NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1829-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LUIS LECAROS-DELGADO,
Defendant-Appellant. _________________________
Submitted December 4, 2018 – Decided April 10, 2019
Before Judges Rothstadt and Gilson.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 13- 2017.
Edward M. Janzekovich, attorney for appellant.
Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie D. Piderit, Assistant Prosecutor, on the brief).
PER CURIAM Defendant Luis Lecaros-Delgado appeals from a November 6, 2017 Law
Division order which denied his petition for post-conviction relief (PCR)
following a de novo review of a municipal court order denying the same relief.
We affirm.
Defendant's petition related to his two convictions for driving while
intoxicated (DWI), N.J.S.A. 39:4-50, on February 24, 2007 and March 9, 2007.
Defendant pled guilty to both charges without any recommendation by the State
as to sentencing at a hearing held in a municipal court on April 12, 2007.
Defendant was represented by counsel at the hearing, during which he admitted
his guilt and placed a factual basis for each offense on the record. During his
plea allocution, defendant confirmed that he reviewed and understood that he
could seek a stay of his sentencing while awaiting the Supreme Court's decision
in State v. Chun, 194 N.J. 54 (2008) and stated that he waived that right.
Defendant's sentencing immediately followed his plea, and although the
State recommended a suspended sentence subject to defendant's participation in
various programs and not driving while suspended, the court imposed separate
sentences on each offense, including one thirty-day jail sentence for the second
offense. During his sentence, the court advised defendant of the collateral
A-1829-17T4 2 consequences of his two pleas on a subsequent offenses, including the
imposition of six months in jail.
Defendant obtained new counsel and immediately filed an appeal to the
Law Division, seeking to modify his sentence. The trial court conducted a de
novo review of the sentence and imposed the same sentence on December 17,
2007.
Ten years later, after being charged with a third DWI offense in 2017,
defendant filed a petition for PCR in the municipal court, challenging his plea
counsel's performance in 2007. 1 On June 8, 2017, the municipal court denied
the petition. In its written decision, the municipal court found that defendant's
contentions regarding ineffective assistance of counsel (IAC) were belied by the
record of his 2007 plea, the petition was not "timely" under Rule 7:10-2(b)(2),
and "there were no 'exceptional circumstances' for the late filing . . . ."
Defendant appealed to the Law Division and on November 6, 2017, Judge
Robert J. Jones denied defendant's PCR petition, stating his reason in a six-page
written decision. Judge Jones described defendant's contentions of IAC as being
based upon plea counsel's failure to "take advantage of a January 2006 stay of
1 Neither party has supplied us with a copy of defendant's petition.
A-1829-17T4 3 all . . . DWI cases pending resolution of [Chun] . . . ." The judge also observed
that it was defendant's contention that he gave an inadequate factual basis to
support his pleas, which were not knowing and voluntary because he was not
advised of the consequences of his plea before pleading guilty.
The judge stated that defendant contended that he demonstrated excusable
neglect for not filing a timely petition because he "did not realize the problem"
until he consulted his current lawyer about his 2017 charges. Moreover, Judge
Jones observed that it was defendant's contention that the "ten-year gap between
the plea and" defendant's PCR petition established exceptional circumstances
because he received an illegal sentence.
Judge Jones concluded that defendant's petition was time barred as it
related to his IAC claim because defendant did not file any "affidavit or
certification" to support his brief's "conclusory, unsupported assertion" as to
why it took ten years to file the petition. The judge cited to applicable case law
and stated "ignorance of the right to [PCR], by itself, does not meet the standard
required by the court rule." Finally, the judge concluded that even if such
circumstances were established, the State would be prejudiced by the delay.
Turning to defendant's claim that his 2007 sentences were illegal, Judge
Jones relied on State v. Mitchell, 126 N.J. 565 (1992), and noted that without a
A-1829-17T4 4 statement from defendant asserting a "contemporaneous claim of innocence,"
and considering defendant's sworn statements admitting to the offenses at his
plea hearing, any argument that his plea was unsupported by a factual basis was
without merit. The judge found that there was no statement by defendant that
he did "not understand enough about the nature of the law as it applies to the
facts of this case to make a truly 'voluntary' decision on his own."
The judge also found that although his plea was "imperfect" because the
plea court advised defendant of the consequences of pleading guilty after his
plea rather than before, it did not give rise to a violation of "constitutional
dimension[s]" that would allow defendant to vacate the plea ten years after the
fact based upon a claim of illegal sentence. This appeal followed.
On appeal, defendant argues that his PCR petition was not time barred as
to his claim of IAC, and his plea to the two 2007 offenses resulted in an illegal
sentence because he did not enter a voluntary and knowing plea, and, in any
event, he did not testify to a sufficient factual basis for the charges to which he
pled guilty. Finally, he asserts that Judge Jones' finding that he did "not
dispute[] his guilt or provide[] a contemporaneous claim of innocence" was
incorrect.
A-1829-17T4 5 We are convinced that defendant's arguments are entirely without merit.
We accordingly affirm the denial of defendant's petition for PCR substantially
for the reasons stated by Judge Jones in his comprehensive written decision. We
add the following comments.
In an appeal from the Law Division's de novo review of the record from a
municipal court's decision, our review "is limited to determining whether there
is sufficient credible evidence present in the record to support the findings of
the Law Division judge, not the municipal court." State v. Clarksburg Inn, 375
N.J. Super. 624, 639 (App. Div. 2005) (citing State v. Johnson, 42 N.J. 146, 161-
62 (1964)). Unlike the Law Division, we do not independently assess the
evidence. State v. Locurto, 157 N.J. 463, 471 (1999). We review de novo the
Law Division's legal determinations or conclusions based upon the facts. State
v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010).
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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-1829-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LUIS LECAROS-DELGADO,
Defendant-Appellant. _________________________
Submitted December 4, 2018 – Decided April 10, 2019
Before Judges Rothstadt and Gilson.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 13- 2017.
Edward M. Janzekovich, attorney for appellant.
Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie D. Piderit, Assistant Prosecutor, on the brief).
PER CURIAM Defendant Luis Lecaros-Delgado appeals from a November 6, 2017 Law
Division order which denied his petition for post-conviction relief (PCR)
following a de novo review of a municipal court order denying the same relief.
We affirm.
Defendant's petition related to his two convictions for driving while
intoxicated (DWI), N.J.S.A. 39:4-50, on February 24, 2007 and March 9, 2007.
Defendant pled guilty to both charges without any recommendation by the State
as to sentencing at a hearing held in a municipal court on April 12, 2007.
Defendant was represented by counsel at the hearing, during which he admitted
his guilt and placed a factual basis for each offense on the record. During his
plea allocution, defendant confirmed that he reviewed and understood that he
could seek a stay of his sentencing while awaiting the Supreme Court's decision
in State v. Chun, 194 N.J. 54 (2008) and stated that he waived that right.
Defendant's sentencing immediately followed his plea, and although the
State recommended a suspended sentence subject to defendant's participation in
various programs and not driving while suspended, the court imposed separate
sentences on each offense, including one thirty-day jail sentence for the second
offense. During his sentence, the court advised defendant of the collateral
A-1829-17T4 2 consequences of his two pleas on a subsequent offenses, including the
imposition of six months in jail.
Defendant obtained new counsel and immediately filed an appeal to the
Law Division, seeking to modify his sentence. The trial court conducted a de
novo review of the sentence and imposed the same sentence on December 17,
2007.
Ten years later, after being charged with a third DWI offense in 2017,
defendant filed a petition for PCR in the municipal court, challenging his plea
counsel's performance in 2007. 1 On June 8, 2017, the municipal court denied
the petition. In its written decision, the municipal court found that defendant's
contentions regarding ineffective assistance of counsel (IAC) were belied by the
record of his 2007 plea, the petition was not "timely" under Rule 7:10-2(b)(2),
and "there were no 'exceptional circumstances' for the late filing . . . ."
Defendant appealed to the Law Division and on November 6, 2017, Judge
Robert J. Jones denied defendant's PCR petition, stating his reason in a six-page
written decision. Judge Jones described defendant's contentions of IAC as being
based upon plea counsel's failure to "take advantage of a January 2006 stay of
1 Neither party has supplied us with a copy of defendant's petition.
A-1829-17T4 3 all . . . DWI cases pending resolution of [Chun] . . . ." The judge also observed
that it was defendant's contention that he gave an inadequate factual basis to
support his pleas, which were not knowing and voluntary because he was not
advised of the consequences of his plea before pleading guilty.
The judge stated that defendant contended that he demonstrated excusable
neglect for not filing a timely petition because he "did not realize the problem"
until he consulted his current lawyer about his 2017 charges. Moreover, Judge
Jones observed that it was defendant's contention that the "ten-year gap between
the plea and" defendant's PCR petition established exceptional circumstances
because he received an illegal sentence.
Judge Jones concluded that defendant's petition was time barred as it
related to his IAC claim because defendant did not file any "affidavit or
certification" to support his brief's "conclusory, unsupported assertion" as to
why it took ten years to file the petition. The judge cited to applicable case law
and stated "ignorance of the right to [PCR], by itself, does not meet the standard
required by the court rule." Finally, the judge concluded that even if such
circumstances were established, the State would be prejudiced by the delay.
Turning to defendant's claim that his 2007 sentences were illegal, Judge
Jones relied on State v. Mitchell, 126 N.J. 565 (1992), and noted that without a
A-1829-17T4 4 statement from defendant asserting a "contemporaneous claim of innocence,"
and considering defendant's sworn statements admitting to the offenses at his
plea hearing, any argument that his plea was unsupported by a factual basis was
without merit. The judge found that there was no statement by defendant that
he did "not understand enough about the nature of the law as it applies to the
facts of this case to make a truly 'voluntary' decision on his own."
The judge also found that although his plea was "imperfect" because the
plea court advised defendant of the consequences of pleading guilty after his
plea rather than before, it did not give rise to a violation of "constitutional
dimension[s]" that would allow defendant to vacate the plea ten years after the
fact based upon a claim of illegal sentence. This appeal followed.
On appeal, defendant argues that his PCR petition was not time barred as
to his claim of IAC, and his plea to the two 2007 offenses resulted in an illegal
sentence because he did not enter a voluntary and knowing plea, and, in any
event, he did not testify to a sufficient factual basis for the charges to which he
pled guilty. Finally, he asserts that Judge Jones' finding that he did "not
dispute[] his guilt or provide[] a contemporaneous claim of innocence" was
incorrect.
A-1829-17T4 5 We are convinced that defendant's arguments are entirely without merit.
We accordingly affirm the denial of defendant's petition for PCR substantially
for the reasons stated by Judge Jones in his comprehensive written decision. We
add the following comments.
In an appeal from the Law Division's de novo review of the record from a
municipal court's decision, our review "is limited to determining whether there
is sufficient credible evidence present in the record to support the findings of
the Law Division judge, not the municipal court." State v. Clarksburg Inn, 375
N.J. Super. 624, 639 (App. Div. 2005) (citing State v. Johnson, 42 N.J. 146, 161-
62 (1964)). Unlike the Law Division, we do not independently assess the
evidence. State v. Locurto, 157 N.J. 463, 471 (1999). We review de novo the
Law Division's legal determinations or conclusions based upon the facts. State
v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010).
Claims of IAC or those relating to an illegal sentence are cognizable in
municipal court under Rule 7:10-2(c). A PCR petition from a municipal court's
conviction must be filed within the time period established by Rule 7:10-2(b).
Defendant recognizes that a claim of IAC must be filed within five years of a
conviction, but he argues that the judge erred by refusing to relax the five-year
time bar for PCR petitions. We do not agree.
A-1829-17T4 6 Rule 7:10-2 provides that a petition to correct an illegal sentence may be
filed at any time. R. 7:10-2(b)(1). However, a PCR petition based on any other
ground must be filed within five years after entry of the judgment of conviction.
R. 7:10-2(b)(2). The time bar may be relaxed only if the defendant shows that
the delay in filing is due to "excusable neglect." Ibid. Defendant has offered
no factual support to explain the delay.
In support of his contention that the petition should not be subject to the
five-year limitations period in Rule 7:10-2(b)(2), defendant relies upon State v.
Bringhurst, 401 N.J. Super. 421 (App. Div. 2008). Defendant's reliance upon
that case is misplaced.
In Bringhurst, we noted that a penalty for a second DWI conviction cannot
be imposed upon a defendant whose first DWI conviction was the result of a
plea entered without the advice of counsel. Bringhurst, 401 N.J. Super. at 427-
28 (citing State v. Laurick, 120 N.J. 1, 16 (1990)). We stated that relief from a
prior, uncounseled DWI conviction would not ordinarily be sought until a
second or subsequent conviction occurs. Id. at 433. We noted that, under the
circumstances, the interests of justice would not be served by automatically
applying the five-year time bar for PCR petitions. Ibid. We held, however, that
the trial court had correctly determined that the defendant had not established a
A-1829-17T4 7 basis to relax the time bar because the defendant had not shown he had a defense
to the DWI charge, or that the outcome would have been different if he had been
represented by counsel when he entered the plea. Id. at 434-37.
Here, defendant was represented by counsel in 2007 and has not offered
any factual support for his claim that counsel was ineffective or that the outcome
of the 2007 plea would have been different had counsel been effective.
Bringhurst therefore does not apply.
Even if Bringhurst applied, there is no basis for relaxing the time bar.
Defendant has not established a defense to the DWI charge he faced in 2007.
Furthermore, defendant has not established that he was not properly counseled
concerning the plea. See id. at 435 (finding the defendant's . . . petition [under
Laurick, 120 N.J. at 16 (1990) ("an uncounseled conviction without waiver of
the right to counsel is invalid for the purpose of increasing a defendant's loss of
liberty")] was deficient because he did not present evidence showing that if he
had representation, he would have had a defense to the DWI charge or, in all
likelihood, the result of the uncounseled DWI proceeding would have been
different).
Defendant has not demonstrated any entitlement to relief. Both
defendant's assertion that he established excusable neglect for relaxation of the
A-1829-17T4 8 time bar and his claim of IAC are totally unsupported by the record. While
defendant contends in his brief that on the day his petition was considered, he
was "present in court and prepared to testify regarding the[] issues to provide
further evidence on the record," his presence did not satisfy his burden.
The mere raising of a claim for PCR does not establish a prima facie claim
of IAC that would support granting defendant an evidentiary hearing. State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). PCR petitions must be
"accompanied by an affidavit or certification by defendant, or by others, setting
forth with particularity the facts that he wished to present." State v. Jones, 219
N.J. 298, 312 (2014). A "defendant must allege specific facts and evidence
supporting his allegations," State v. Porter, 216 N.J. 343, 355 (2013), and "must
do more than make bold assertions that he was denied the effective assistance
of counsel." Cummings, 321 N.J. Super. at 170. Here, although defendant's
brief was replete with allegations about what happened to him and what he
would have done had counsel not be ineffective as alleged, there is no factual
evidence to support any of his contentions.
Because defendant failed to allege any facts in support of his petition, it
does not meet the "excusable neglect" standard embedded in Rule 7:10-2(b)(2)
or the "exceptional circumstances" required for relaxation under Rule 1:2-2. In
A-1829-17T4 9 other words, he failed to "articulate[] facts that demonstrate a serious question
about his . . . guilt or the propriety of the sentence imposed and [that he was]
prepared to provide factual evidence to support it . . . ." Mitchell, 126 N.J. at
580.
Finally, we conclude that defendant's contention that his sentence was
illegal is without sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2). Suffice it to say, defendant's petition did not attack his sentence
as being "in excess of or otherwise not in accordance with the sentence
authorized by law," R. 7:10-2(c)(3), rather he claimed his plea should not have
been accepted because it was not voluntary and knowing. Again, without any
factual support there is no basis to his claim.
Affirmed.
A-1829-17T4 10