STATE OF NEW JERSEY v. ARIEL BERMUDEZ

NOT FOR PUBLICATION WITHOUT THE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.

ARIEL BERMUDEZ,

Defendant-Appellant.

___________________________________

February 28, 2014

Submitted February 10, 2014 Decided

Before Judges Harris and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 96-08-00801.

Joseph E. Krakora, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the brief).

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (William Kyle Meighan, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Ariel Bermudez appeals from the Law Division's April 5, 2012 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

I.

On December 20, 1996, pursuant to a guilty plea and consent order waiving jurisdiction in the Family Part, then eighteen-year-old Bermudez was sentenced to an aggregate term of fourteen years imprisonment, subject to a seven-year parole disqualifier, for two counts of first-degree robbery, N.J.S.A. 2C:15-1, which were committed on October 11, 1995, when Bermudez was seventeen years old.

We affirmed the judgment of conviction and sentence on an Excessive Sentence Oral Argument calendar pursuant to Rule 2:9-11. State v. Bermudez (Bermudez I), No. A-3108-96 (App. Div. June 9, 1997). While Bermudez's sentencing appeal was pending before us, he filed an unsuccessful motion in the Law Division for reconsideration of the sentence pursuant to Rule 3:21-10. Approximately one year after that, in 1998, Bermudez filed a second such reconsideration motion, which also was denied.

Nothing else happened in Bermudez's case for the next thirteen years. Then, on May 16, 2011, Bermudez filed the present pro se petition for PCR. Bermudez alleged that he suffered the ineffective assistance of counsel in 1996 insofar as "counsel was ineffective during juvenile proceedings in failing to take any steps to assess [the] prospect of petitioner['s] likelihood of rehabilitation, and was ineffective in telling petitioner to forgo a waiver hearing and be prosecuted as an adult." After PCR counsel was assigned, Bermudez submitted a supplemental certification greatly expanding the alleged misdeeds of counsel. For example, he now claimed that defense counsel "did not visit [him] often," "all [defense counsel] did was try to persuade [him] to plead guilty despite [his] objections to this," "[he] was being pressured to protect [his] attorney from prosecution [for smuggling cigarettes into jail] by waiving [him]self from family court and pleading guilty," and "due to [his] drug addiction, . . . had [he] received the needed treatment [he] could have rehabilitated [him]self . . . in an inpatient program which . . . was available through the family court."

Bermudez further leveled claims against his assigned attorneys who represented him in his two unsuccessful reconsideration motions, claiming, "[he] told [his] assigned counsel on both motions [his] situation regarding [his] prior counsel. Neither counsel took any action in regards to this information nor did they give [him] any advice as to what steps [he] could take to remedy that situation."

Finally, Bermudez asserted,

After my motions were denied, it was my understanding that I did not have the right to a PCR since my motions were considered a PCR and I only have one opportunity to file a PCR. Because of this I did not file a petition for post conviction relief.

Judge James M. Blaney considered Bermudez's petition at a hearing on April 4, 2012. Although not an evidentiary hearing, Bermudez was sworn in, and was permitted to participate and speak extensively during the proceeding, supplementing the comments of his PCR counsel. On April 5, 2012, Judge Blaney issued a fifteen-page written opinion denying all relief.

In his opinion, Judge Blaney found that Bermudez's petition was time-barred by Rule 3:22-12's five-year limitation because "it was filed more than fourteen years after the sentencing date, which equates to nearly nine years after his case was time-barred from pursuing a PCR." The judge further determined that Bermudez failed to demonstrate excusable neglect for his tardy filing, noting that even based upon Bermudez's statement in court -- that he learned about PCR petitions for the first time "when [he] started reading the law . . . [w]ithin the last seven years" -- he was still woefully out of time.1

Judge Blaney also analyzed the substantive aspects of Bermudez's ineffective assistance of counsel claims. After thoroughly canvassing the events of 1995 and 1996, the judge found that not only had Bermudez presented mere "bald assertions" that his attorney had negligently advised him, but he also had equally failed to demonstrate that he was amenable to rehabilitation, and the likelihood of the matter not being waived to the Law Division was nil. Additionally, the judge dismissed as "irrelevant" Bermudez's unsubstantiated allegations that his defense attorney committed misconduct in providing cigarettes to Bermudez while he was housed in the jail.

On April 5, 2012, the order denying PCR was issued. This appeal followed.

II.

On appeal, Bermudez presents the following issues for our consideration:

POINT I: THE PCR COURT ERRED IN DISMISSING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS TIME BARRED BECAUSE THERE WAS EXCUSABLE NEGLECT FOR THE FAILURE TO FILE WITHIN THE FIVE-YEAR TIME LIMIT, R. 3:22-12, AND EXCEPTIONAL CIRCUMSTANCES WARRANT RELAXATION OF THE TIME BAR, R. 1:1-2, WHICH IS NECESSARY TO AVOID FUNDAMENTAL INJUSTICE.

POINT II: BECAUSE THE TRIAL ATTORNEY DID NOT PROPERLY ADVISE THE DEFENDANT ABOUT THE CONSEQUENCES OF A VOLUNTARY WAIVER FROM THE FAMILY PART TO THE LAW DIVISION, CRIMINAL PART, THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

POINT III: BECAUSE THIS CASE INVOLVES FACTS THAT LIE OUTSIDE OF THE RECORD, THE PCR COURT SHOULD HAVE GRANTED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE FAILURE TO DO SO HAS RESULTED IN FUNDAMENTAL INJUSTICE, REQUIRING REMAND.

We have considered these arguments in light of the record, and conclude that they are entirely unpersuasive. We affirm substantially for the reasons expressed by Judge Blaney in his April 5, 2012 written opinion. We add only the following.

Generally, a defendant's first PCR petition must be filed within five years of the date the judgment of conviction is entered, "unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that 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- 12(a)(1). Bermudez's explanations do not surmount the "rigorous" five-year time limit for filing PCR applications. State v. Murray, 162 N.J. 240, 249 (2000); see also State v. DiFrisco, 187 N.J. 156, 165-67 (2006) (holding that the five-year time period is generally neither stayed nor tolled by an appellate or other proceeding); State v. Merola, 365 N.J. Super. 203, 218 (Law Div. 2002) ("Ignorance of the law and rules of court does not qualify as excusable neglect."), aff'd, 365 N.J. Super. 82 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

"The concept of excusable neglect encompasses more than simply providing a plausible explanation for a failure to file a timely PCR petition." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). More exactly, excusable neglect can be established only "'under exceptional circumstances' because '[a]s time passes, justice becomes more elusive and the necessity for preserving finality and certainty of judgments increases.'" State v. Goodwin, 173 N.J. 583, 594 (2002) (quoting State v. Afanador, 151 N.J. 41, 52 (1997)). To be entitled to a relaxation of the Rule based upon a showing of excusable neglect, defendant is obliged to "allege[] facts

demonstrating that the delay was due to the defendant's excusable neglect[]" and, "[i]f the petitioner does not allege sufficient facts, the [Rule] bars the claim." State v. Mitchell, 126 N.J.565, 576 (1992). That is what happened here.

In assessing Bermudez's PCR application, we balance the competing interests of the State in achieving "finality to pleas," State v. Smullen, 118 N.J. 408, 416 (l990), and the potential prejudice to the State and detriment to the public interest occasioned by the almost sixteen-year2 lag between the events alleged in the indictment and the filing of the PCR petition, with defendant's entitlement "to fairness and protection of basic rights." State v. Taylor, 80 N.J. 353, 365 (l979). We are satisfied that Bermudez must establish that he is entitled to relaxation of Rule 3:22-12's time limit and must also allege facts sufficient to establish a prima facie case for relief under the "familiar two-prong test outlined in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by [the New Jersey Supreme] Court in State v. Fritz, 105 N.J. 42, 58 (1987)." State v. Pierre-Louis, ___ N.J. ___, ___ (2014) (slip op. at 5). A defendant "must show both (1) that counsel s performance was deficient, and (2) that the deficient performance prejudiced the outcome." Ibid. Bermudez has failed to carry his burden.

Affirmed.

1 Bermudez stated that he was paroled on the present charges in 2004. However, he was arrested on new charges in January 2005; pled guilty to first-degree robbery, third-degree conspiracy to commit theft, and third-degree theft in two separate indictments; and was sentenced to a mandatory extended term for a second Graves Act offense pursuant to N.J.S.A. 2C:44-3(d). State v. Bermudez (Bermudez II), No. A-0118-07-07 (App. Div. August 2, 2010), certif. denied, State v. Bermudez, 205 N.J. 79 (2011). Bermudez agreed that he was "trying to use this PCR to affect that charge of 2005."

2 The indictment alleged that the first-degree robberies occurred on October 11, 1995. The PCR petition was filed on May 16, 2011.