STATE OF NEW JERSEY VS. BYRON MUNEZ-RIVERA (05-02-0052, HUNTERDON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: November 20, 2020
• Docket: A-0321-19T4
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0321-19T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BYRON MUNEZ-RIVERA,

Defendant-Appellant. ________________________

Argued September 29, 2020 – Decided November 20, 2020

Before Judges Fasciale and Susswein.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 05-02- 0052.

William A. Proetta argued the cause for appellant (Proetta, Oliver & Fay, attorneys; William A. Proetta, on the brief).

Jeffrey L. Weinstein, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Michael J. Williams, Acting Hunterdon County Prosecutor, attorney; Jeffrey L. Weinstein, of counsel and on the briefs). PER CURIAM

Defendant, Byron Munez Rivera, appeals from the August 16, 2019 order

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

hearing.1 He contends his trial counsel rendered ineffective assistance by

misinforming him of the immigration consequences of his guilty plea. Judge

Angela F. Borkowski denied defendant's petition both as time-barred under Rule

3:22-12 and on the merits, finding defendant failed to establish either prong of

the two-pronged test established in Strickland v. Washington.2 After carefully

reviewing the record in view of the governing legal principles, we affirm

substantially for the reasons set forth in Judge Borkowski's thorough twenty -

eight page decision.

In 2005, defendant pled guilty to the third-degree crime of uttering a

document that falsely purports to be driver's license, N.J.S.A. 2C:21-2.1(c). In

accordance with the plea agreement, the State dismissed a second-degree charge

for unlawful use of personal identifying information of another, N.J.S.A. 2C:21 -

1 Although the PCR court did not grant an evidentiary hearing on the merits of defendant's ineffective assistance claim, the court at oral argument heard testimony from defendant with respect to his argument that there was excusable neglect for filing the PCR petition beyond the five-year time limit prescribed in Rule 3:22-12. 2 466 U.S. 668 (1984). A-0321-19T4 2 17.2. Defendant was sentenced to a two-year period of probation. Defendant

filed his PCR petition approximately fourteen years after the sentence was

imposed and twelve years after he completed probation.

Defendant raises the following issues for our consideration:

POINT I

THE TRIAL COURT ERRED BY NOT RELAXING THE FIVE-YEAR TIME LIMIT FOR POST-CONVICTION RELIEF APPLICATIONS.

A. THE TRIAL COURT ERRED BY NOT RELAXING THE FIVE-YEAR TIME LIMIT FOR PCR PETITIONS BECAUSE MR. RIVERA SHOWED EXCUSABLE NEGLECT.

I. THE TRIAL COURT ERRED BY FINDING THAT MR. RIVERA'S RELIANCE ON INACCURATE IMMIGRATION ADVICE DOES NOT CONSTITUTE EXCUSABLE NEGLECT.

B. THE TRIAL COURT ERRED BY NOT RELAXING THE FIVE-YEAR TIME LIMIT BECAUSE MR. RIVERA SUFFERED AN INJUSTICE.

C. THE TRIAL COURT ERRED BY NOT CONSIDERING THE RECENT CASE OF STATE V. PATEL WHEN DECIDING WHETHER TO RELAX THE TIME LIMIT.

A-0321-19T4 3 POINT II

THE TRIAL COURT ERRED BY FINDING THAT MR. RIVERA DID NOT SHOW A PRIMA FACIE CASE THAT HIS COUNSEL WAS INEFFECTIVE. A. THE TRIAL COURT ERRED BY NOT FINDING THAT MR. RIVERA'S COUNSEL WAS INEFFECTIVE BY FAILING TO PROPERLY INFORM HIM ABOUT THE IMMIGRATION CONSEQUENCES OF HIS PLEA.

B. MR. RIVERA WOULD HAVE REJECTED THE PLEA IF HE HAD KNOWN ABOUT THE IMMIGRATION CONSEQUENCES.

C. MR. MONTEIRO WAS INEFFECTIVE BECAUSE HE FAILED TO ADVISE MR. RIVERA ABOUT THE PRETRIAL INTERVENTION PROGRAM. POINT III

THE TRIAL COURT ERRED BY DENYING MR. RIVERA AN EVIDENTIARY HEARING. POINT IV

THE TRIAL COURT ERRED BY DENYING MR. RIVERA'S REQUEST TO WITHDRAW HIS GUILTY PLEA.

I.

Because we affirm for the reasons explained in Judge Borkowski's

thoughtful and thorough written opinion, we need not re-address defendant's

A-0321-19T4 4 arguments at length. We first consider whether defendant's petition is time -

barred.

A petitioner seeking PCR must file a petition within five years of the

judgment of conviction—that is, 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). A

first PCR petition filed outside of this time limit may be considered only where

the defendant (1) alleges sufficient facts to support a claim of excusable neglect,

and (2) demonstrates a reasonable probability that if said factual allegations

were true, enforcement of the time bar would result in a fundamental injustice.

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

Judge Borkowski made detailed findings with respect to the timeline of

events. She highlighted that defendant acknowledged in his testimony that he

was aware of his ability to file a PCR petition in 2014. Judge Borkowski found

that he nonetheless continued to sit on his rights for another four -and-one-half

years. Although defendant offered reasons for some portions of the fourteen-

year delay between the imposition of sentence and filing a petition for PCR, he

failed to explain significant periods of inactivity. For example, once he

discovered his initial PCR counsel failed to properly file a petition in 2017,

A-0321-19T4 5 another year-and-one-half passed before the petition was filed by a different

attorney.

Judge Borkowski further found that the State was incurably prejudiced by

the protracted delay in filing the PCR petition because the prosecutor had

destroyed its case file in accordance with a ten-year records retention policy.

We agree with Judge Borkowski's observation that the filing deadline prescribed

in Rule 3:22-12 serves to prevent a defendant from claiming constitutional errors

after the State has lost the ability to respond.

We add that Judge Borkowski properly rejected defendant's argument that

the New Jersey Supreme Court's recent decision in State v. Patel, 232 N.J. 424

(2019), authorizes a relaxation of the five-year time limit for filing a PCR

petition. That case is inapposite. The Court in Patel held that a municipal court

defendant who was not advised of his right to counsel before accepting a plea

offer was presumptively prejudiced, and that such prejudice sufficed to warrant

relief under State v. Laurick, 120 N.J. 1 (1990), even after the five-year time

limit had expired pursuant to Rule 7:10-2. 232 N.J. at 448–49. The Patel Court

explicitly limited its holding to Laurick applications under Rule 7:10-2(b)(2),

and noted that the deadline for filing other post-conviction relief petitions under

Rule 3:22-12 was not affected. Id. at 447.

A-0321-19T4 6 II.

Judge Borkowski ruled that even if defendant's petition were not time-

barred, he failed to establish a prima facie case of ineffective assistance to

warrant an evidentiary hearing. We agree.

PCR serves the same function as a federal writ of habeas corpus. State v.

Preciose, 129 N.J. 451, 459 (1992). Both the Sixth Amendment of the United

States Constitution and Article 1, paragraph 10 of the State Constitution

guarantee the right to effective assistance of counsel at all stages of criminal

proceedings. Strickland, 466 U.S. at 686 (1984) (citing McMann v. Richardson,

397 U.S. 759, 771 n.14 (1970)); State v. Fritz, 105 N.J. 42, 58 (1987). In Fritz,

our Supreme Court adopted the two-part test articulated in Strickland in

determining whether a defendant has received ineffective assistance of counsel.

Fritz, 105 N.J. at 58. Under Strickland, in order to demonstrate ineffectiveness

of counsel, "[f]irst, the defendant must show that counsel's performance was

deficient . . . . Second, the defendant must show that the deficient performance

prejudiced the defense." Strickland, 466 U.S. at 687.

In Padilla v. Kentucky, the United States Supreme Court held that a

petitioner may meet the first Strickland prong by showing that his attorney made

misrepresentations regarding potential immigration consequences flowing from

A-0321-19T4 7 a guilty plea, whether made through commission or omission. 559 U.S. at 369,

374. In State v. Gaitan, 209 N.J. 339 (2012), our Supreme Court held that "in

applying both federal and state law, . . . Padilla created a 'new rule' and, for that

reason, the level of attorney competence has no application to guilty pleas

entered prior to March 31, 2010, the day the decision in Padilla was announced."

See also State v. Barros, 425 N.J. Super. 329, 333 (App. Div. 2012) (denying

PCR relief to a petitioner seeking relief from his 2008 guilty plea, claiming

ineffective assistance of counsel pursuant to the new rule announced in Padilla).

In this instance, defendant entered his guilty plea seven years before Padilla was

decided.

The second prong of the Strickland test requires the defendant to show

"that counsel's errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable." Strickland, 466 U.S. at 687. Counsel's errors

must create a "reasonable probability" that the outcome of the proceedings

would have been different than if counsel had not made the errors. Id. at 694.

This assessment is necessarily fact-specific to the context in which the

alleged errors occurred. For example, when, as in this case, a defendant seeks

"[t]o set aside a guilty plea based on ineffective assistance of counsel, a

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

A-0321-19T4 8 counsel's errors, [the defendant] would not have pled guilty and would have

insisted on going to trial.'" State v. Nunez-Valdez, 200 N.J. 129, 139 (2009)

(quoting State v. DiFrisco, 137 N.J. 434, 457 (1994) (alterations in original)).

Short of obtaining immediate relief, a defendant may prove that an

evidentiary hearing is warranted to develop the factual record in connection with

an ineffective assistance claim. Preciose, 129 N.J. at 462–63. The PCR court

should grant an evidentiary hearing only when (1) a defendant is able to prove

a prima facie case of ineffective assistance of counsel, (2) there are material

issues of disputed fact that must be resolved with evidence outside of the record,

and (3) the hearing is necessary to resolve the claims for relief. Id. at 462; R.

3:22-10(b). To meet the burden of proving a prima facie case, a defendant must

show a reasonable likelihood of success under the Strickland test. Id. at 463.

Judge Borkowski highlighted that defendant has not certified as to his

innocence. Furthermore, the record supports her conclusion that defendant

offered no probative evidence except post-hoc statements and bald assertions in

support of his claim that his interest in avoiding deportation was the

determinative factor in accepting the plea agreement and pleading guilty to the

reduced charge. We thus agree with Judge Borkowski's conclusion that

defendant failed to demonstrate that it would have been rational for him to reject

A-0321-19T4 9 the highly favorable plea offer tendered by the State. That plea bargain resulted

in the dismissal of a second-degree crime that carries a presumption of

imprisonment under N.J.S.A. 2C:44-1(d). As defendant has yet to suggest a

viable trial strategy, we see no reason to disturb the PCR court's conclusion that

it would have been irrational for defendant to reject the highly favorable plea

offer that allowed him to avoid the virtual certainty of a state prison sentence.

Even were we to accept that defendant's principal concern was to avoid

deportation, rejecting the plea offer would not have advanced that goal, given

the lack of a viable trial defense and the likelihood of a conviction by jury

verdict. Accordingly, we see no reason to disturb Judge Borkowski's finding

that petitioner failed to show a reasonable possibility that he would have rejected

the plea offer and elected to go to trial, but for his trial counsel's alleged error.

Nunez-Valdez, 200 N.J. at 138–139.

Similarly, we agree with Judge Borkowski that counsel was not ineffective

for failing to apply for pretrial intervention (PTI). Judge Borkowski found it to

be "mere speculation that the petitioner would have been accepted into PTI[,]"

especially given that defendant was charged with a second-degree crime that

invokes a presumption against admission to PTI. See State v. Nwobu, 139 N.J.

236, 252 (1995) (noting that an applicant facing a presumption against PTI must

A-0321-19T4 10 demonstrate “compelling reasons” or "something extraordinary or unusual," and

not merely that he "is a first time offender and has admitted or accepted

responsibility for the crime").

To the extent we have not addressed them, any additional arguments

raised by defendant lack sufficient merit to warrant discussion in this opinion.

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

Affirmed.

A-0321-19T4 11