STATE OF NEW JERSEY v. LUIS F. DASILVA

NOT FOR PUBLICATION WITHOUT THE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.

LUIS F. DASILVA,

Defendant-Appellant.

_____________________________

October 28, 2014

Submitted September 3, 2014 Decided

Before Judges Ostrer and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-06-5524.

Luis F. DaSilva, appellant pro se.

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Luis F. DaSilva appeals from the trial court's order denying, without an evidentiary hearing, his March 10, 2013 motion "for leave to file a successive petition" for post-conviction relief (PCR), and to "reactivat[e]" a prior motion for discovery that was denied without prejudice in 2011. We reverse.

We shall not review in detail the facts and procedural history addressed at length in our opinions affirming defendant's conviction for first-degree murder, armed robbery, and related crimes, State v. DaSilva, No. A-2039-06 (App. Div. July 8, 2009) (DaSilva I), certif. denied, 201 N.J. 145 (2009), and affirming the denial of defendant's first petition for PCR, State v. DaSilva, No. A-3334-10 (App. Div. July 25, 2012) (DaSilva II), certif. denied, 213 N.J. 396 (2013). Suffice it to say that defendant was convicted of the November 2002 robbery and murder of a Newark taxi cab driver. In an August 4, 2004 judgment of conviction, he was sentenced to an aggregate forty-five-year sentence, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

The trial court dismissed without prejudice defendant's first PCR petition, filed in 2009, because his direct appeal was still pending. Within ninety days of the Supreme Court's denial of certification, defendant timely refiled his first petition in January 2010, in accordance with Rule 3:22-12. See DaSilva II, supra, slip op. at 5, 17 n.4. The trial court thereafter denied defendant's first petition on the merits in October 2010. Among other things, the court found that defendant failed to provide evidential support for his claim that his trial attorney was ineffective by failing to investigate defendant's asserted alibi.

While defendant's appeal from that 2010 PCR denial was pending, defendant filed a second petition on October 3, 2011. The court sua sponte dismissed that petition on October 13, 2011 without prejudice citing Rule 3:22-3, because appellate review of the first petition was pending. The court also denied, pursuant to Rule 2:9-1, defendant's May 2011 motion for discovery.

In affirming the denial of defendant's first petition, we agreed that defendant had failed to provide sufficient factual support for his claims, which were essentially "bald assertions." DaSilva II, supra, slip op. at 17-18 (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)). We also discussed, but declined to decide, claims defendant raised for the first time before us in a pro se supplemental filing, that his PCR counsel was ineffective and failed to fulfill his obligations under Rule 3:22-6(d). Defendant asserted his PCR counsel did not consult with him and failed to independently investigate his PCR claims, including his claim that his trial counsel did not explore his asserted alibi. We noted that the remedy for a violation of Rule 3:22-6(d) is a new PCR proceeding, which is "not predicated upon a finding of ineffective assistance of counsel under the relevant constitutional standard." DaSilva II, supra, slip op. at 19 (quoting State v. Hicks, 411 N.J. Super. 370, 376 (App. Div. 2010)).

However, we concluded the record before us provided an insufficient factual basis to find a violation of Rule 3:22-6(d). DaSilva II, supra, slip op. at 18-21. In particular, we noted, "Defendant has not provided a certification describing the nature of his interactions with PCR counsel, whether counsel met with him to discuss the case, and the information and suggestions defendant provided to him." Id., slip op. at 20. We also highlighted that the record lacked any detailed information to support defendant's alibi claims, "even describing generally, the alibi witnesses" allegedly ignored by PCR counsel. Id., slip op. at 20-21.

However, we did identify grounds for concern about PCR counsel's performance. In particular, counsel had included in his brief irrelevant material that apparently was carelessly cut and pasted from a brief in an unrelated case. Id., slip op. at 7. We concluded that any claim that PCR counsel failed to discharge his responsibilities under Rule 3:22-6(d) should first be raised before the trial court. Id., slip op. at 21.

On March 10, 2013 less than one month after the Supreme Court's February 11, 2013 denial of certification defendant filed the pro se motion at issue here. The notice of motion stated that defendant sought "leave to file a successive petition for PCR" and "reactivation of the PCR motions that were dismissed without prejudice on May 25, 2011 pursuant to R. 2:9-1(a)."

In his supporting certification, in apparent response to our decision in DaSilva II, defendant asserted, "There were several claims I had insisted PCR counsel research, investigate, and advance on my behalf during my initial application for PCR . . . . Said issues were never researched, investigated, or advanced." Defendant also alleged generally and without specificity, "newly discovered evidence has recently surfaced." Defendant asserted that he did not delay in filing his motion.

Then, defendant offered statements that were, on their face, ambiguous

6. Accordingly, the Rules of this Court permit me to timely advance this successive petition under claims of ineffective assistance of PCR counsel, in order to have the matter opened under the Court Rule amendments of Chief Justice Rabner in 2010.

7. Wherefore, I ask that the court grant me leave to proceed with the attached proposed application for PCR.

8. Additionally, I ask that this Court reactive my PCR motions that were dismissed without prejudice on May 25, 2011, pursuant to R. 2:9-1(a) while the recently resolved appeal was pending.

Although defendant referred to an "attached proposed application for PCR," none apparently was included in his papers. Defendant also did not provide a copy of the 2011 discovery motion that the court denied pursuant to Rule 2:9-1.

The trial court deemed defendant's motion to be not merely a request for permission to file a second petition, but the petition itself. Viewed in that light, the court found it completely wanting in factual support. Defendant provided nothing but "bald assertions" in support of his petition. The court held that "the bulk of petitioner's claims have either been previously raised and expressly rejected by this Court and on subsequent appeals or represent merely conclusory assertions that do not merit the assignment of counsel."

Defendant appeals and presents the following point for our consideration

BECAUSE DEFENDANT INSISTED FOR THE FIRST TIME THAT PCR COUNSEL HAD NOT RAISED MANY CLAIMS DEFENDANT HAD INSISTED BE ADVANCED, THE LOWER COURT ERRED BY FINDING THAT THE CLAIMS HAD BEEN RULED UPON, AND LACK MERIT.

When the PCR court has not held "an evidentiary hearing, we may exercise de novo review over the factual inferences the [PCR] court has drawn from the documentary record." State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014). We also exercise plenary review of purely legal issues. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

A defendant is entitled to counsel, and therefore, effective assistance of counsel, when raising ineffective assistance of trial counsel for the first time in a PCR petition. State v. Quixal, 431 N.J. Super. 502, 513 (App. Div. 2013). However, we discern no error in the trial court's conclusion that defendant's pro se submission, if viewed as a petition for PCR, lacked essential factual support.

A defendant is not entitled to an evidentiary hearing on a claim of ineffective assistance of counsel unless he presents legally competent evidence to support his claim, O'Donnell, supra, 435 N.J. Super. at 370, and generalized, bald assertions do not suffice. Cummings, supra, 321 N.J. Super. at 170; see also State v. Porter, 216 N.J. 343, 355 (2013) (referring to statements that are "too vague, conclusory, or speculative" to warrant a hearing) (internal quotation marks and citation omitted). In particular, "'when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification.'" Ibid. (quoting Cummings, supra, 321 N.J. Super. at 170). The same principle applies to a claim of ineffective assistance by PCR counsel.

However, we part company with the trial court's determination to treat defendant's motion as his petition. We recognize that the submission was ambiguous. Defendant asked the court to grant him "leave to proceed with the attached proposed application for PCR," yet he attached none. An indulgent reading of defendant's statement was that the notice of motion and certification were not intended to constitute his petition. Cf. Cummings, supra, 321 N.J. Super. at 170 (stating that a PCR petition shall be read "indulgently and . . . in the light most favorable" to the petitioner). We therefore conclude the petition was intended to be a separate document.

Defendant was entitled to file a second petition, asserting ineffective assistance of PCR counsel, within one year of the "date of the denial of the first or subsequent application for post-conviction relief where ineffective assistance of counsel that represented the defendant on the first or subsequent application for post-conviction relief is being alleged." R. 3:22-12(a)(2)(C); see also R. 3:22-4(b) (stating that a second petition is barred unless, among other things, "the petition alleges a prima facie case of ineffective assistance of counsel that represented the defendant on the first or subsequent application for post-conviction relief"). The one-year period began on October 20, 2010, when the first PCR was denied. Defendant timely filed his second PCR petition on October 3, 2011.

The trial court erred in dismissing that petition on the grounds that defendant's appeal from the first petition denial was pending. The Rules provide for dismissal without prejudice of a PCR petition while "a direct appeal . . . is pending," Rule 3:22-6A(1), and allows a petitioner to refile within ninety days of appellate finality, even if more than five years after entry of the judgment of conviction. R. 3:22-12(a)(3). However, an appeal from the denial of a first PCR petition is not a "direct appeal" under the Rule. Moreover, the Rule does not provide a ninety-day window for filing a second petition after finality in the appellate process involving the first petition. Rather, the one-year deadline is non-relaxable. R. 3:22-12(c).

The record on appeal does not include defendant's October 2011 petition, to enable us to determine whether it included an allegation of ineffective assistance of PCR counsel. Nonetheless, in light of the PCR court's mistaken dismissal, defendant shall be permitted to file a second petition, as if filed in October 2011, provided that defendant files it within ninety days of entry of our decision. The PCR court shall then apply Rule 3:22-12(a)(2) and -4(b), to determine whether the petition would be deemed timely filed if it had been filed in October 2011.

We note that defendant has also alleged, albeit in vague and conclusory terms, that new evidence has come to light to support PCR. He sought permission to file a second petition based on that allegation. A second petition may be filed within one year of "the date on which the factual predicate for the relief sought was discovered, if that factual predicate could not have been discovered earlier through the exercise of reasonable diligence." R. 3:22-12(a)(2)(B); see also R. 3:22-4(b)(2)(B). The record does not disclose the nature of this information, when it was discovered, or when it could have been discovered through the exercise of reasonable diligence. Defendant may file a second petition alleging this new evidence within ninety days of our decision. The court shall then apply Rule 3:22-12(a)(2)(B) and -4(b), to determine whether the petition would be deemed timely filed if it had been filed by March 20, 2013, the date of filing of his motion.

Finally, we note that, notwithstanding our discussion in DaSilva II, defendant did not seek relief based on a violation of Rule 3:22-6(d). As we have noted, a violation of the Rule is distinct from ineffective assistance of counsel. However, we shall not address an issue not raised below. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Reverse and remanded. We do not retain jurisdiction.