NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2351-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FRANKIE N. GONZALES,
Defendant-Appellant. ___________________________
Submitted October 23, 2024 – Decided December 2, 2024
Before Judges Currier and Paganelli.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 13-10-1273.
Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
Yolanda Ciccone, Middlesex County Prosecutor, attorney for respondent (David M. Liston, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant, Frankie Gonzales, appeals from the October 25, 2022 order
denying his first petition for post-conviction relief (PCR). He also appeals from
the February 10, 2023 order denying his motion for reconsideration of the
October order. We affirm.
Following a jury trial:
[d]efendant was convicted of fourteen crimes . . . : three counts of first-degree carjacking, N.J.S.A. 2C:15- 2(a)(2) to (4); second-degree kidnapping, N.J.S.A. 2C:13-1(b)(1); third-degree criminal restraint, N.J.S.A. 2C:13-2(a); two counts of first-degree robbery, N.J.S.A. 2C:15-1(a)(2) to (3); second-degree eluding, N.J.S.A. 2C:29-2(b); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2); two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3(a) to (b); second- degree burglary, N.J.S.A. 2C:18-2(a)(1); third-degree theft of a motor vehicle, N.J.S.A. 2C:20-3(a); and fourth-degree theft by unlawful taking, N.J.S.A. 2C:20- 3(a).
[State v. Gonzales, No. A-1869-16 (App. Div. Apr. 4, 2019) (slip op. at 1-2).]
An amended judgment of conviction was entered on March 23, 2015. Defendant
filed a direct appeal arguing "that evidentiary errors, prosecutorial misconduct
and an excessive sentence require[d] reversal." Id. at 1. We affirmed. 1 Ibid.
1 The New Jersey Supreme Court denied certification, 240 N.J. 20 (2019). A-2351-22 2 Defendant filed a petition for PCR. In a written opinion, the PCR judge
found defendant "was sentenced on February 26, 2015" and "[o]n March 25,
2015, [defendant's] judgment of conviction was amended." He also found
defendant's direct appeal was decided on April 4, 2019. In addition, the judge
found defendant did not "file for PCR until June 22, 2021; six years and three
months [from the date of sentencing], or six years and two months" from the
date of the amended judgment of conviction. Therefore, applying Rule 3:22-
12(a)(1), which provides a PCR petition "shall be filed . . . no more than [five]
years after the date of entry . . . of the judgment of conviction that [wa]s being
challenged," the judge concluded defendant's petition was "out of time."
The judge considered Rule 3:22-12(a)(1)(A), which allows a filing beyond
the five-year period if the petition "allege[d] facts showing that the delay beyond
said time was due to defendant's excusable neglect and that there [wa]s 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."
However, the judge concluded that defendant's proffered reason for
excusable neglect—his appeal was pending—was unavailing because
defendant's "direct appeal of his 2015 conviction did not toll the requirement
that he file his PCR application within the required timeframe," citing State v.
A-2351-22 3 Dillard, 208 N.J. Super. 722, 727 (App. Div. 1986). Further, the judge
concluded there was "[in]sufficient proof of a 'fundamental injustice,'" citing
Rule 3:22-12(a)(1)(A). The judge entered the October order denying PCR.
Defendant filed a motion for reconsideration. Defendant contended "that
oral argument was required on his initial PCR application" and "that the [judge]
erred in finding no excusable neglect in order to toll the five-year bar."
In a written opinion, the PCR court noted "there [wa]s a strong
presumption in favor of oral argument in connection with an initial petition for"
PCR, citing State v. Parker, 212 N.J. 269, 283 (2012). Nonetheless, the court
stated the "decision to entertain oral argument on a PCR petition [wa]s
committed to 'the sound discretion of [PCR] court,'" citing State v. Mayron, 344
N.J. Super. 382, 387 (App. Div. 2001). Further, the court noted the exercise of
discretion involved:
several factors, including "the apparent merits and complexity of the issues . . . , whether argument of counsel [would] add to the written positions . . . , and in general, whether the goals and purposes of the [PCR] procedure are furthered by oral argument."
[(citation omitted) (quoting Parker, 212 N.J. at 282 (quoting Mayron, 344 N.J. Super. at 384)).]
As to the timeliness issue, the judge recited defendant's argument that:
A-2351-22 4 it [wa]s well recognized that defendant [wa]s barred from filing a claim in two different courts. Defendant had filed an appeal [which] was not decided until April 2019. The five-year statute of limitations . . . [wa]s tolled and does not begin until after April 2019, and thus, the initial filing of defendant's pro se petition for [PCR wa]s timely.
[(Third alteration in original).]
The judge concluded oral argument was unnecessary on the initial petition
because its "determination was based upon rules and case law." Thus, "argument
of counsel would [not] add to the written submission." Further, the "issue was
not considered to be complex, but . . . clearly addressed by the language of Rule
3:22-12(b)."
The judge, relying on Dillard, concluded:
Rule 3:22-12(b), states that the time limitations within the rule "shall not be relaxed, except as provided herein." It is well-established that the five-year period prescribed within paragraph (a)(1) is to commence when a judgment of conviction is entered and is neither stayed, nor tolled, by appellate or other review proceedings. . . . . There is no provision in the Rule which govern[s] postconviction filings that call for a tolling of the time to file when a direct appeal is pending.
On appeal, defendant argues:
THIS MATTER MUST BE REMANDED FOR ORAL ARGUMENT.
A-2351-22 5 IN THE ALTERNATIVE, THE PCR COURT ERRONEOUSLY RULED THAT [DEFENDANT]'S PETITION WAS TIME-BARRED BECAUSE ANY DELAY IN FILING THE PETITION WAS DUE TO DEFENDANT'S EXCUSABLE NEGLECT AND 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.
Defendant argues that a remand for oral argument is necessary because
"the trial court did not have a full understanding of [defendant]'s issues" as "PCR
counsel made only barebones statements about the claims in his pleadings,
presenting nothing more than a mere outline." Moreover, a remand for oral
argument would allow the PCR court "to consider other reasons for relaxing the
time-bar which could have been raised." The purported reasons included: (1)
"the COVID pandemic started just around the time that [defendant] would have
filed his petition" and PCR "counsel . . .
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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-2351-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FRANKIE N. GONZALES,
Defendant-Appellant. ___________________________
Submitted October 23, 2024 – Decided December 2, 2024
Before Judges Currier and Paganelli.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 13-10-1273.
Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
Yolanda Ciccone, Middlesex County Prosecutor, attorney for respondent (David M. Liston, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant, Frankie Gonzales, appeals from the October 25, 2022 order
denying his first petition for post-conviction relief (PCR). He also appeals from
the February 10, 2023 order denying his motion for reconsideration of the
October order. We affirm.
Following a jury trial:
[d]efendant was convicted of fourteen crimes . . . : three counts of first-degree carjacking, N.J.S.A. 2C:15- 2(a)(2) to (4); second-degree kidnapping, N.J.S.A. 2C:13-1(b)(1); third-degree criminal restraint, N.J.S.A. 2C:13-2(a); two counts of first-degree robbery, N.J.S.A. 2C:15-1(a)(2) to (3); second-degree eluding, N.J.S.A. 2C:29-2(b); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2); two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3(a) to (b); second- degree burglary, N.J.S.A. 2C:18-2(a)(1); third-degree theft of a motor vehicle, N.J.S.A. 2C:20-3(a); and fourth-degree theft by unlawful taking, N.J.S.A. 2C:20- 3(a).
[State v. Gonzales, No. A-1869-16 (App. Div. Apr. 4, 2019) (slip op. at 1-2).]
An amended judgment of conviction was entered on March 23, 2015. Defendant
filed a direct appeal arguing "that evidentiary errors, prosecutorial misconduct
and an excessive sentence require[d] reversal." Id. at 1. We affirmed. 1 Ibid.
1 The New Jersey Supreme Court denied certification, 240 N.J. 20 (2019). A-2351-22 2 Defendant filed a petition for PCR. In a written opinion, the PCR judge
found defendant "was sentenced on February 26, 2015" and "[o]n March 25,
2015, [defendant's] judgment of conviction was amended." He also found
defendant's direct appeal was decided on April 4, 2019. In addition, the judge
found defendant did not "file for PCR until June 22, 2021; six years and three
months [from the date of sentencing], or six years and two months" from the
date of the amended judgment of conviction. Therefore, applying Rule 3:22-
12(a)(1), which provides a PCR petition "shall be filed . . . no more than [five]
years after the date of entry . . . of the judgment of conviction that [wa]s being
challenged," the judge concluded defendant's petition was "out of time."
The judge considered Rule 3:22-12(a)(1)(A), which allows a filing beyond
the five-year period if the petition "allege[d] facts showing that the delay beyond
said time was due to defendant's excusable neglect and that there [wa]s 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."
However, the judge concluded that defendant's proffered reason for
excusable neglect—his appeal was pending—was unavailing because
defendant's "direct appeal of his 2015 conviction did not toll the requirement
that he file his PCR application within the required timeframe," citing State v.
A-2351-22 3 Dillard, 208 N.J. Super. 722, 727 (App. Div. 1986). Further, the judge
concluded there was "[in]sufficient proof of a 'fundamental injustice,'" citing
Rule 3:22-12(a)(1)(A). The judge entered the October order denying PCR.
Defendant filed a motion for reconsideration. Defendant contended "that
oral argument was required on his initial PCR application" and "that the [judge]
erred in finding no excusable neglect in order to toll the five-year bar."
In a written opinion, the PCR court noted "there [wa]s a strong
presumption in favor of oral argument in connection with an initial petition for"
PCR, citing State v. Parker, 212 N.J. 269, 283 (2012). Nonetheless, the court
stated the "decision to entertain oral argument on a PCR petition [wa]s
committed to 'the sound discretion of [PCR] court,'" citing State v. Mayron, 344
N.J. Super. 382, 387 (App. Div. 2001). Further, the court noted the exercise of
discretion involved:
several factors, including "the apparent merits and complexity of the issues . . . , whether argument of counsel [would] add to the written positions . . . , and in general, whether the goals and purposes of the [PCR] procedure are furthered by oral argument."
[(citation omitted) (quoting Parker, 212 N.J. at 282 (quoting Mayron, 344 N.J. Super. at 384)).]
As to the timeliness issue, the judge recited defendant's argument that:
A-2351-22 4 it [wa]s well recognized that defendant [wa]s barred from filing a claim in two different courts. Defendant had filed an appeal [which] was not decided until April 2019. The five-year statute of limitations . . . [wa]s tolled and does not begin until after April 2019, and thus, the initial filing of defendant's pro se petition for [PCR wa]s timely.
[(Third alteration in original).]
The judge concluded oral argument was unnecessary on the initial petition
because its "determination was based upon rules and case law." Thus, "argument
of counsel would [not] add to the written submission." Further, the "issue was
not considered to be complex, but . . . clearly addressed by the language of Rule
3:22-12(b)."
The judge, relying on Dillard, concluded:
Rule 3:22-12(b), states that the time limitations within the rule "shall not be relaxed, except as provided herein." It is well-established that the five-year period prescribed within paragraph (a)(1) is to commence when a judgment of conviction is entered and is neither stayed, nor tolled, by appellate or other review proceedings. . . . . There is no provision in the Rule which govern[s] postconviction filings that call for a tolling of the time to file when a direct appeal is pending.
On appeal, defendant argues:
THIS MATTER MUST BE REMANDED FOR ORAL ARGUMENT.
A-2351-22 5 IN THE ALTERNATIVE, THE PCR COURT ERRONEOUSLY RULED THAT [DEFENDANT]'S PETITION WAS TIME-BARRED BECAUSE ANY DELAY IN FILING THE PETITION WAS DUE TO DEFENDANT'S EXCUSABLE NEGLECT AND 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.
Defendant argues that a remand for oral argument is necessary because
"the trial court did not have a full understanding of [defendant]'s issues" as "PCR
counsel made only barebones statements about the claims in his pleadings,
presenting nothing more than a mere outline." Moreover, a remand for oral
argument would allow the PCR court "to consider other reasons for relaxing the
time-bar which could have been raised." The purported reasons included: (1)
"the COVID pandemic started just around the time that [defendant] would have
filed his petition" and PCR "counsel . . . might not have been able to adequately
communicate with" defendant or PCR "counsel may never have even talked to"
defendant. Moreover, "counsel could have argued the prima facie merits of
[defendant]'s petition, proving that a fundamental injustice would occur without
a hearing."
In the absence of a remand for oral argument, defendant argues that his
PCR petition should have been accepted because "his delay in filing his petition
A-2351-22 6 was due to excusable neglect and because there [wa]s a reasonable probability
that if [his] factual assertions were found to be true, enforcement of the time bar
would result in a fundamental injustice."
In contending his delay was caused by "excusable neglect," defendant
asserts that "his petition was less than one year late, and likely further delayed
due to the COVID pandemic" and "he could well have had trouble obtaining all
necessary supporting documents as he was incarcerated."
Moreover, he argues there would be a fundamental injustice because he
"raised colorable constitutional claims of ineffective assistance of counsel which
should not be short-circuited by an overly strict imposition of the time-bar."
Defendant contends trial counsel: (1) "spent almost no time with him and never
advised him about whether he should accept the [S]tate's plea offer or go to trial;
[and] had he been adequately advised, he would have accepted the plea offer";
(2) "conceded [defendant]'s guilt during trial"; (3) "failed to investigate"; (4)
"failed to present [defendant]'s defense"; (5) "failed to file a suppression
motion"; and (6) failed "to object to a crucial issue raised on appeal – that the
[S]tate in effect informed the jury that [defendant] had been released from
custody on the day of the offense – meant that it was reviewed under the more
stringent plain error standard."
A-2351-22 7 We review the legal conclusions of a PCR court de novo. State v. Harris,
181 N.J. 391, 419 (2004). Nonetheless, "[a]ppellate review is not limitless."
State v. Robinson, 200 N.J. 1, 19 (2009). "The jurisdiction of appellate courts
rightly is bounded by the proofs and objections critically explored on the record
before the trial court by the parties themselves." Ibid. It is well established that
we will not consider an argument which was not raised before the trial court.
See Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012). Thus, we
"decline to consider questions or issues not properly presented to the trial court
when an opportunity for such a presentation is available 'unless the questions so
raised on appeal go to the jurisdiction of the trial court or concern matters of
great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)
(quoting Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div.
1959)).
"[PCR] provide[s] a built-in 'safeguard that ensures that a defendant [is]
not unjustly convicted.'" State v. Nash, 212 N.J. 518, 540 (2013) (quoting State
v. McQuaid, 147 N.J. 464, 482 (1997)).
Under Rule 3:22-12(a)(1)(A), a first petition for PCR must be filed no
more than [five] years after the date of entry pursuant to Rule 3:21-5 of the judgment of conviction that is being challenged unless:
A-2351-22 8 (A) 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.
[(Emphasis added).]
"The concept of excusable neglect encompasses more than simply
providing a plausible explanation for a failure to file a timely PCR petition."
State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). Therefore, "[t]o
determine whether a defendant has asserted a sufficient basis for relaxing the
Rule's time restraints, we '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.'" Ibid.
(internal quotation marks omitted) (quoting State v. Afanador, 151 N.J. 41, 52
(1997)). "[A] misunderstanding of the meaning of [Rule 3:22-12] would not
constitute 'excusable neglect.'" State v. Dugan, 289 N.J. Super. 15, 22 (App.
Div. 1996).
"A fundamental injustice occurs 'when the judicial system has denied a
defendant with fair proceedings leading to a just outcome or when inadvertent
errors mistakenly impacted a determination of guilt or otherwise wrought a
A-2351-22 9 miscarriage of justice.'" State v. Hannah, 248 N.J. 148, 179 (2021) (internal
quotation marks omitted) (quoting Nash, 212 N.J. at 546). "To demonstrate a
fundamental injustice, a defendant must show 'that an error or violation played
a role in the determination of guilt.'" Ibid. (internal quotation marks omitted)
(quoting Nash, 212 N.J. at 547).
Defendant contends he establishes a fundamental injustice because he was
provided with ineffective assistance of trial counsel. To establish a claim of
ineffective assistance of counsel, a defendant must satisfy the two-prong
Strickland test: (1) "counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment,"
and (2) "the deficient performance prejudiced the defense." Strickland v.
Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42, 58 (1987)
(adopting the Strickland two-prong test in New Jersey).
Applying these well-established principles, we conclude defendant's
arguments are unavailing. First, we reiterate that our review is constrained to
the argument made to the PCR court. Before the PCR court, defendant argued
that the time for filing his petition was tolled pending his appeal . Therefore, he
argued his petition was timely, having been filed within five years of our opinion
concluding his appeal. However, it has long been established that "there is no
A-2351-22 10 provision for tolling in R[ule] 3:22-12 by reason of a direct appeal from the
conviction being available or actually having been filed." Dillard, 208 N.J.
Super. at 727. Therefore, defendant's argument to the PCR court was misguided.
We find no error in the PCR court's denial of the petition as untimely , having
not been filed within five years of the amended judgment of conviction .
Second, considering defendant's argument was clearly misguided, we
conclude the PCR court did not abuse its discretion by denying oral argument. 2
An abuse of discretion "arises when a decision is 'made without a rational
explanation, inexplicably departed from established policies, or rested on an
impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571
(2002) (quoting Achacoso-Sanchez v. Immigr. & Naturalization Servs., 779
F.2d 1260, 1265 (7th Cir. 1985)). The judge considered the relevant factors
under Parker, and determined oral argument would not further the purposes of
the petition. There was no abuse of discretion in that determination.
Third, defendant's misunderstanding regarding the effect of his appeal on
the PCR timeframes would not amount to excusable neglect. See Dugan, 289
N.J. Super. at 22. Moreover, even if we were to consider his appellate
2 We note the PCR court held oral argument on defendant's motion for reconsideration. A-2351-22 11 arguments—there was excusable neglect because his petition was "likely"
delayed due to the COVID-19 pandemic or he "could" have had trouble
obtaining documents because he was incarcerated—the arguments amount to
nothing more than conjecture. Indeed, defendant's certification does not
mention COVID-19 or his incarceration as reasons for his failure to timely file
his PCR petition.
Having concluded defendant's PCR petition was untimely, and that he
failed to establish excusable neglect, we need not reach his claims of
fundamental injustice.
Affirmed.
A-2351-22 12