On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Union County, Indictment No. 95-05-0483.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 26, 2007
Before Judges Parrillo and Alvarez.
Defendant Pablo Oropesa appeals from an order of the Law Division denying his petition for post-conviction relief (PCR) and his motion for a new trial. We affirm.
Defendant is a Spanish-speaking Cuban-born foreign national who came to the United States in the Mariel boat lift. He has been in the country since the early 1980s, does not speak English, and has a history of psychiatric illness and hospitalization.
On May 18, 1995, defendant was charged in a Union County Indictment with second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(c); two counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a); and two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3(b). He pled guilty to the two counts of aggravated criminal sexual contact in exchange for the State's agreement to dismiss the remaining charges. At the time he entered his guilty plea on August 28, 1995, defendant admitted that on February 2, 1995, in Elizabeth, he had sexual contact with thirteen-year-old J.P., his girlfriend's daughter. While alone with J.P., defendant made the girl take off her slacks and panties, rubbed himself against her, and masturbated on her underwear in her presence. This happened again five days later, on February 7, 1995. On both occasions, defendant acted for his own sexual gratification.
As part of the plea agreement, the State recommended that defendant serve three-and-one-half years at the Adult Diagnostic and Treatment Center at Avenel or, if found not to be a compulsive repetitive sex offender, 180 days in county jail. At the time of plea, defendant was informed of the differing parole consequences of being sentenced to Avenel as opposed to prison; that if he were found to be a repetitive compulsive sex offender, then the new Megan's law, N.J.S.A. 2C:7-1 to -19, would apply to him and he would be required to register with law enforcement officials wherever he lives; that the information could be released to the public; and that "[t]here's no limitation as to how long that will go on." There was, however, no mention of the requirement of "community supervision for life." Nevertheless, defendant circled "yes" on the plea form, dated August 25, 1995, to the question asking him if he understood that he would be subject to a mandatory penalty of community supervision for life.*fn1
Having not qualified for Avenel, defendant was sentenced on December 15, 1995 to concurrent three-year probationary terms on the two counts of aggravated criminal sexual contact. He was credited 311 days for time already served, fines were assessed, and he was released that same day. This judgment of conviction, filed in January 1996, made no mention of the requirement of community supervision for life. That deficiency was remedied over four years later when a representative of the Union County Prosecutor's Office alerted the sentencing judge to the omission. As a result, an amended judgment of conviction was entered on May 25, 2000, including the "community supervision for life" condition.
On June 28, 2002, defendant filed a pro se PCR petition based on the victim's purported recantation. According to the defendant, J.P., then twenty-years-old, approached defendant's brother and claimed that her mother had forced her to accuse defendant of molestation. Since the mother had recently passed away, J.P. came to realize she had falsely accused defendant.
Defendant's attorney filed a supplemental PCR petition in March 2004,*fn2 alleging ineffective assistance of counsel because defendant was not informed of the immigration consequences of his plea, that he would be under community supervision for life, and that he had rights under the Vienna Convention on Consular Relations (VCCR). The supplemental petition also restated the original grounds for relief in defendant's pro se petition, namely the victim's purported retraction of her original accusation.
As to the claims of ineffective assistance of counsel concerning the VCCR and immigration consequences of the guilty plea, the PCR judge denied relief finding these particular claims time-barred, R. 3:22-12, because raised more than five years after the January 2, 1996 judgment of conviction, and no "excusable neglect" for the delay had been shown. The PCR judge also found, substantively, that these claims lacked merit.
On the other hand, the judge found that the remaining ineffective assistance of counsel claim was not time-barred since the judgment of conviction was amended in 2000 to include the "community supervision for life" condition now being challenged, and therefore this portion of defendant's PCR petition was well within the five-year time bar. Consequently, the judge held an evidentiary hearing on this as well as the remaining PCR claim based on the so-called newly discovered evidence of the recanting victim. On this score, the judge stated:
it seems to me we have only two things that we're discussing when we come back, we're discussing the PCR standards for the community supervision for life, would that have changed his plea, and the second thing we're discussing is did he meet the standards for a new trial based on the newly-discovered evidence of the recanting witness.
At the hearing, Donna Wrenn, the public defender who represented defendant in 1995, testified that she either had the plea form prepared or prepared the plea forms and had an interpreter go over them with defendant before the issue of competency came up in court. She had no recollection, however, whether or not she advised defendant about community supervision for life:
I know that the -- the question is circled in the plea forms. I don't know that any of us knew what that . . . meant. I know that -- I know that it was new. I know that defense attorneys, prosecutors, judges all were somewhat confused by -- by what that meant.
I have no specific memory of ever discussing community supervision for life with him. I don't know that I sat in the back room when the interpreter went over the plea forms.
I can tell you that now when I go over the plea forms with someone and have to go through all of that, if it's someone who speaks Spanish I make sure that I am there, and go through ...