STATE OF NEW JERSEY v. GUILIO MESADIEU

NOT FOR PUBLICATION WITHOUT THE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-4136-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

GUILIO MESADIEU, a/k/a
GUILIO MASADIEU,
EMMANUEL MERVALUS,
EMMANUEL MERVUILUS,
GUILIO MESUDIEU, JASON
PIERRE, and JOSEPH PEIRRE,

     Defendant-Appellant.
___________________________

                   Submitted January 31, 2022 – Decided February 18, 2022

                   Before Judges Sabatino and Mayer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Indictment Nos. 01-04-0501,
                   03-10-1088, 07-03-0169 and Accusation No. 02-08-
                   0918.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Al Glimis, Designated Counsel, on the
                   brief).
            William A. Daniel, Union County Prosecutor, attorney
            for respondent (Michele C. Buckley, Assistant
            Prosecutor, of counsel and on the brief).

PER CURIAM

      Defendant Guilio Mesadieu appeals from a February 13, 2020 order

denying his petition for post-conviction relief (PCR) without an evidentiary

hearing. We affirm.

      Between 2001 and 2007, defendant was successively charged and indicted

with drug-related offenses. On Indictment No. 01-04-0501, defendant pleaded

guilty to third-degree possession of a controlled dangerous substance (CDS)

with intent to distribute and was sentenced in September 2002 to four years in

prison with a one-year parole bar.

      On Indictment No. 03-10-1088, defendant proceeded to trial on various

drug-related charges and an obstruction charge. He was found guilty after a jury

trial on the obstruction charge and acquitted of the drug-related charges. He was

sentenced in March 2004 to one year probation.

      On Indictment No. 07-03-0169, defendant was charged with various drug-

related offenses and, after a jury trial, found guilty on all counts. In August

2008, defendant was sentenced to an extended term of seven years in prison with

a forty-two-month parole bar on the charge of distributing CDS in a school zone


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and a concurrent seven-year term on the other drug charges. We affirmed those

convictions and sentence on direct appeal. State v. Mesadieu, No. A-2408-08

(App. Div. July 22, 2011).

      On May 16, 2017, more than five years after the entry of the 2008

judgments of conviction, defendant filed a PCR petition. One year later, the

PCR judge dismissed defendant's petition without prejudice. In November,

2018, defendant moved to reinstate his PCR petition.

      On February 13, 2020, the PCR judge heard arguments on defendant's

petition. In a February 13, 2020 order and accompanying written decision, the

judge denied defendant's petition. He 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, the judge

concluded defendant failed to establish a prima facie case of ineffective

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

hearing.

      The judge rejected defendant's contention the 2015 ACLU report

corroborated his claim that he was the victim of pervasive police misconduct in

support of his request for PCR beyond the five-year period for filing his petition.

The judge found the 2015 ACLU report focused on police treatment of


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defendants who were arrested and charged with the following non-indictable

offenses: loitering, defiant trespass, disorderly conduct, and marijuana

possession. 1 The 2015 ACLU report analyzed racially disparate law

enforcement practices against defendants charged with these low-level, non-

indictable offenses.   The judge explained defendant pleaded guilty or was

convicted of indictable offenses for second-degree and third-degree possession

of cocaine. Thus, the judge determined the 2015 ACLU report bore no "nexus"

to defendant's convictions or the allegations in defendant's PCR petition. The

judge expressly stated he was "not questioning the accuracy of the ACLU report"

and did not contend "that racial profiling and police misconduct do not occur." 2

Moreover, the judge found the 2015 ACLU report failed to constitute newly

discovered evidence in support of defendant's late filing of a PCR petition.


 1 The 2015 ACLU report, dated December 2015 and entitled "Selective Policing
– Racially Disparate Enforcement of Low-Level Offenses in New Jersey,"
analyzed data for individuals arrested and charged by police with low-level
offenses in four different municipalities, including the City of Elizabeth,
between 2005 and 2013. Defendant, who lived in Elizabeth, claimed he was
harassed, falsely arrested, and beaten by Elizabeth police officers during the
time frame reviewed by the ACLU in its report.
2
  We also appreciate the import of the 2015 ACLU report and its suggestions
for addressing racial disparity in the arrest practices of law enforcement in New
Jersey and enacting various police reforms to eliminate disparate police
enforcement practices.


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        The judge also addressed each claimed instance of ineffective assistance

of counsel and found defendant's assertions lacked merit. The judge concluded

defendant failed to present prima facie evidence that his counsel's decision to

refrain from raising allegations of police misconduct at trial was objectively

unreasonable because the 2015 ACLU report was not in existence at the time

defendant proceeded to trial in any of his cases. Moreover, defendant failed to

proffer any corroborating testimony or other evidence of such misconduct.

Additionally, the judge rejected defendant's claim he was coerced into entering

a guilty plea in 2002 as belied by the record from the plea hearing and sentencing

hearing. Further, the judge found no evidence defendant asked his counsel to

file a direct appeal on his 2002 or 2004 convictions3 or assert what issues, if any,

would have been appropriate to raise on a direct appeal from those convictions.

        Regarding defendant's motion to withdraw his 2002 guilty plea, the judge

determined defendant first raised the issue fifteen years post-sentencing. As a

result, the judge found defendant's delay in seeking to withdraw that plea would

significantly prejudice the State.     He also concluded defendant failed to

demonstrate a "manifest injustice" entitling him to withdraw his guilty plea.

        On appeal, defendant raises the following arguments:


3
    Defendant filed a direct appeal from his 2008 convictions.
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POINT I

    THE PCR COURT ERRED IN DENYING
    DEFENDANT'S     PETITION    FOR    POST-
    CONVICTION RELIEF WITHOUT AFFORDING
    HIM    AN   EVIDENTIARY    HEARING    TO
    DETERMINE THE MERITS OF HIS CONTENTION
    THAT THE INSTANT CONVICTIONS SHOULD BE
    VACATED DUE TO POLICE MISCONDUCT; THAT
    HE WAS DENIED THE RIGHT TO THE EFFECTIVE
    ASSISTANCE OF COUNSEL DUE TO TRIAL
    COUNSEL'S FAILURE TO INVESTIGATE AND
    ADVANCE     HIS   DEFENSE    OF   POLICE
    MISCONDUCT BEFORE ADVISING HIM TO
    PLEAD GUILTY; AND THAT HIS GUILTY PLEAS
    WERE NOT KNOWING AND VOLUNTARY AND
    SHOULD BE VACATED AS A MANIFEST
    INJUSTICE.

    A. The Prevailing Legal Principles Regarding Claims
       of Ineffective Assistance of Counsel, Evidentiary
       Hearings and Petitions for Post-Conviction Relief.

    B. The PCR Court Erred in Failing to Order an
       Evidentiary Hearing to Further Substantiate
       Defendant's Claim that he was the Victim of Police
       Misconduct and Malicious Prosecution.

    C. The PCR Court Erred in Failing to Order an
       Evidentiary Hearing to Further Substantiate
       Defendant's Claim that he was Denied the Effective
       Assistance of Counsel.

    D. Defendant's Guilty Pleas were not Entered
       Knowingly and Voluntarily and the PCR Court
       Erred in Denying the Motion to Vacate the Pleas as
       a Manifest Injustice.


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        We first consider whether defendant's PCR application was timely

submitted. 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 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 filed his PCR petition more than five years after his 2008

judgments of conviction. Because the petition was filed after the five-year time

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


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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 for the court to consider his

untimely PCR petition. He cites his age at the time of the first conviction and

his failure to understand the law regarding his right to seek PCR as support for

finding excusable neglect to relax the five-year time bar. However, defendant

was represented by counsel and had the benefit of legal advice during the

proceedings resulting in his 2002, 2004, and 2008 convictions. Defendant's

numerous criminal convictions over a six-year period evidenced his familiarity

with the criminal justice system. Thus, defendant's age at the time of his first

conviction and claimed lack of familiarity with the legal system did not

demonstrate excusable neglect warranting relaxation of the time bar for review

of his PCR petition. Additionally, defendant never argued enforcement of the

time bar resulted in a fundamental injustice to support the late filing of his PCR

petition.

      Defendant also argues his PCR petition was timely submitted once when

he became aware of the 2015 ACLU report. However, Rule 3:22-12(a)(2)(b),


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governing the filing of a second PCR application, requires the petition to be filed

within one year of discovering new facts that could not be discovered earlier.

See also State v. Brewster,  429 N.J. Super. 387, 399-400 (App. Div. 2013)

(requiring defendant to satisfy the one-year deadline upon discovery of "'the

factual predicate for the relief sought.'" (quoting R. 3:22-12(a)(2)(b))).

Defendant failed to present any evidence indicating when he first learned of the

2015 ACLU report to explain the delay in seeking PCR. Defendant's PCR

petition was filed nearly one and one-half years after publication of the 2015

ACLU report.

      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 4 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).




4
  Strickland v. Washington,  466 U.S. 668 (1984), and State v. Fritz,  105 N.J. 42
(1987).
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                                        9
      Based on our review of the record, we are satisfied defendant failed to

demonstrate any deficiencies in the legal services rendered by his attorneys. The

2015 ACLU report bore no relevance to defendant's convictions because that

report addressed racial disparity in the enforcement of low-level offenses.

Defendant's crimes, leading to his convictions, were indictable offenses. Nor

did the 2015 ACLU report address police brutality or malicious prosecution by

law enforcement. Similarly, our review of the plea colloquy reveals defendant's

guilty plea was voluntary and he was not coerced to accept the plea.

      Additionally, the PCR judge did not err in denying defendant's motion to

vacate his 2002 guilty plea. Defendant first sought to withdraw his plea nearly

eighteen years after that plea hearing. The prejudice to the State based on the

significant delay resulting from defendant's belated request to vacate his guilty

plea is self-evident.      See State v. Slater,  198 N.J. 145, 157-58 (1990)

(enumerating four factors trial courts should apply in reviewing motions to

withdraw a guilty plea, including whether withdrawal of the plea "would result

in unfair prejudice to the State . . . .").

      Because defendant's PCR petition was untimely and he failed to allege

facts sufficient to support a prima facie case of ineffective assistance of counsel,




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no evidentiary hearing was required. See State v. Preciose,  129 N.J. 451, 462

(1992).

      To the extent we have not addressed any of defendant's arguments, we

determine those arguments lack sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(2).

      Affirmed.




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