STATE OF NEW JERSEY v. CHARLIE RODRIGUEZ

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-5616-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

CHARLIE RODRIGUEZ,

     Defendant-Appellant.
____________________________

              Submitted May 22, 2018 – Decided June 22, 2018

              Before Judges Fasciale and Moynihan.

              On appeal from Superior Court of New Jersey,
              Law Division, Passaic County, Indictment No.
              04-06-0741.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Kevin G. Byrnes, Designated
              Counsel, on the brief).

              Camelia M. Valdes, Passaic County Prosecutor,
              attorney for respondent (Christopher W. Hsieh,
              Chief Assistant Prosecutor, of counsel and on
              the brief).

PER CURIAM
       Defendant appeals the denial – without an evidentiary hearing

— of his petition for post-conviction relief (PCR) involving four

matters on which he was sentenced1 in October 2003, January 2005,

June 2009 and October 2009,2 arguing:

            POINT I

            THE FIVE-YEAR PROCEDURAL BAR FOR THE FILING
            OF A PETITION FOR POST-CONVICTION RELIEF (PCR)
            SHOULD NOT APPLY.

                 A.   ENFORCING THE PROCEDURAL BAR

1
    Defendant was sentenced pursuant to plea agreements as follows:

            1.   A two-year probationary term in October 2003 on a
            fourth-degree conspiracy to distribute a controlled
            dangerous substance (CDS), 
N.J.S.A. 2C:5-2; 2C:35-
            5(b)(12) (03-06-0615A).

            2.   A five-year probationary term in January 2005 on a
            third-degree possession of CDS, 
N.J.S.A. 2C:35-10(a)(1)
            (04-06-00741I).

            3.   A five-year probationary drug-court term in July
            2009 on a third-degree distribution of CDS in a school
            zone, 
N.J.S.A. 2C:35-7 (09-05-0559A).

            4.   A five-year probationary drug-court term in
            November 2009 on a third-degree theft from the person,
            
N.J.S.A. 2C:20-2; 2C:20-3 (09-09-1071A).

He pleaded guilty to a violation of probation in January 2014 on
09-09-1071A, and was sentenced to a three-year prison term.
2
  Although defendant was sentenced in late June 2009 and late
October 2009, the judgments of conviction were not filed until
July 2009 and November 2009, respectively. See State v. Dugan,

289 N.J. Super. 15, 20 (App. Div. 1996) (concluding a PCR petition
"must be filed within five years of entry of the judgment
memorializing the conviction"); see also R. 3:22-12; R. 3:21-5.


                                  2                          A-5616-16T3
                      CONSTITUTES A MANIFEST INJUSTICE.

                B.    THE PROCEDURAL BAR SHOULD NOT APPLY
                      DUE TO EXCUSABLE NEGLECT.

          POINT II

          THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE
          OF COUNSEL AS GUARANTEED BY THE SIXTH
          AMENDMENT TO THE UNITED STATES CONSTITUTION
          AND ART. 1, PAR 10 OF THE NEW JERSEY
          CONSTITUTION.

          POINT III

          THE DEFENDANT IS ENTITLED TO AN EVIDENTIARY
          HEARING.

We conclude these arguments are meritless and affirm.

     Absent an evidentiary hearing, our review of the factual

inferences drawn by the PCR court from the record is de novo.

State v. Blake, 
444 N.J. Super. 285, 294 (App. Div.), certif.

denied, 
226 N.J. 213 (2016).       Likewise, we review de novo the PCR

court's legal conclusions.        Ibid.

     All of defendant's arguments center on the contention that

he was never advised of what he terms "the material collateral

consequences"   of   his   plea    agreements:   that   his   New    Jersey

convictions could be used to enhance his sentence on federal

charges on which he was arrested in May 2016.

     We reject that basis as a reason to relax the strictures of

Rule 3:22-12(a)(1) which, at the time defendant filed his petition,

provided in pertinent part:

                                     3                              A-5616-16T3
           no petition shall be filed pursuant to this
           rule more than 5 years after the date of entry
           pursuant to Rule 3:21-5 of the judgment of
           conviction that is being challenged 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.

"[A] court should relax Rule 3:22-12's bar only under exceptional

circumstances.      The court should consider 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."                          State v.

Mitchell, 
126 N.J. 565, 580 (1992).

     Defendant did not file a petition because he did not know his

prior   convictions     would    enhance      the   sentence       meted    out    in

connection with his 2016 federal charges.                "Ignorance of the law

and rules of court does not qualify as excusable neglect."                    State

v. Merola, 
365 N.J. Super. 203, 218 (Law Div. 2002), aff'd o.b.,


365 N.J. Super. 82 (App. Div. 2003).                Similarly, a defendant's

"lack[] [of] sophistication in the law" is not excusable neglect.

State v. Murray, 
162 N.J. 240, 246 (2000).                Further, defendant's

significant filing delay – ranging from seven to thirteen years —

would   obviously    prejudice    the       State   if   it   was    required      to

reconstruct these matters for trial.

                                        4                                   A-5616-16T3
     We also determine that the substance of defendant's claim

presents no injustice to relax the Rule, and that it also fails

to demonstrate that his trial counsel erred so seriously that he

failed to function as a constitutionally-guaranteed counsel.
3 We


 3
  To establish a prima facie claim of ineffective assistance of
counsel, the defendant

          must satisfy two prongs.      First, he must
          demonstrate that counsel made errors "so
          serious that counsel was not functioning as
          the 'counsel' guaranteed the defendant by the
          Sixth Amendment." Strickland v. Washington,
          
466 U.S. 668, 687 (1984); State v. Fritz, 105
          N.J.   42,   52  (1987).       An   attorney's
          representation is deficient when it "[falls]
          below     an    objective      standard     of
          reasonableness." Strickland, 
466 U.S.  at 688;
          see Fritz, 
105 N.J. at 58.

               Second, a defendant "must show that the
          deficient     performance    prejudiced    the
          defense." Strickland, 
466 U.S.  at 687; Fritz,
          
105 N.J. at 52. A defendant will be prejudiced
          when counsel's errors are sufficiently serious
          to deny him "a fair trial." Strickland, 466 U.S.  at 687; Fritz, 
105 N.J. at 52.        The
          prejudice standard is met if there is "a
          reasonable probability that, but for counsel's
          unprofessional errors, the result of the
          proceeding   would   have   been   different."
          Strickland, 
466 U.S.  at 694; Fritz, 
105 N.J.
          at 52.    A "reasonable probability" simply
          means a "probability sufficient to undermine
          confidence in the outcome" of the proceeding.
          Strickland, 
466 U.S.  at 694; Fritz, 
105 N.J.
          at 52.

          [State v. O'Neil, 
219 N.J. 598, 611 (2014)
          (alteration in original).]

                                5                          A-5616-16T3
previously held the failure of counsel to advise a defendant "of

possible or even potential enhancement consequences of future

aberrant conduct is not ineffective assistance of counsel.                There

is no constitutional requirement for such advice.                It involves

only a collateral issue."      State v. Wilkerson, 
321 N.J. Super.
 219, 227 (App. Div. 1999).     Thus none of defendant's counsel were

ineffective because they did not advise him he would face a greater

sentence if he was later convicted in federal court.               Likewise,

the failure to so advise him does not implicate an injustice that

would extend the five-year filing limit.

     We   determine   the   balance       of   defendant's    arguments   lack

sufficient merit for discussion in this opinion.             R. 2:11-3(e)(2).

We add, defendant did not present a prima facie case in support

of his PCR application by demonstrating a reasonable likelihood

of succeeding to warrant an evidentiary hearing.              R. 3:22-10(b);

State v. Preciose, 
129 N.J. 451, 462-63 (1992).

     Affirmed.




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