STATE OF NEW JERSEY v. JUAN M. LOPEZ

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0195-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JUAN M. LOPEZ,

     Defendant-Appellant.
_______________________

                   Submitted March 8, 2021 – Decided March 26, 2021

                   Before Judges Mayer and Susswein.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Gloucester County, Indictment No. 11-06-
                   0627.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Monique Moyse, Designated Counsel, on the
                   brief).

                   Christine A. Hoffman, Acting Gloucester County
                   Prosecutor, attorney for respondent (Steven J. Salvati,
                   Special Deputy Attorney General/Acting Assistant
                   Prosecutor, on the brief).

PER CURIAM
      Defendant Juan M. Lopez appeals from a July 2, 2019 order denying his

petition for post-conviction relief (PCR) without an evidentiary hearing. We

affirm for the thorough and cogent reasons expressed by Judge Kevin T. Smith

in his written decision dated July 1, 2019.

      Defendant was indicted on the following charges: two counts of second-

degree sexual assault of a minor under the age of thirteen,  N.J.S.A. 2C:14-2(b);

third-degree endangering the welfare of a child,  N.J.S.A. 2C:24-4(a), and fourth-

degree lewdness observed by children under the age of thirteen,  N.J.S.A. 2C:14-

4(b)(1). After a jury trial, defendant was convicted on all but one count of

second-degree sexual assault of a minor under the age of thirteen.  1 On January
 25, 2013, defendant was sentenced to an aggregate term of six years, with an

eighty-five percent parole disqualifier.      He did not file a direct appeal or an

excessive sentencing appeal.

      On April 3, 2018, more than five years after entry of the judgment of

conviction, defendant filed a PCR petition and was subsequently assigned

counsel, who filed a brief in support of the application. In his PCR petition,



1
  The facts leading to defendant's conviction are addressed at length in Judge
Smith's written decision and we need not repeat the details of the sexual assaults
involving the minors.
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defendant claimed his trial counsel was ineffective as a result of failing to file a

direct appeal, failing to object to certain testimony proffered by the testifying

police officer, and failing to object to certain statements during the prosecutor's

closing argument regarding the credibility of a witness who did not testify at

trial.

         On June 21, 2019, Judge Smith heard counsels' PCR arguments. On July

2, 2019, he denied defendant's PCR petition for the reasons explained in his July

1, 2019 written decision. Judge Smith addressed defendant's petition on the

merits despite the State's contention defendant's PCR claims were time barred.

         In his substantive review of defendant's PCR arguments, Judge Smith

concluded defendant failed to establish a prima facie case of ineffective

assistance of counsel and, accordingly, was not entitled to an evidentiary

hearing.     He noted defendant's claims were "mere bald assertion[s]" and

unsupported by any factual evidence in the record. Nor did the judge find

defense counsel's trial strategy throughout the trial and during closing argument

rose "to the level of ineffective assistance of counsel as it was not so serious to

deprive [p]etitioner of a fair trial." In addition, Judge Smith rejected defendant's

pro se petition arguments, finding the arguments were "all without merit as they

[we]re unsubstantiated, vague or merely reflect[ed] his dissatisfaction with


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                                         3
counsel's defense strategy." Judge Smith held defendant failed to make "a prima

facie showing of ineffective assistance of counsel and ha[d] not shown that, but

for trial counsel's conduct, the result would have been different."

      On appeal, defendant raises the following argument:

            [DEFENDANT] IS ENTITLED TO A DIRECT
            APPEAL OR AN EVIDENTIARY HEARING ON HIS
            CLAIM THAT TRIAL COUNSEL RENDERED
            INEFFECTIVE ASSISTANCE OF COUNSEL BY
            FAILING TO FILE A DIRECT APPEAL AND
            OBJECT AT TRIAL WHEN THE STATE
            IMPROPERLY VOUCHED FOR ITS WITNESS.

      We are not persuaded by defendant's arguments on the merits and affirm

for the reasons expressed by Judge Smith in his written decision, determining

defendant failed to establish a claim of ineffective assistance of counsel in

accordance with Strickland v. Washington,  466 U.S. 668 (1984), and State v.

Fritz,  105 N.J. 42 (1987). We add only the following comments.

      In addition to failing to establish an ineffective assistance of counsel

claim, defendant's PCR petition was time barred. A defendant's first petition for

PCR must be filed within five years of a judgment of conviction (or within five

years of the date of the sentence). R. 3:22-12(a)(1); State v. Dugan,  289 N.J.

Super. 15, 19 (App. Div. 1996). The purpose of this time bar is to encourage

defendants who believe they have a claim to assert the claim quickly and


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discourage defendants "from sitting on their rights until it is simply too late for

a court to render justice." State v. Cummings,  321 N.J. Super. 154, 165 (App.

Div. 1999) (citing State v. Mitchell,  126 N.J. 565, 576 (1992)). However, "the

rule is not rigid." Ibid. A PCR petition may be filed after the five year limit if

"it alleges facts showing that the delay . . . 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

fundamental injustice . . . ." R. 3:22-12(a)(1)(A). The time bar may "be relaxed

only under truly exceptional circumstances." Cummings,  321 N.J. Super. at 168

(citing Mitchell,  126 N.J. at 580).

      Here, defendant's PCR petition was filed more than five years following

his judgment of conviction. Because the petition was filed after the five-year

time bar, defendant was required to demonstrate excusable neglect and, if the

defendant's factual assertions were found to be true, a reasonable probability

that enforcement of the time bar would result in fundamental injustice. R. 3:22-

12(a)(1)(A).

      Defendant did not produce any competent evidence to warrant the

relaxation of the requirements of Rule 3:22-12 and the consideration of his

untimely PCR petition. Defendant's brief is devoid of any asserted excusable


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                                        5
neglect or fundamental injustice. On the other hand, the State argued it would

be prejudiced because the issues in defendant's petition concern a trial that took

place "more than seven and half years ago," involving "testimony from the eight-

and ten-year old victims about incidents that occurred when they were six- and

eight-years old, respectively." Thus, defendant cannot carry his burden, and the

PCR petition is time barred.

      Even if defendant's claims were not procedurally barred, he failed to

establish a prima facie case of ineffective assistance of counsel under the

Strickland/Fritz analysis.     To establish an ineffective assistance of counsel

claim, a defendant must demonstrate: (1) "counsel's performance was deficient,"

and (2) "the deficient performance prejudiced the defense." Strickland,  466 U.S. 
at 687; see also Fritz,  105 N.J. at 58 (adopting the Strickland two-part test in

New Jersey).

      Because defendant failed to allege facts sufficient to support a prima facie

case of ineffective assistance of counsel, no evidentiary hearing was required.

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

      Affirmed.




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