STATE OF NEW JERSEY v. JAVIEL TORO
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3894-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAVIEL TORO,
Defendant-Appellant.
_______________________________
Submitted October 3, 2017 – Decided November 27, 2017
Before Judges Carroll and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No.
08-10-2524.
Joseph E. Krakora, Public Defender, attorney
for appellant (Adam W. Toraya, Designated
Counsel, on the brief).
Damon G. Tyner, Atlantic County Prosecutor,
attorney for respondent (Brett Yore, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Javiel Toro appeals from a March 31, 2016 order
denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
The following facts are taken from the record. An Atlantic
County Grand Jury indicted defendant on six counts of second-
degree sexual assault of a fifteen-year-old girl in violation of
N.J.S.A. 2C:14-2(c). On January 27, 2009, defendant pled guilty
to count one of the indictment. He appeared with plea counsel and
after providing a factual basis for the plea, engaged in a colloquy
with counsel confirming the knowing and voluntary nature of the
plea. Specifically, defendant confirmed that he had reviewed all
of the discovery provided in the case and understood it. He
answered questions confirming he understood the plea forms and had
initialed and signed them. Defendant answered questions
acknowledging the potential prison sentence that could be imposed
as a result of his conviction. He acknowledged the plea agreement
would subject him to a five-year prison term with no parole
disqualifier.
During the plea hearing, defendant also responded to
questions from the court. Specifically, he acknowledged he would
be subject to an evaluation, pursuant to
N.J.S.A. 2C:47-1, which
required a psychological evaluation to determine whether he was a
compulsive and repetitive sex offender. Defendant testified he
understood the sentence would include a no-contact-with-the-victim
provision, registration under Megan's Law,
N.J.S.A. 2C:7-1 to
-23, and monetary penalties.
2 A-3894-15T4
The court took a brief recess during defendant's plea hearing
because the Megan's Law plea form and the parole supervision form
had not been completed. The judge returned to the bench to ask
whether defendant understood and completed the forms. Defendant
testified he reviewed, understood, and had provided truthful
answers to questions on the forms. He stated that he understood
he would be subject to parole supervision for life.
Defendant further confirmed he was satisfied with the terms
and conditions of his plea, and the performance of his counsel.
He also stated that he understood the rights he was relinquishing
by entering into a plea, the presumption of innocence, the right
to confront and produce witnesses, and the State's burden of proof.
Defendant's sentencing hearing took place on August 14, 2009.
Defendant appeared with new counsel who advised the court he had
reviewed the discovery and understood the possible sentence
exposure to defendant if he proceeded to trial. Counsel also
informed the court defendant wished to withdraw his guilty plea.
Counsel told the court he saw no basis to file a motion to withdraw
the plea. Defendant was sentenced in accordance with the plea
agreement to five-years in prison with no parole disqualifier.
On June 30, 2015, defendant filed a petition for PCR. In his
petition he asserted he received ineffective assistance of counsel
when his first counsel failed to advise him he would be subject
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to parole supervision for life. Defendant also argued his second
counsel was ineffective for failing to file a motion to withdraw
the guilty plea before sentencing, and for subsequently failing
to appeal the sentence.
The PCR court denied defendant's petition on March 31, 2016.
The court found the petition was barred by Rule 3:22-12(a)(1)
because it was filed more than five-years after the judgment of
conviction, and defendant had not presented excusable neglect for
the late filing. Notwithstanding the time bar, the PCR court
addressed the merits of defendant's petition. The court found
defendant had not presented a prima facie case of ineffective
assistance of counsel given the thoroughness of the plea colloquy
and the record made at the sentencing hearing. Consequently, the
PCR court denied an evidentiary hearing.
On appeal, defendant raises the following arguments:
POINT ONE - THE TRIAL COURT ERRED IN DENYING
THE DEFENDANT'S PETITION FOR POST CONVICTION
RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
HEARING TO FULLY ADDRESS HIS CONTENTION THAT
HE FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION AT THE TRIAL LEVEL.
POINT TWO – THE COURT MISAPPLIED ITS
DISCRETION IN APPLYING R. 3:22-12 BECAUSE THE
SIGNIFICANCE OF THE ISSUES RAISED, AND THEIR
IMPACT ON THE INTEGRITY OF THE CRIMINAL
JUSTICE SYSTEM, WARRANTED A RELAXATION OF THE
FIVE-YEAR TIME BAR.
4 A-3894-15T4
I.
Defendant asserts the PCR court should have granted him an
evidentiary hearing to address his claim that he did not understand
he would be on parole supervision for life. We disagree.
Rule 3:22-10(b) provides:
A defendant shall be entitled to an
evidentiary hearing only upon the
establishment of a prima facie case in support
of post-conviction relief, a determination by
the court that there are material issues of
disputed fact that cannot be resolved by
reference to the existing record, and a
determination that an evidentiary hearing is
necessary to resolve the claims for relief.
To establish a prima facie case, defendant
must demonstrate a reasonable likelihood that
his or her claim, viewing the facts alleged
in the light most favorable to the defendant,
will ultimately succeed on the merits.
Furthermore, Rule 3:22-10(e) provides the court shall not grant
an evidentiary hearing if: (1) it "will not aid [in] the court's
analysis of the defendant's entitlement to post-conviction
relief;" (2) "the defendant's allegations are too vague,
conclusory or speculative;" or (3) the defendant is attempting to
use the hearing to explore or investigate other possible
unsubstantiated PCR claims.
The decision of whether to hold an evidentiary hearing on a
PCR petition is committed to the sound discretion of the PCR judge.
State v. Cummings,
321 N.J. Super. 154, 170 (App. Div. 1999). The
5 A-3894-15T4
judge should grant an evidentiary hearing and make a determination
on the merits of a defendant's claim only if the defendant has
presented a prima facie claim of ineffective assistance. State
v. Preciose,
129 N.J. 451, 462 (1992).
In determining whether a prima facie claim has been
established, the facts should be viewed "in the light most
favorable to a defendant." Id. at 462-63. Additionally, "[a]
petitioner must establish the right to such relief by a
preponderance of the credible evidence." Id. at 459. "To sustain
that burden, specific facts must be alleged and articulated" to
"provide the court with an adequate basis on which to rest its
decision." State v. Mitchell,
126 N.J. 565, 579 (1992).
To establish ineffective assistance of counsel, defendant
must satisfy a two-prong test:
First, the defendant must show that counsel's
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
"counsel" guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable. Unless a defendant makes
both showings, it cannot be said that the
conviction or death sentence resulted from a
breakdown in the adversary process that
renders the result unreliable.
6 A-3894-15T4
[Strickland v. Washington,
466 U.S. 668, 687
(1984); State v. Fritz,
105 N.J. 42, 52 (1987)
(quoting Strickland,
466 U.S. at 687).]
Counsel's performance is evaluated with extreme deference,
"requiring 'a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance.'"
Fritz,
105 N.J. at 52 (quoting Strickland,
466 U.S. at 688-89).
"To rebut that strong presumption, a [petitioner] must establish
[] trial counsel's actions did not equate to 'sound trial
strategy.'" State v. Castagna,
187 N.J. 293, 314 (2005) (quoting
Strickland,
466 U.S. at 689). "Mere dissatisfaction with a
'counsel's exercise of judgment' is insufficient to warrant
overturning a conviction." State v. Nash,
212 N.J. 518, 542 (2013)
(quoting State v. Echols,
199 N.J. 344, 358 (2009)).
To demonstrate prejudice, "'actual ineffectiveness' . . .
must [generally] be proved." Fritz,
105 N.J. at 52. Petitioner
must show the existence of "a 'reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.'"
State v. Savage,
120 N.J. 594, 614 (1990) (quoting Strickland,
466 U.S. at 694). Indeed,
[i]t is not enough for [a] defendant to show
that the errors had some conceivable effect
on the outcome of the proceeding. Virtually
7 A-3894-15T4
every act or omission of counsel would meet
that test and not every error that conceivably
could have influenced the outcome undermines
the reliability of the result of the
proceeding.
[Strickland,
466 U.S. at 693 (citation
omitted).]
There is no evidence to support defendant's assertion his
first counsel did not inform him he would be subject to parole
supervision for life or explain the consequences of the lifetime
supervision to defendant. First, as we previously noted, during
the plea colloquy, the trial court stopped the proceeding to note
defendant had not completed the form, which addressed among other
things, parole supervision for life. The court then took a recess
to enable defendant to review and complete the form. Second, the
form completed by defendant asked for a yes or no answer to the
following question:
Do you understand that being sentenced to
parole supervision for life means that upon
release from incarceration or immediately upon
imposition of a suspended sentence you will
be supervised by the Division of Parole for
at least [fifteen] years and will be subject
to provisions and considerations of parole,
including conditions appropriate to protect
the public and foster rehabilitation, such as
but not limited to, counseling, Internet
access or use, and other restrictions which
may include restrictions on where you can
live, work, travel or persons you can contact?
Defendant responded "yes" to this question.
8 A-3894-15T4
Third, the trial court inquired whether defendant had
reviewed the form bearing the lifetime parole supervision
question. The following colloquy ensued:
THE COURT: Let me just clarify that you have
reviewed . . . the four page form known as the
New Jersey Judicial Additional Questions For
Certain Sexual Offenses. Did you review all
of those to your satisfaction with [defense
counsel]?
THE DEFENDANT: Yes.
THE COURT: Understanding all of those, did you
provide truthful answers to all of the
questions on them?
THE DEFENDANT: Yes.
THE COURT: And you initialed and/or signed
these documents?
THE DEFENDANT: Yes.
THE COURT: Is there anything at all which
appeared on these pages or was asked of you
or any term, condition, et cetera, of this
plea agreement that you feel you don't fully
and completely understand?
THE DEFENDANT: No.
Recounting this record, the PCR court found:
Counsel was not ineffective for failing to
advise the defendant of [the] full
consequences of how parole supervision for
life would affect him because the record shows
that he was clearly advised of such.
The record clearly shows defendant was advised
multiple times of the consequences of his plea
[] when the plea was entered.
9 A-3894-15T4
We agree. Although defendant claims he was "blind-sided" by his
first counsel's failure to advise him about the parole supervision
terms and forms, the record does not support that claim. The
record lacks prima facie evidence of ineffective assistance of
counsel at the plea stage.
Defendant also argues that his second counsel was ineffective
at the sentencing because he failed to file a motion to withdraw
the plea. He argues his second counsel was ineffective because
he summarily concluded filing such a motion would be a "fruitless
pursuit." Defendant argues the PCR court should not have relied
on counsel's statement to deny his petition because "[t]he question
of whether or not the pursuit would be fruitless rests entirely
upon whether first counsel properly advised him during the off the
record discussions."
Defense counsel addressed defendant's request to withdraw the
plea during the sentencing hearing.
[DEFENSE COUNSEL]: I'm putting it all on the
record. I know we met briefly. I did explain
to him all the options and my understanding
of the law and I told him that I saw no basis
to make a motion. There's nothing that he was
under the influence. He answered your Honor's
questions. Your Honor questioned him about
the facts of the case and his attorney
questioned him about the facts of the case and
his understanding with all of the additional
forms because half way through the plea, your
Honor, indicated that all the forms had not
10 A-3894-15T4
been filed and you took a recess and you came
back and so I went over everything with him.
So I'm ready to proceed with sentencing, your
Honor. I don't know if my client wants to
make an application, but I have no application
with the Court to make a motion to withdraw
because there's no basis that I can find. He
didn't suffer from any mental problems. He
wasn't under the influence of drugs or alcohol
at the time and although in some letters he
indicated he was coerced by [prior defense
counsel], I think the word coercion wasn't
that he was forced to do it, but he's
indicating that he thought that she could get
a better deal for him which she didn't get.
Defendant's second counsel thoroughly explained the substantive
discussions he had with defendant surrounding potential withdrawal
of the plea. Counsel explained defendant's reasons for wanting
to withdraw the plea and why it was fruitless to proceed with such
a motion.
The sentencing judge agreed there was no basis for a motion
to withdraw the plea. He stated:
I concur with [defense counsel's] analysis of
the plea that was put on the record on January
27. I think it was very carefully done. I
had to interrupt [] [c]ounsel and make certain
that all of the proper paperwork was filled
out and completed and reviewed and understood
by [defendant]. I came back out on the bench
and made doubly certain of that fact that this
wasn't rushed through or something that he
didn't want to do. I asked him if he was
satisfied with his attorney and satisfied with
the work she did for him and he indicated that
he was. There was absolutely no ground under
11 A-3894-15T4
Slater[1] or any of the cases that preceded
Slater, although Slater arguably created new
guidelines, if you will, courtesy of the
Supreme Court, with regard to the withdrawal
of guilty pleas[.]
The PCR court found:
The Judge's position to this Court's review
seems well supported. There's no colorable
claim of innocence, as the petitioner seems
to have confessed to the sexual assaults.
Thus, Factor 1 of the Slater factors does not
support allowing the withdrawal. The
petitioner's only reason for seeking the
withdrawal was because he felt the plea offer
was too high, and this is supported [by] the
transcript. . . .
Thus, Factor 2 does not support his position.
The plea was the result of a plea bargain.
Thus, Factor 3 weighs against the petitioner.
The only factor that weighs in favor of
allowing a withdrawal is Factor 4, as there
would not be undue prejudice to the State.
The case was less than two years old when the
defendant sought to withdraw his plea.
On balance, the factors weigh heavily against
allowing the withdrawal. Thus, even if
[defense counsel] had filed the defendant's
1
In State v. Slater,
198 N.J. 145, 157-58 (2009), the Supreme
Court stated:
We hold that trial judges are to consider and
balance four factors in evaluating motions to
withdraw a guilty plea: (1) whether the
defendant has asserted a colorable claim of
innocence; (2) the nature and strength of
defendant's reasons for withdrawal; (3) the
existence of a plea bargain; and (4) whether
withdrawal would result in unfair prejudice
to the State or unfair advantage to the
accused.
12 A-3894-15T4
application, it would not have been granted
. . . and would not have changed the results
of the proceeding.
We conclude the PCR court correctly found that defendant had
not presented a prima facie case of ineffective assistance of
counsel. Therefore, the court correctly found that an evidentiary
hearing was not required.
II.
Defendant argues the PCR court abused its discretion by
concluding defendant's petition was time-barred. Again, we
disagree.
Rule 3:22-12(a)(1) states:
[N]o petition shall be filed pursuant to this
rule more than [five] years after the date of
entry . . . of the judgment of conviction that
is being challenged unless:
(A) 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[.]
The burden rests with defendant to establish excusable neglect.
State v. Milne,
178 N.J. 486, 492 (2004).
"The New Jersey Supreme Court has required a showing of
'compelling, extenuating circumstances' or, alternatively,
'exceptional circumstances,' to relax the time limitation for a
13 A-3894-15T4
PCR petition." State v. Brewster,
429 N.J. Super. 387, 400 (App.
Div. 2013) (quoting Milne,
178 N.J. at 492). The Court has
explained the decision to relax the time bar should only occur
under exceptional circumstances and the court should consider: (1)
"the extent and cause of the delay"; (2) "the prejudice to the
State"; and (3) "the importance of the petitioner's claim in
determining whether there has been an 'injustice' sufficient to
relax the time limits." State v. Afanador,
151 N.J. 41, 52 (1997)
(quoting Mitchell,
126 N.J. at 580).
Defendant argues his petition for PCR is not time-barred
because adherence to the time bar would result in an injustice.
Defendant claims he "only understood the additional penalties he
actually faced when he was incarcerated in 2015." He argues he
was "unaware that he even had the right to file a PCR," and after
becoming aware filed his petition.
The judgment of conviction is dated August 14, 2009, and
defendant did not file his PCR petition until June 30, 2015, nearly
six years later. The PCR court found defendant had not established
excusable neglect for the late filing. The court stated:
[I]gnorance of the alphabet in these cases is
not sufficient to constitute excusable
neglect, let alone ignorance of the law.
Citizens of the State are charged with knowing
the laws of New Jersey. Those who remain
uninformed do so at their own peril.
14 A-3894-15T4
As such, the defendant's supposed ignorance
should not be considered excusable neglect,
and the petition is denied on this basis.
We agree with the PCR court's determination. A "[d]efendant's
assertion that he lacks sophistication in the law does not
[constitute] exceptional circumstances." State v. Murray,
162 N.J. 240, 246 (2000). Therefore, pursuant to Rule 3:22-12(a)(1),
defendant's PCR petition should have been filed by August 14,
2014, and thus, was time-barred.
Moreover, defendant does not meet the criteria outlined in
Afanador,
151 N.J. at 52, to relax the time bar. He has not
provided an adequate reason for the delay in filing the PCR
petition, and has not demonstrated that enforcement of the time-
bar would result in a fundamental injustice. Therefore, we
conclude the PCR court correctly found defendant's petition was
time-barred.
Affirmed.
15 A-3894-15T4
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