NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1952-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEVIN A. IBANEZ,
Defendant-Appellant. _______________________
Submitted February 6, 2024 – Decided February 29, 2024
Before Judges Whipple and Paganelli.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal 22-25.
Levow DWI Law, attorneys for appellant (Evan M. Levow, of counsel and on the brief, Keith George Napolitano, Jr., on the brief).
Mark Musella, Bergen County Prosecutor, attorney for respondent (K. Charles Deutsch, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Kevin Ibanez appeals from the denial of his petition for post -
conviction relief (PCR). We affirm.
In 2013, defendant pled guilty in Garfield Municipal Court to driving
while intoxicated (DWI), N.J.S.A. 39:4-50, and failure to report an accident,
N.J.S.A. 39:4-130. This was defendant's second DWI conviction. In exchange
for his guilty plea to the DWI charge, the State amended the charge of leaving
the scene of an accident involving property damage, N.J.S.A. 39:4-129(b), to
failure to report an accident, N.J.S.A. 39:4-130, and dismissed all other tickets.
In a plea hearing before the municipal court, defendant acknowledged he
understood he was pleading guilty to DWI; by pleading guilty, he was waiving
his right to trial (at which the State would have the burden of proving him
guilty); and, as defendant was a non-citizen, his guilty plea could impact his
efforts to become a United States citizen. Defendant also acknowledged he was
satisfied with his attorney's representation; his attorney answered all his
questions; and he had no questions of his attorney.
Defendant admitted he was operating a vehicle on August 29, 2013,
having consumed alcohol prior to driving. He stipulated that a breathalyzer test
result showed his blood alcohol content was 0.15. The municipal judge accepted
defendant's guilty plea and sentenced him as a second-time offender to: a fine
A-1952-22 2 of $607; $33 in court costs; a $50 VCCB assessment; a $75 Safe Neighborhood
assessment; a $200 DWI assessment; a two-year license suspension; thirty-days
of community service; and two days in the Bergen County Jail or the Intoxicated
Driver's Resource Center. On the failure to report charge, the municipal court
imposed a fine and court costs. The court specifically advised defendant of
potential penalties if defendant was to be convicted of a third or subsequent
DWI. Defendant did not appeal.
Eight years later, in June 2021, defendant was charged with a third DWI.
Because he then faced a mandatory 180-day jail sentence and an eight-year
license suspension, N.J.S.A. 39:4-50(a)(3), defendant filed a petition for PCR
from the 2013 DWI conviction in the municipal court, alleging he was unaware
of his constitutional rights when he pled guilty in 2013 and his plea to DWI
lacked a sufficient factual basis. Defendant asked the PCR court to vacate his
2013 guilty plea.
Defendant's petition was untimely pursuant to Rule 7:10-2(b)(2), but he
contended his sentence and plea were illegal, thus asserting his petition was
timely under Rule 7:10-2(b)(a), which provides an illegal sentence can be
corrected at any time. He also asserted excusable neglect, contending he was
A-1952-22 3 never advised he had defenses to the 2013 DWI charge and was not properly
advised of his constitutional rights.
The municipal judge denied defendant's petition. Defendant sought
review in the Law Division. For reasons placed on the record, the PCR court
determined defendant's petition was time-barred; there is no fundamental
injustice even if defendant's assertions were found to be true; and there is no
allegation of ineffective assistance of counsel and no claim of actual innocence.
The PCR judge denied the relief sought. This appeal followed.
On appeal defendant argues the following points.
I. THE FACTUAL BASIS ASCERTAINED FOR THE PLEA WAS INSUFFICIENT TO SUSTAIN A FINDING OF GUILT.
II. THE MOTION FOR [PCR] IS NOT TIME BARRED BECAUSE A SENTENCE WAS IMPOSED BASED ON AN INVALID AND ILLEGAL PLEA.
We reject these arguments. "[PCR] is New Jersey's analogue to the federal
writ of habeas corpus." State v. Pierre, 223 N.J. 560, 576 (2015) (quoting State
v. Preciose, 129 N.J. 451, 459 (1992)). PCR provides "a built-in 'safeguard that
ensures that a defendant was not unjustly convicted.'" State v. Nash, 212 N.J.
518, 540 (2013) (quoting State v. McQuaid, 147 N.J. 464, 482 (1997)).
A-1952-22 4 Rule 3:22-5 provides: "A prior adjudication upon the merits of any ground
for relief is conclusive whether made in the proceedings resulting in the
conviction or in any post-conviction proceeding brought pursuant to this rule or
prior to the adoption thereof, or in any appeal taken from such proceedings."
"[P]rior adjudication of an issue, including a decision on direct appeal, will
ordinarily bar a subsequent [PCR] hearing on the same basis." State v.
Afanador, 151 N.J. 41, 51 (1997). However, the rule applies "only if the issue
raised is identical or substantially equivalent to that adjudicated previously on
direct appeal." State v. Marshall (Marshall IV), 173 N.J. 343, 351 (2002)
(quoting State v. Marshall (Marshall III), 148 N.J. 89, 150 (1997)).
No petition for PCR can be filed more than five years after the date of
entry of the judgment of conviction being challenged, unless the petition
"alleges facts showing that the delay beyond said time was due to defendant's
excusable neglect" and shows that, if the facts are found to be true, "there is a
reasonable probability that . . . enforcement of the time bar would result in a
fundamental injustice." R. 3:22-12(a)(1). The rule serves the two important
interests of (1) preventing prejudice to the State's case as memories fade,
witnesses become unavailable, and evidence is lost; and (2) respecting the
finality of judgment so as to "allay the uncertainty associated with an unlimited
A-1952-22 5 possibility of relitigation" and prompt "those believing they have grounds for
[PCR] to bring their claims swiftly . . . ." State v. Mitchell, 126 N.J. 565, 575-
76 (1992).
Nevertheless, the five-year procedural bar is not absolute. State v. Milne,
178 N.J. 486, 492 (2004). It may be relaxed if the defendant shows the delay in
filing was due to excusable neglect or the interests of justice demand it. Ibid.
"In the context of [PCR], a court should relax Rule 3:22-12's bar only
under exceptional circumstances." Mitchell, 126 N.J. at 580. Factors to
consider in determining whether there has been injustice warranting a relaxation
of the procedural bar include (1) "the extent and cause of the delay," (2) "the
prejudice to the State," and (3) "the importance of the petitioner's claim."
Afanador, 151 N.J. at 52. "Absent compelling, extenuating circumstances, the
Free access — add to your briefcase to read the full text and ask questions with AI
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-1952-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEVIN A. IBANEZ,
Defendant-Appellant. _______________________
Submitted February 6, 2024 – Decided February 29, 2024
Before Judges Whipple and Paganelli.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal 22-25.
Levow DWI Law, attorneys for appellant (Evan M. Levow, of counsel and on the brief, Keith George Napolitano, Jr., on the brief).
Mark Musella, Bergen County Prosecutor, attorney for respondent (K. Charles Deutsch, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Kevin Ibanez appeals from the denial of his petition for post -
conviction relief (PCR). We affirm.
In 2013, defendant pled guilty in Garfield Municipal Court to driving
while intoxicated (DWI), N.J.S.A. 39:4-50, and failure to report an accident,
N.J.S.A. 39:4-130. This was defendant's second DWI conviction. In exchange
for his guilty plea to the DWI charge, the State amended the charge of leaving
the scene of an accident involving property damage, N.J.S.A. 39:4-129(b), to
failure to report an accident, N.J.S.A. 39:4-130, and dismissed all other tickets.
In a plea hearing before the municipal court, defendant acknowledged he
understood he was pleading guilty to DWI; by pleading guilty, he was waiving
his right to trial (at which the State would have the burden of proving him
guilty); and, as defendant was a non-citizen, his guilty plea could impact his
efforts to become a United States citizen. Defendant also acknowledged he was
satisfied with his attorney's representation; his attorney answered all his
questions; and he had no questions of his attorney.
Defendant admitted he was operating a vehicle on August 29, 2013,
having consumed alcohol prior to driving. He stipulated that a breathalyzer test
result showed his blood alcohol content was 0.15. The municipal judge accepted
defendant's guilty plea and sentenced him as a second-time offender to: a fine
A-1952-22 2 of $607; $33 in court costs; a $50 VCCB assessment; a $75 Safe Neighborhood
assessment; a $200 DWI assessment; a two-year license suspension; thirty-days
of community service; and two days in the Bergen County Jail or the Intoxicated
Driver's Resource Center. On the failure to report charge, the municipal court
imposed a fine and court costs. The court specifically advised defendant of
potential penalties if defendant was to be convicted of a third or subsequent
DWI. Defendant did not appeal.
Eight years later, in June 2021, defendant was charged with a third DWI.
Because he then faced a mandatory 180-day jail sentence and an eight-year
license suspension, N.J.S.A. 39:4-50(a)(3), defendant filed a petition for PCR
from the 2013 DWI conviction in the municipal court, alleging he was unaware
of his constitutional rights when he pled guilty in 2013 and his plea to DWI
lacked a sufficient factual basis. Defendant asked the PCR court to vacate his
2013 guilty plea.
Defendant's petition was untimely pursuant to Rule 7:10-2(b)(2), but he
contended his sentence and plea were illegal, thus asserting his petition was
timely under Rule 7:10-2(b)(a), which provides an illegal sentence can be
corrected at any time. He also asserted excusable neglect, contending he was
A-1952-22 3 never advised he had defenses to the 2013 DWI charge and was not properly
advised of his constitutional rights.
The municipal judge denied defendant's petition. Defendant sought
review in the Law Division. For reasons placed on the record, the PCR court
determined defendant's petition was time-barred; there is no fundamental
injustice even if defendant's assertions were found to be true; and there is no
allegation of ineffective assistance of counsel and no claim of actual innocence.
The PCR judge denied the relief sought. This appeal followed.
On appeal defendant argues the following points.
I. THE FACTUAL BASIS ASCERTAINED FOR THE PLEA WAS INSUFFICIENT TO SUSTAIN A FINDING OF GUILT.
II. THE MOTION FOR [PCR] IS NOT TIME BARRED BECAUSE A SENTENCE WAS IMPOSED BASED ON AN INVALID AND ILLEGAL PLEA.
We reject these arguments. "[PCR] is New Jersey's analogue to the federal
writ of habeas corpus." State v. Pierre, 223 N.J. 560, 576 (2015) (quoting State
v. Preciose, 129 N.J. 451, 459 (1992)). PCR provides "a built-in 'safeguard that
ensures that a defendant was not unjustly convicted.'" State v. Nash, 212 N.J.
518, 540 (2013) (quoting State v. McQuaid, 147 N.J. 464, 482 (1997)).
A-1952-22 4 Rule 3:22-5 provides: "A prior adjudication upon the merits of any ground
for relief is conclusive whether made in the proceedings resulting in the
conviction or in any post-conviction proceeding brought pursuant to this rule or
prior to the adoption thereof, or in any appeal taken from such proceedings."
"[P]rior adjudication of an issue, including a decision on direct appeal, will
ordinarily bar a subsequent [PCR] hearing on the same basis." State v.
Afanador, 151 N.J. 41, 51 (1997). However, the rule applies "only if the issue
raised is identical or substantially equivalent to that adjudicated previously on
direct appeal." State v. Marshall (Marshall IV), 173 N.J. 343, 351 (2002)
(quoting State v. Marshall (Marshall III), 148 N.J. 89, 150 (1997)).
No petition for PCR can be filed more than five years after the date of
entry of the judgment of conviction being challenged, unless the petition
"alleges facts showing that the delay beyond said time was due to defendant's
excusable neglect" and shows that, if the facts are found to be true, "there is a
reasonable probability that . . . enforcement of the time bar would result in a
fundamental injustice." R. 3:22-12(a)(1). The rule serves the two important
interests of (1) preventing prejudice to the State's case as memories fade,
witnesses become unavailable, and evidence is lost; and (2) respecting the
finality of judgment so as to "allay the uncertainty associated with an unlimited
A-1952-22 5 possibility of relitigation" and prompt "those believing they have grounds for
[PCR] to bring their claims swiftly . . . ." State v. Mitchell, 126 N.J. 565, 575-
76 (1992).
Nevertheless, the five-year procedural bar is not absolute. State v. Milne,
178 N.J. 486, 492 (2004). It may be relaxed if the defendant shows the delay in
filing was due to excusable neglect or the interests of justice demand it. Ibid.
"In the context of [PCR], a court should relax Rule 3:22-12's bar only
under exceptional circumstances." Mitchell, 126 N.J. at 580. Factors to
consider in determining whether there has been injustice warranting a relaxation
of the procedural bar include (1) "the extent and cause of the delay," (2) "the
prejudice to the State," and (3) "the importance of the petitioner's claim."
Afanador, 151 N.J. at 52. "Absent compelling, extenuating circumstances, the
burden to justify filing a petition after the five-year period will increase with the
extent of the delay." Ibid. To meet the burden, a petition must include "more
than a bare allegation." State v. Goodwin, 173 N.J. 583, 594 (2002). "The
petition itself must allege the facts relied on to support the claim." Mitchell,
126 N.J. at 577.
Defendant's PCR petition was filed out of time. Defendant filed his
petition on March 31, 2022, well past the five-year deadline to address his 2013
A-1952-22 6 guilty plea and conviction for DWI and failure to report an accident. Defendant
demonstrated no excusable neglect which would justify relaxing the time bar.
Moreover, defendant's assertion that his plea and resulting sentence were
illegal finds no support in the record. Defendant's answers during the plea
hearing belie any assertions he was inadequately informed of his rights or was
unaware of the consequences, as outlined by the PCR judge in his findings.
Defendant made no contemporaneous claim of innocence when he pled guilty
and does not do so now. Post-sentencing, an insufficient factual basis is no
longer enough to permit the withdrawal of a guilty plea; rather, the defendant
must establish the insufficiency raises some constitutional concern. Mitchell,
To the extent we have not addressed defendant's remaining arguments, we
are satisfied they are without sufficient merit to warrant further discussion in a
written opinion. R. 2:11-3(e)(2).
Affirmed.
A-1952-22 7