STATE OF NEW JERSEY v. DOMINGO PAULINO June 13, 2014

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-00802-12T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DOMINGO PAULINO,

Defendant-Appellant.

________________________________________________________________

June 13, 2014

Submitted June 3, 2014 Decided

Before Judges Fisher and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 02-10-1344 and Accusation No. 03-04-1401.

Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, on the brief).

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Domingo Paulino appeals from the June 18, 2012 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm substantially for the reasons set forth in Judge Ronald E. Hoffman's oral decision of June 8, 2012.

Defendant, along with three co-defendants, was indicted for numerous serious drug distribution charges on various dates in March and April 2002. He was charged with three counts of second-degree distribution of more than one-half ounce of cocaine, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (counts three, four and five); first-degree distribution of more than five ounces of cocaine, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(1) and N.J.S.A. 2C:35-5(c) (count six); three counts of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (counts seven, nine and eleven); second-degree possession with intent to distribute more than one-half ounce of cocaine, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (count eight); and first-degree possession with intent to distribute more than five ounces of cocaine, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1) (count ten). After he was released on bail on these charges and while he was awaiting trial, defendant was arrested for second-degree conspiracy to distribute drugs in March 2003. Two weeks later, on the first scheduled day of trial on the indictment, having passed the plea cut-off date1 for the indictment, defendant pled guilty to all of the counts in the indictment relating to him. He also pled guilty to an accusation charging a third-degree drug conspiracy, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(5), with the promise of a sentence concurrent to the sentence on the indictment. The judge explained to defendant that he could receive up to ninety-five years in prison if convicted at trial.

Defendant was sentenced on June 6, 2003, to an aggregate term of thirty-five years in prison with a parole ineligibility term of fifteen years. Defendant appealed his sentence only, and we remanded for a statement of reasons for the imposition of consecutive sentences for some of the charges in the indictment. State v. Paulino, A-6546-02, sentence remanded by order, Jan. 7, 2004. The sentencing judge then gave his reasons based on information in the presentence report. Defendant filed a second sentencing appeal that was dismissed for lack of prosecution.

Defendant filed a petition for PCR on August 4, 2011, more than eight years after his original judgment of conviction. On appeal of the denial of his PCR petition, defendant raises the following issues:

POINT I: THE PCR COURT ERRED IN DENYING PAULINO AN EVIDENTIARY HEARING EVEN THOUGH PAULINO DEMONSTRATED THAT TRIAL COUNSEL'S REPRESENTATION WAS INEFFECTIVE.

POINT II: THE PCR COURT ERRED IN DENYING PAULINO'S PETITION FOR POST-CONVICTION RELIEF EVEN THOUGH PAULINO EFFECTIVELY DEMONSTRATED THE ILLEGALITY OF HIS SENTENCE.

POINT III: PAULINO INCORPORATES BY REFERENCE THE ARGUMENTS CONTAINED IN HIS INITIAL VERIFIED PETITION AND BRIEF.

To prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, l 04 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); State v. Fritz, l 05 N.J. 42, 58 (l987).

To set aside a guilty plea based on ineffective assistance of counsel, defendant must demonstrate under the first prong of Stricklandthat "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases.'" State v. DiFrisco, 137 N.J.434, 457 (1994) (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Under the second prong of Strickland, defendant must establish "'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" Ibid. (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)).

Defendant must present prima facie evidence of ineffective assistance of counsel to be entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462-63 (1992).

Our review of the record in this matter satisfies us that defendant's PCR petition, filed more than three years after the deadline established by Rule3:22-12, was untimely, and that defendant failed to offer exceptional circumstances that would justify relief from the Rule's bar pursuant to Rule1:1-2. State v. Mitchell, 126 N.J.565, 579-80 (1992); see alsoState v. Afanador, 151 N.J. 41, 52 (1997) (discussing the standard to relax the Rule3:22-12 time bar). We concur with Judge Hoffman's ruling that ignorance of the law and of the time limits applicable to the filing of PCR petitions provide insufficient grounds to justify our recognition of defendant's untimely petition. SeeState v. Cummings, 321 N.J. Super.154, 166 (App. Div.) (finding that a petitioner's claim of illiteracy is insufficient to demonstrate excusable neglect to relax the time limitation to file a PCR), certif. denied, 162 N.J. 199 (1999).

Defendant argues that his attorney gave him poor advice to plead guilty because the State did not have sufficient proof to convict him of the charge underlying the accusation. He argues also that his attorney should have pursued his second excessive sentence appeal after the sentencing judge gave his reasons for imposing certain sentences consecutive to each other. As stated by Judge Hoffman, neither these claims nor the others raised by defendant resulted in an injustice sufficient to relax the time limits.

In reaching our conclusion, we have considered "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." Afanador, supra, 151 N.J. at 52.

Affirmed.

1 See R. 3:9-3(g); State v. Brimage, 271 N.J. Super. 369, 378-79 (1994).