STATE OF NEW JERSEY v. MARIO REYES (09-03-0485, HUDSON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 11, 2022
• Docket: A-2446-19
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2446-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARIO REYES,

Defendant-Appellant. _______________________

Submitted September 12, 2022 – Decided October 11, 2022

Before Judges Mawla and Marczyk.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-03-0485.

Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief).

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Colleen Kristan Signorelli, Assistant Prosecutor, on the brief).

PER CURIAM Defendant Mario Reyes appeals from an October 22, 2019 order denying

his petition for post-conviction relief (PCR) without an evidentiary hearing. We

affirm.

I.

We derive the following from the record. On November 8, 2008,

defendant was at a club with his girlfriend when someone told him one of his

friends had been in a fight. He saw his friend had bruises and blood on his face,

and he gave him his shirt. He then saw someone strike a second friend in the

head with a vase. He assisted the second friend into a car so he could seek

medical attention. Defendant then saw yet another friend lying on the ground

in the parking lot being assaulted by several men. Defendant asserts he

attempted to intervene, but the men assaulting his friend came towards him. At

that point, he pulled out a knife and stabbed one of the men.

Defendant was indicted for second-degree aggravated assault, N.J.S.A.

2C:12-1(b)(1); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-

5(d); and second-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(d). Defendant entered a plea of guilty to second-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(1). The State agreed to dismiss the

remaining charges and recommended defendant be sentenced as a third-degree

A-2446-19 2 offender to three years in state prison. On December 11, 2009, defendant was

sentenced to three years in prison.

Defendant admitted he stabbed the victim with a knife and acknowledged

during his plea colloquy he knew stabbing someone with a knife could cause

serious bodily injury. Defendant further stated at his plea hearing that he

understood that by pleading guilty he was going to be deported. The Department

of Homeland Security and Immigration and Customs Enforcement subsequently

deported defendant to El Salvador in August 2011, after serving his custodial

sentence. He reentered the United States without permission sometime in 2012.

In October 2017, defendant was indicted on one count of reentry of a remove d

alien, 8 U.S.C. § 1326. A federal court subsequently dismissed that indictment

in July 2018. The Department of Homeland Security subsequently reinstituted

proceedings against defendant and ultimately deported him again. Defendant

filed a PCR petition on May 7, 2019, and the petition was denied by an order

dated October 22, 2019. This appeal followed.

II.

Defendant raises the following points on appeal:

POINT I

THE [PCR] COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR [PCR] WITHOUT

A-2446-19 3 AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS, AND PETITIONS FOR [PCR].

B. THE PCR COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING TO SHOW THAT HE RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT II

THE COURT MISAPPLIED ITS DISCRETION IN APPLYING R. 3:22-12, AS A PROCEDURAL BAR AGAINST THE DEFENDANT'S FILING FOR [PCR].

Defendant argues the PCR court erred in denying him a hearing because

his plea counsel did not properly advise him regarding the law of self-defense

and told defendant self-defense was not available as a defense under New Jersey

law. Defendant further submits the factual basis for his plea was insufficient for

second-degree aggravated assault because he expressed to the judge he did not

intend to inflict serious bodily injury.

The State counters the PCR petition is time-barred, and defendant did not

demonstrate excusable neglect or a fundamental injustice to warrant relaxing the

A-2446-19 4 rule. The State further argues the PCR court properly denied defendant's PCR

petition because he did not establish a prima facie case of ineffective assistance

of counsel. Although defendant argues the trial court never advised him about

the five-year time bar to file a PCR petition, the State notes defendant failed to

provide a transcript of the sentencing hearing or a certification from defendant

indicating he was unaware of the five-year time bar. The State also notes

defendant did not timely file his PCR when he reentered the United States for

fear he would once again be deported, which is not a proper excuse for the late

filing of the PCR.

The State contends defendant's arguments regarding ineffective assistance

of counsel based on the lack of a proper investigation lacks merit because there

is no indication what such investigation would have revealed, and defendant did

not provide affidavits from any alleged witnesses. The State argues plea counsel

had no duty to explain the difference between a second- and third-degree offense

and the different deportation consequences. Instead, the only requirement was

that plea counsel not provide false or inaccurate information regarding the

charges to which defendant pled. The State further asserts defendant was denied

asylum because the aggravated assault was "a particularly serious crime," not

because it was a conviction for a second-degree offense.

A-2446-19 5 The State argues defendant was well aware of the immigration

consequences of his second-degree aggravated assault plea. The State notes that

while the PCR application sets forth facts that could potentially support a claim

of self-defense or defense of others, defendant's version of the facts has been

known to him since the incident, and he has not provided a sufficient reason

explaining the nine-and-a-half-year delay in bringing the PCR.

III.

Where, as here, a PCR judge does not hold an evidentiary hearing, we

"conduct a de novo review of both the factual findings and legal conclusions of

the PCR court." State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016)

(quoting State v. Harris, 181 N.J. 391, 421 (2004)). The record here establishes

defendant's PCR petition is time-barred and lacks substantive merit.

A.

Rule 3:22-12(a)(1)(A) precludes PCR petitions filed more than five years

after entry of a judgment of conviction unless the delay 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[.]" Our Supreme Court has stated "[t]he time

bar should be relaxed only 'under exceptional circumstances' because '[a]s time

A-2446-19 6 passes, justice becomes more elusive and the necessity for preserving finality

and certainty of judgments increases.'" State v. Goodwin, 173 N.J. 583, 594

(2002) (second alteration in original) (quoting State v. Afanador, 151 N.J. 41,

52 (1997)). We have held that when a first PCR petition is filed more than five

years after the judgment of conviction, the PCR court should examine the

timeliness of the petition, and defendant must submit competent evidence to

satisfy the standards for relaxing the rule's time restriction. State v. Brown, 455

N.J. Super. 460, 470 (App. Div. 2018).

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). To determine whether excusable neglect

is present, 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." Ibid.

(quoting Afanador, 151 N.J. at 52).

Defendant's claims are clearly time-barred. Defendant's judgment of

conviction was entered on December 11, 2009. Pursuant to Rule 3:22-12, he

had until December 11, 2014, to file his PCR petition. Defendant filed his

petition on May 7, 2019—well over four years too late. Defendant asserts the

A-2446-19 7 trial court did not inform him of the five-year time bar, but he failed to provide

the sentencing transcript, and his certification does not reflect he was unaware

of the time bar. Moreover, defendant returned to the United States in 2012, well

within the five-year time limitation to file a PCR petition. Defendant's

indication in his PCR application was that he was concerned about alerting

government officials about his presence in the United States and that he was

ignorant of the law. Those arguments are not persuasive. Otherwise, an

individual in defendant's position could wait to file a PCR until he was again

indicted for reentry. This would, in essence, extend the time to file a PCR

petition indefinitely and make it optional, unless defendant faced a new charge

that jeopardized his immigration status.

The five-year time bar was not designed to give defendant discretion as to

when to file a PCR petition based on whether or not deportation proceedings or

other charges were instituted against him. The purpose of the PCR five-year

time bar "is to encourage defendants reasonably believing they have grounds for

[PCR] to bring their claims swiftly and discourages them 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). It appears defendant would have

never brought a PCR application if federal officials had not indicted him again.

A-2446-19 8 Defendant's conduct does not establish excusable neglect. Lastly, his ignorance

of the law is not persuasive because we have previously noted, "[i]gnorance of

the law and rules of court does not qualify as excusable neglect [under Rule

3:22-12(a)(1)(A)]." State v. Merola, 365 N.J. Super. 203, 218 (Law Div. 2002),

aff'd, 365 N.J. Super. 82 (App. Div. 2003).

Furthermore, although defendant claims his plea counsel incorrectly

advised he could not assert self-defense in the underlying matter, this does not

establish excusable neglect. "Defendant cannot assert excusable neglect simply

because he received inaccurate . . . advice from his defense counsel." State v.

Brewster, 429 N.J. Super. 387, 400 (App. Div. 2013) (citations omitted). "If

excusable neglect for late filing of a petition is equated with incorrect or

incomplete advice, long-convicted defendants might routinely claim they did

not learn about the deficiencies in counsel's advice on a variety of topics until

after the five-year limitation period had run." Ibid. Here, defendant was aware

of the facts surrounding this incident for well over nine years and, despite the

purported inaccurate advice, failed to take any action until well past the time

permitted. Under the totality of the circumstances, defendant has failed to

establish excusable neglect. Additionally, the remaining claims fail to establish

a fundamental injustice.

A-2446-19 9 B.

Defendant is unable to demonstrate how enforcement of the time bar

would result in a reasonable probability of fundamental injustice, as he did not

demonstrate a prima facie case of ineffective assistance of plea counsel. To

establish a claim of ineffective assistance of counsel, a defendant must satisfy a

two-part 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); accord State v. Fritz, 105

N.J. 42, 58 (1987) (adopting the Strickland test).

To set aside a guilty plea based on ineffective assistance of counsel, a

defendant must show "that there is a reasonable probability that, but for

counsel's errors, [the defendant] would not have pled guilty and would have

insisted on going to trial." State v. DiFrisco, 137 N.J. 434, 457 (1994) (alteration

in original) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Moreover, a

defendant must make those showings by presenting more than "bald assertions"

that they were denied the effective assistance of counsel. Cummings, 321 N.J.

Super. at 170.

A-2446-19 10 We are not persuaded by defendant's argument his plea counsel erred in

failing to conduct a proper investigation. Because defendant did not provide

affidavits from any witnesses who would purportedly assist his defense, there is

no indication what knowledge, if any, these witnesses possess. There is also no

indication what the video surveillance may have shown, if there was in fact any

video surveillance at the facility, that counsel could have requested and secured.

Moreover, it is not clear how it would have assisted defendant's case if the

attorney had tested his shirt for blood. Defendant admitted he would have had

blood from one friend on his shirt and further admitted he stabbed the victim.

The presence of blood, or lack thereof, from either of these individuals would

not appear to have impacted the outcome of this matter, and there was no

explanation how that alleged deficient performance of plea counsel prejudiced

the defense.

Defendant's argument regarding plea counsel's failure to advise him he

only would be subject to deportation if he pled guilty to a second -degree

aggravated assault—as opposed to a third-degree offense—is equally

unavailing. Plea counsel is required to provide a non-citizen defendant

sufficient information regarding immigration consequences of a guilty plea. See

State v. Nuñez-Valdéz, 200 N.J. 129, 140, 143 (2009). "[W]rong or inaccurate

A-2446-19 11 advice from counsel about the immigration consequences, and specifically

deportation, that would result from entry of a guilty plea, present[s] ineffective

assistance of counsel." State v. Gaitan, 209 N.J. 339, 361 (2012). Nuñez-Valdéz

was the applicable law at the time of defendant's plea. 1 The Nuñez-Valdéz Court

held there may be ineffective assistance of counsel where the advice given to a

defendant regarding the removal consequences of a guilty plea is false, or

inaccurate and affirmatively misleading, such as where counsel tells a defendant

there will be no immigration consequences when pleading to an offense that is

indeed presumptively deportable. Gaitan, 209 N.J. at 381; Nuñez-Valdéz, 200

N.J. at 140-43.

Here, there is no such allegation. Defendant was aware of the deportation

consequences of his plea. Defendant admitted during the plea colloquy he

understood he would be deported based on the charge. Defendant asserts plea

counsel essentially was obligated to discuss other plea scenarios when there is

no indication there were other plea options available. Nuñez-Valdéz provides

that counsel must inform defendant of the removal consequences of a guilty plea

1 See Gaitan, 209 N.J. at 373-74, holding the Padilla v. Kentucky standard does not apply retroactively. 559 U.S. 356, 368-69 (2010) (stating counsel has an affirmative duty to correctly advise a defendant of the risk of deportation where the terms of the relevant immigration statute are "succinct, clear, and explicit in defining the removal consequence" of a plea). A-2446-19 12 that are not false, inaccurate, and affirmatively misleading. Ibid. Here, it is not

clear, as alleged, that even if defendant pled to a third-degree offense, it would

have impacted his deportation status, and he has not provided controlling

authority in this regard. Moreover, even if defendant would not have been

deported by pleading to a third-degree aggravated assault, it would not alter our

decision. If defendant had pled guilty to a first-degree crime, would plea counsel

have to explain the deportation implications of pleading to a second-, third-, and

fourth-degree offense when there is no indication in the record that such a plea

was even a possibility? What about the deportation options for completely

different charges? We determine under the facts in this case there was no such

obligation for plea counsel to advise defendant regarding every possible

hypothetical scenario, particularly when there is no indication pleading to a

lesser or different offense was even an option. That is not the standard.

Finally, we are satisfied defendant's argument with respect to his plea

colloquy is not persuasive. Defendant admitted he stabbed the victim. He then

indicated he did not intend to commit serious bodily injury when he stabbed the

victim. Defendant subsequently admitted he was in possession of a knife, cut

the victim with his knife, and understood that by stabbing someone in a fight,

he could have caused serious bodily injury. Defendant did not claim

A-2446-19 13 contemporaneously that he was innocent or that he was somehow acting in self-

defense. Defendant further reiterated that he wished to plead guilty and that he

was actually guilty of the charge.

In State v. D.D.M., the Court recognized that under some circumstances,

a court's sentence based on the acceptance of a guilty plea without a factual basis

may render the sentence illegal. 140 N.J. 83, 95 (1995) (citing State v. Mitchell,

126 N.J. 565 (1992)).2 However, in the context of a PCR application, a trial

court's failure to spell out the factual basis of a defendant's plea does not

necessarily constitute an improper acceptance of the guilty plea sufficient to

invalidate his conviction. The D.D.M. Court noted that as long as the guilty

plea is knowing and voluntary, "a court's failure to elicit a factual basis for the

plea is not necessarily of constitutional dimension," and a factual basis is only

constitutionally required when there is an indication of a contemporaneous claim

2 Compare D.D.M., 140 N.J. at 95 (denying PCR, holding "the trial court's failure to spell out the factual basis of defendant's plea did not, under the circumstances, constitute an improper acceptance of the guilty plea sufficient to invalidate his conviction and to render his sentence illegal"), with State v. Belton, 452 N.J. Super. 528, 540-41 (App. Div. 2017) (granting PCR where the defendant provided an inadequate factual basis coupled with a contemporaneous claim of innocence, consisting of a defense of others). A-2446-19 14 of innocence. D.D.M., 140 N.J. at 95. There was no contemporaneous claim of

innocence to warrant relief here.3

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

they lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Affirmed.

3 The Court in State v. Tate distinguished Mitchell. 220 N.J. 393, 407-08. However, in applying the requirement of an adequate factual basis, the Court emphasized that Tate, unlike Mitchell, involved a motion to vacate a plea before or shortly after sentencing, not a request for PCR. Id. at 407; see also State v. Campfield, 213 N.J. 218 (2013) (addressing necessity of factual basis on direct appeal). Also, in recognizing that "[c]hallenges to the sufficiency of the factual basis for a guilty plea" may be brought "on post-conviction relief," the Court in State v. Urbina, 221 N.J. 509, 528 (2015), cited D.D.M. As noted, D.D.M. restated the principle in Mitchell that "[a]s long as a guilty plea is knowing and voluntary, . . . a court's failure to elicit a factual basis for the plea is not necessarily of constitutional dimension and thus does not render illegal a sentence imposed without such a basis." 140 N.J. at 95 (quoting Mitchell, 126 N.J. at 577). We therefore presume this statement in Mitchell retains vitality.

A-2446-19 15