STATE OF NEW JERSEY v. PERSIO LORA

NOT FOR PUBLICATION WITHOUT THE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-3814-18

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

PERSIO LORA, a/k/a JOHN
JOHNSON, and JOHNNY
LORA,

     Defendant-Appellant.
________________________

                   Submitted January 12, 2021 – Decided March 26, 2021

                   Before Judges Fisher and Moynihan.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Indictment No. 00-06-1337.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Phuong V. Dao, Designated Counsel, on the
                   brief).

                   Mark Musella, Bergen County Prosecutor, attorney for
                   respondent (Jaimee M. Chasmer, Assistant Prosecutor,
                   of counsel and on the brief).

PER CURIAM
      On February 7, 2001, a jury found defendant Persio Lora guilty of two

counts of third-degree burglary,  N.J.S.A. 2C:18-2, and one count of third-degree

theft,  N.J.S.A. 2C:20-3, in connection with a break-in at a garage on September

7, 1999, the details of which are capsuled in our decision affirming his

convictions on direct appeal. State v. Lora, No. A-5978-10 (App. Div. Oct. 9,

2013). He fled prior to his original 2001 sentencing date, and was not sentenced

until March 4, 2011. 1 He appeals the denial of his postconviction relief (PCR)

petition, filed on March 12, 2018, arguing:

            POINT I

            IN THE INTEREST OF JUSTICE, [DEFENDANT'S]
            PCR CLAIM IS NOT TIME BARRED.

            POINT II

            DEFENDANT      RECEIVED      INEFFECTIVE
            ASSISTANCE OF TRIAL COUNSEL.

                  (a)   Trial counsel was ineffective by not calling
                        Defendant as a witness at trial.

                  (b)   Trial counsel failed to object to [Albert]
                        Sealy's and [O]fficer Torell's testimonies.




1
  The original judgment of conviction is dated March 11, 2011; an amended
judgment reflecting additional jail credits is dated January 20, 2012.
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                                       2
            POINT III

            THE PCR [JUDGE'S] CUMULATIVE ERRORS
            DENIED DEFENDANT THE RELIEF TO WHICH HE
            WAS ENTITLED.

      Reviewing the factual inferences drawn by the PCR judge, Judge Robert

M. Vinci, and his legal conclusions de novo because he did not conduct an

evidentiary hearing, State v. Blake,  444 N.J. Super. 285, 294 (App. Div. 2016),

and considering "the facts in the light most favorable to [the] defendant," State

v. Preciose,  129 N.J. 451, 462-63 (1992), we affirm substantially for the reasons

set forth in Judge Vinci's oral opinion, chiefly because defendant's petition was

time barred. It was not filed within five years of "the date of entry[,] pursuant

to Rule 3:21-5[,] of the judgment of conviction that is being challenged ." R.

3:22-12(a)(1).

      A tardy petition may be considered if the petition shows excusable neglect

for the late filing and that a fundamental injustice will result if defendant's

claims are not considered on their merits. State v. Brewster,  429 N.J. Super.
 387, 400 (App. Div. 2013); R. 3:22-12(a)(1)(A).            "Absent compelling,

extenuating circumstances, the burden to justify filing a petition after the five-

year period will increase with the extent of the delay." State v. Afanador,  151 N.J. 41, 52 (1997). "[A] court should relax Rule 3:22-12's bar only under


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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).

      As Judge Vinci concluded, defendant failed to meet that burden by

arguing he was unable to file a punctual petition because he was: 1) detained

by immigration authorities until 2013; 2) thereafter occupied as the sole

breadwinner for his family, caring for his mentally-ill child and fighting

deportation; 3) unable to afford private counsel and was not timely informed

that the Office of the Public Defender (OPD) could represent him.

      Judge Vinci rejected defendant's first argument, observing defendant

offered no "legitimate reason why he couldn't file his PCR [petition] during the

three years between his release [from immigration detention] in 2013" and the

March 2 016 Rule 3:22-12 deadline. We agree, and add defendant failed to show

why he did not file while in custody; his trial counsel's alleged ineffectiveness —

as meagerly set forth in his pro se petition—was known to him and, as filed,

required no extrinsic materials.

      Likewise, defendant's second grouping of reasons does not amount to

excusable neglect. As the State argues in its merits brief, quoting State v.


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Norman,  405 N.J. Super. 149, 159 (App. Div. 2009), "[t]o meet his burden,

defendant must do 'more than simply provid[e] a plausible explanation for [his]

failure to file a timely PCR petition.'" The facts a defendant alleges supports

his claim of excusable neglect must be set forth in the PCR petition. Mitchell,

 126 N.J. at 576-77. Defendant's petition does not detail why his job, family care

and deportation defense prevented him from filing a petition before the deadline.

He fails to provide even a plausible explanation.

      Defendant's third reason is equally unavailing.           Not only was he

represented by the OPD on direct appeal, signaling his awareness of the Public

Defender's availability to represent him, he filed his PCR petition pro se.

Defendant has not shown exceptional circumstances to warrant relief from the

time bar.

      We also agree with Judge Vinci's assessment, in determining defendant

would not face an injustice if his petition was procedurally barred, that the

            extraordinary delay . . . between the incident . . . in 1999
            and [the day of the PCR hearing] was almost solely as
            a result of . . . defendant's decision to flee the
            jurisdiction for ten years, and granting the petition
            would result in the State needing to try this case
            [twenty] years after the fact

would cause great prejudice to the State. Not only would the passage of time

impact the State's case that relied on the testimony of police officers, but Sealy,

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the cooperating co-perpetrator who testified against defendant, has completed

the probationary sentence imposed for his plea to charges that arose from the

same incident. Obviously if it were required to reconstruct this matter for trial,

the State would be prejudiced by defendant's significant filing delay. Our

Supreme Court recognized:

            [a]s time passes after conviction, the difficulties
            associated with a fair and accurate reassessment of the
            critical events multiply. Achieving "justice" years after
            the fact may be more an illusory temptation than a
            plausibly attainable goal when memories have dimmed,
            witnesses have died or disappeared, and evidence is lost
            or unattainable . . . . Moreover, the [time-bar] Rule
            serves to respect the need for achieving finality of
            judgments and to allay the uncertainty associated with
            an unlimited possibility of relitigation. The Rule
            therefore strongly encourages those believing they have
            grounds for post-conviction relief to bring their claims
            swiftly, and discourages them from sitting on their
            rights until it is too late for a court to render justice.

            [Mitchell,  126 N.J. at 575-76.]

      Judge Vinci analyzed each of defendant's three allegations of his trial

counsel's ineffectiveness: the failure to call defendant as a witness and the

failure to object to the admission of testimony from Sealy and Officer Torell.

We see no reason to disturb his conclusions rejecting those arguments,

particularly that defendant failed to meet the second prong of the test set forth

in Strickland v. Washington,  466 U.S. 668 (1984) by showing the alleged errors

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would have impacted the outcome of a trial.2 There is insufficient importance

to defendant's claims to conclude "there has been an 'injustice' sufficient to relax

the time limits." Mitchell,  126 N.J. at 580.

      To the extent not addressed, we determine the balance of defendant's

arguments, including that cumulative errors by the judge denied him the relief

to which he was entitled, to be without sufficient merit to warrant further

discussion. R. 2:11-3(e)(2).

      Affirmed.




2
   To establish a PCR claim of ineffective assistance of counsel, a defendant
must satisfy the two-prong test formulated in Strickland,  466 U.S.  at 687, and
adopted by our Supreme Court in State v. Fritz,  105 N.J. 42, 58 (1987), first by
"showing that counsel made errors so serious that counsel was not functioning
as the 'counsel' guaranteed . . . by the Sixth Amendment," then by proving he
suffered prejudice due to counsel's deficient performance, Strickland,  466 U.S. 
at 687; see also Fritz,  105 N.J. at 52. Defendant must show by a "reasonable
probability" that the deficient performance affected the outcome. Fritz,  105 N.J.
at 58.


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