STATE OF NEW JERSEY v. ANTONIO MANUEL MERCEDES
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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3085-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTONIO MANUEL
MERCEDES,
Defendant-Appellant.
Submitted September 15, 2021 – Decided September 29, 2021
Before Judges Rose and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 86-11-1362.
Antonio Mercedes, appellant pro se.
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Marc A. Festa, Senior
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Antonio Manuel Mercedes appeals pro se from a February 7,
2019 Law Division order denying his fifth petition for post-conviction relief
(PCR) without an evidentiary hearing. We affirm because the petition was
untimely filed and otherwise lacks merit.
The facts leading to defendant's conviction are summarized in our
unpublished decision, denying defendant's third petition for PCR:
A twenty-seven[-]count indictment was returned
against defendant in 1986 charging him, among other
crimes, with seven counts of kidnapping and related
aggravated sexual assault and attempted aggravated
sexual assault involving at least nine female victims,
some of them young children. He was first tried by a
jury on four counts alleging commission of those
crimes against a woman and her young daughter.
Defendant was found guilty and was sentenced to an
aggregate prison term of eighteen years subject to eight
years of parole ineligibility. He thereafter entered into
plea negotiations with the prosecutor, and an agreement
was reached in which defendant agreed, with respect to
the remaining counts to plead guilty to three counts of
kidnapping, two counts of aggravated sexual assault,
two counts of attempted aggravated sexual assault, and
one count of robbery. The State's undertaking was to
move for the dismissal of all other counts and to
recommend an aggregate sentence of fifty-five years
subject to twenty-seven years of parole ineligibility to
run concurrently with sentence imposed following trial.
[State v. Mercedes, No. A-0505-02 (App. Div. Apr. 8),
certif. denied, 180 N.J. 458 (2004) (slip op. at 2).]
A-3085-18
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On September 2, 1988, the trial judge sentenced defendant pursuant to the
State's recommendation. See id. at 3. Defendant did not appeal his convictions
but filed a direct appeal of his sentence, which this court heard on an excessive
sentencing calendar pursuant to Rule 2:9-11 and denied in an April 4, 1989
order. Id. at 3-4. The Supreme Court thereafter denied certification. State v.
Mercedes, 121 N.J. 597 (1990).
Defendant's four ensuing PCR petitions – most of which claimed his plea
was not voluntary and knowing – were denied, although two PCR courts
resentenced defendant for reasons that are not relevant to this appeal. We
affirmed the PCR courts' orders; the Court denied certification. See State v.
Mercedes, No. A-2483-13 (App. Div. Sept. 3, 2015), certif. denied, 226 N.J. 212
(2016); State v. Mercedes, No. A-0505-02 (App. Div. Apr. 8), certif. denied,
180 N.J. 458 (2004); State v. Mercedes, No. A-0578-95 (App. Div. Feb. 28),
certif. denied, 146 N.J. 69 (1996); State v. Mercedes, No. A-5211-90 (App. Div.
June 1), certif. denied, 134 N.J. 484 (1993).
Thirty years after defendant was sentenced, he filed the present July 12,
2018 PCR petition. Defendant asserted his plea counsel was ineffective – in
1988 – for failing to obtain a 2014 State Bureau of Identification (SBI) "report,"
which lists defendant's arrest date on the indictment as July 9, 1986. Defendant's
A-3085-18
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PCR petition references the SBI report as "Attachment 1." Apparently, however,
the report was not attached to his petition. 1 According to the amended judgment
of conviction (JOC) for defendant's sentence on his guilty pleas, defendant was
arrested on August 21, 1986.
Defendant claimed the SBI report proves he was incarcerated,
commencing July 9, 1986 and, as such, he could not have committed the offenses
to which he pled guilty, which "were committed on July 19, 1986, [2] July 21,
1986[,] and August 21, 1986." Notably absent from defendant's petition is the
date on which he received the SBI report. Rather, defendant asserted he
"recently obtained" the report "after April 2014, and less than five years ago
when [his] fingerprints were taken at South [W]oods State Prison." Defendant
further claimed the State wrongfully withheld the SBI report.
1
Defendant provided the SBI report in his appendix on appeal. Because the
report was not presented to the trial court for consideration, however, it is
inappropriate for consideration on appeal. See Zaman v. Felton, 219 N.J. 199,
226-27 (2014). For purposes of this appeal, we nonetheless assume the report
reflects an arrest date of July 9, 1986.
2
Defendant contends the first incident occurred on July 19, 1988, but several
documents contained in his appendix on appeal indicate the incident occurred
on July 9.
A-3085-18
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Defendant sought assignment of counsel to represent him on the present
petition. See R. 3:22-6(b) (requiring good cause for the assignment of counsel
on a second or subsequent PCR petition).
Following argument on February 7, 2019, the PCR judge issued an oral
decision, denying defendant's motion for assignment of counsel and PCR.
Pertinent to this appeal, the judge determined defendant's petition was
procedurally barred as untimely and otherwise lacked merit.
Noting defendant failed to support his petition with documentary evidence
establishing he was in custody when the crimes were committed, the PCR judge
found, regardless, "[t]his is not an instance where there was a failure of counsel
in the past to bring this issue up. This was . . . information that [defendant]
could have told everyone back in 1986," instead of raising it "for the first time"
in the present petition. The judge elaborated:
So, not only [wa]s . . . no documentation
provided, it [wa]s something that [defendant] could
have brought to his attorney's attention. This is not
newly discovered evidence. This is knowledge that he
personally had. So, even if he just received the
documentation from the State Police, this is an issue
that he – and I emphasize he – knew about almost
twenty [sic] years ago.
A-3085-18
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Moreover, in response to defendant's assertion that he "always proclaimed
[his] innocence" to the charges to which he pled guilty, the judge rhetorically
asked:
Well, why would you enter into a plea bargain
and plead guilty to charges that you know you couldn't
possibly have committed because you're incarcerated?
That would have been very easy to prove at that time.
And now all the records can't be found. . . . My team
leader has searched the records both here, [in the]
Probation [Department], the County Clerk's Office, the
Bureau of Prisons, the Passaic County Jail. And there
[are] no records to be had. There's nothing to indicate
that you were incarcerated.
This appeal followed.
On appeal, defendant maintains the "newly-discovered" SBI report
establishes that he was in custody on the date the crimes were committed. He
raises the following overlapping points for our consideration:
POINT I
PLEA COUNSEL WAS INEFFECTIVE BASED ON
FAILURE TO INVESTIGATE AN ALIBI DEFENSE
AND THERE ARE MATERIAL FACTS IN DISPUTE,
IT WAS ERROR TO DENY THE PETITION AND TO
DENY [DEFENDANT] AN EVIDENTIARY
HEARING TO FULLY PRESENT THIS
INEFFECTIVE ASSISTANCE OF COUNSEL
CLAIM.
A-3085-18
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POINT II
THE STATE FAILED TO DISCLOSE
EXCULPATORY EVIDENCE PRIOR TO . . .
DEFENDANT ENTERING INTO PLEA
AGREEMENT [SIC], WHICH CONSTITUTES A
BRADY[3] VIOLATION.
POINT III
[]DEFENDANT HAS PRESENTED A PRIMA FACIE
CLAIM OF INEFFECTIVE[] ASSISTANCE OF
COUNSEL, BECAUSE MATERIAL ISSUES OF
DISPUTED FACTS LIE OUTSIDE THE RECORD
AND RESOLUTION OF THE ISSUES
NECESSITATES A HEARING UNDER [R.] 3:22-
10(b); AND UNDER STATE V. PORTER, 216 N.J.
343, 355 (2013).
POINT IV
[DEFENDANT]'S CONVICTION IN VIOLATION OF
[HIS] SIXTH AMENDMENT RIGHT TO HAVE
SUCH ALLEGATIONS TRIED BEFORE A JURY,
LE[]D TO PETITIONER'S COMMITMENT UNDER
THE [SVPA].
POINT V
THE [PCR] COURT DENIED THE APPLICATION
FOR [PCR] WITHOUT AN EVIDENTIARY
HEARING OF EXCULPATORY EVIDENCE WHICH
WOULD HAVE IMPACTED [DEFENDANT']S
DECISION TO PLEAD GUILTY.
(Not raised below)
3
Brady v. Maryland, 373 U.S. 83 (1963).
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We have carefully considered defendant's arguments in view of the
applicable law, and conclude they lack sufficient merit to warrant extended
discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the
reasons succinctly stated by the PCR judge. We add the following comments to
give context to the judge's decision.
Our analysis of the issues raised on appeal is guided by a review of the
relevant provisions of the two court rules that apply to a second or subsequent
PCR. Pursuant to Rule 3:22-12(a)(2)(B), a "second or subsequent petition shall
[not] be filed more than one year after . . . 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." Further, under
Rule 3:22-4(b)(1) and (2)(B),
a second or subsequent petition for [PCR]
shall be dismissed unless . . . it is timely
under R[ule] 3:22-12(a)(2); and . . . it
alleges on its face . . . that the factual
predicate for the relief sought could not
have been discovered earlier through the
exercise of reasonable diligence, and the
facts underlying the ground for relief, if
proven and viewed in light of the evidence
as a whole, would raise a reasonable
probability that the relief sought would be
granted[.]
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Although the time limitations are not absolute and may be waived to
prevent a fundamental injustice, the rules must be viewed in light of their dual
key purposes: "to ensure . . . the passage of time does not prejudice the State's
retrial of a defendant" and "to respect the need for achieving finality." State v.
DiFrisco, 187 N.J. 156, 166-67 (2006) (second quotation quoting State v.
Mitchell, 126 N.J. 565, 576 (1992)). Moreover, a PCR petition is not a substitute
for an appeal of a conviction under Rule 3:22-3, and any available ground for
relief not asserted in a prior proceeding is barred if it could have been raised
earlier under Rule 3:22-4, or was asserted earlier and adjudicated on its merits
under Rule 3:22-5.
Here, defendant waited until July 2018 to file his fifth PCR petition,
asserting for the first time that he was arrested on July 9, 1986. He has neither
provided the date on which he received the SBI report nor any reason why he
could not have discovered his alleged July 9, 1986 arrest date by exercising
reasonable diligence. Accordingly, defendant's petition is time-barred under
Rule 3:22-12(a)(2)(B), and Rule 3:22-4(b)(1) and (2)(B). Moreover, to the
extent defendant belatedly claims he had an alibi defense, his argument should
have been raised on direct appeal under Rules 3:22-3 and -4.
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Further, in our September 3, 2015 opinion affirming the denial of
defendant's fourth PCR application, we concluded defendant's amended JOC
"contains a verifiably correct calculation of defendant's jail and gap time credit."
Mercedes, No. A-2483-13 (slip op. at 4). Notably, that JOC reflects defendant
received jail time credit from August 21, 1986, to July 16, 1987, and gap time
credit from July 17, 1987, to September 1, 1988. Absent from the JOC is any
indication that defendant was in custody when the three crimes to which he pled
guilty were committed. As such, defendant's petition also is barred under Rule
3:22-5.
Accordingly, even if the SBI report had been attached to defendant's PCR
petition and reviewed by the PCR judge, the result would not have changed. In
sum, defendant has articulated no basis to relax the clear restrictions concerning
subsequent PCR petitions imposed by the Rules.
Affirmed.
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