, 2004. The JOC bears the judge's signature, the signature of the court clerk who prepared it, and a "FILED" stamp dated April 2, 2004. Defendant did not appeal.

In 2006, defendant filed two pro se motions, one with this court and the other with the Law Division, for leave to file an appeal out of time, along with a supporting, notarized certification, and notice of appeal, all written in English. Judge Rothstadt denied the motion. We granted leave to appeal, but later dismissed for lack of prosecution.

On April 29, 2010, defendant's assigned counsel filed a PCR petition, seeking relief from the March 12, 2004 JOC based on ineffective assistance of trial counsel. Counsel argued the court should relax the time bar of Rule 3:22-13(a)(1) because defendant's inability to speak English constituted excusable neglect. Defendant filed a sixty-one page pro se supplemental brief and an eleven-page reply brief, both written in English, arguing his "shockingly limited" intellectual functioning also constituted excusable neglect.

In a January 13, 2012 written opinion, Judge Rothstadt denied the petition. The judge found the petition was untimely filed as per Rule 3:22-12(a)(1) and defendant failed to show excusable neglect. The judge determined that defendant's pro se filings, written in English, contradicted his claimed inability to understand English, and a February 2011 psychological evaluation showed he had no cognitive disability.1 The judge also addressed defendant's ineffective assistance of counsel claims and concluded they had no merit.

Defendant argues for the first time on appeal that the PCR petition was timely filed because the JOC was entered on October 6, 2006. He submitted a copy of a purported JOC bearing that date; however, it was not signed by the court clerk, not stamped "Filed," and bore a judge's signature that appears different from Judge Rothstadt's signatures on the March 12, 2004 JOC and on prior orders the judge entered in this matter.

We are satisfied the March 12, 2004 JOC is the correct JOC, and conclude that Judge Rothstadt properly denied the PCR petition as untimely. A first PCR petition must be filed within five years of entry of the JOC unless there is a showing of excusable neglect and "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." R. 3:22-13(a)(1). Defendant filed his PCR petition beyond five years of entry of the March 12, 2004 JOC, and failed to show excusable neglect or a reasonable probability his factual assertions were true. We affirm substantially for the reasons expressed in Judge Rothstadt's written opinion.

1 The judge noted the evaluation revealed defendant graduated from a college in Peru with a degree in business administration, and was found to be of average intelligence with normal speech and language processes.