June 11, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NEFTALI SORIANO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County,*fn1 Indictment No. 98-08-1153.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 23, 2008
Before Judges Sapp-Peterson and King.
Defendant, Neftali Soriano, appeals from the March 8, 2007 order denying his petition for post-conviction relief (PCR). We affirm.
On August 20, 1998, a grand jury indicted defendant along with co-defendant, Andrew R. Majkut, with second-degree burglary, N.J.S.A. 2C:18-2 (Count One); first-degree robbery, N.J.S.A. 2C:15-1 (Count Two); first-degree kidnapping, N.J.S.A. 2C:13-1(b) (Count Three); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (Count Four); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (Count Five); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (Count Six); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (Count Seven); and third-degree hindering one's own apprehension, N.J.S.A. 2C:29-3(b) (Count Eight). The charges stem from an incident that occurred during the early morning hours of July 4, 1998. According to the evidence presented at trial, defendant and his co-defendant broke into the home of then sixty-six-year-old June Lubinski, who was related to Majkut by marriage. Defendants assaulted her, demanded money, tied her up and then ransacked her home. Defendant testified at trial and acknowledged his involvement in the incident but denied that he assaulted the victim as she claimed he had done. During trial, the court dismissed the kidnapping charge.*fn2 The jury acquitted defendant of terroristic threats but convicted defendant of the remaining counts in the indictment.
On September 27, 1999, defendant was sentenced to concurrent custodial sentences of seven years for burglary, four years for aggravated assault, eighteen months for unlawful possession of a weapon, and four years for possession of a weapon for an unlawful purpose. On the first-degree robbery count, the court imposed a fifteen-year custodial sentence to be served consecutive to the other sentences. We upheld defendant's conviction on appeal, but remanded the matter for re-sentencing on the consecutive portion of defendant's sentence. State v. Soriano, No. A-1516-00T4 (App. Div. Sept. 26, 2002) (slip op. at 8). Upon re-sentencing, the court imposed concurrent terms on all of the offenses, resulting in an aggregate custodial sentence of fifteen years with a twelve-year, nine-month and three-day period of parole ineligibility.
On February 3, 2005, defendant filed a pro se verified petition for PCR and later, through counsel, filed an amended petition. The essence of defendant's petition focuses upon a claim of ineffective assistance of trial counsel. Specifically, defendant contends trial counsel failed to object to testimony that defendant used aliases, trial counsel elicited testimony that resulted in the jury learning that defendant had illegally entered the country and had been involved in a domestic violence incident, and also elicited testimony from the investigating officer that defendants were both blaming each other for striking the victim. In denying post-conviction relief, the court found the petition was barred by the five-year time period set forth in Rule 3:22-12 and that defendant had failed to demonstrate excusable neglect. In addition, the court concluded that defendant failed to demonstrate he was entitled to relief pursuant to Rule 1:1-2, which permits the court to relax the time limitations of Rule 3:22-12 "if adherence to it would result in an injustice." R. 1:1-2. The present appeal followed.
Defendant raises the following points for our consideration:
DEFENDANT'S PCR PETITION WAS NOT TIME-BARRED.
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE WAS ESTABLISHED AS TO THE INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIMS.
A. TRIAL COUNSEL FAILED TO OBJECT TO THE USE OF DEFENDANT'S ALIASES.
B. TRIAL COUNSEL ERRONEOUSLY ELICITED TESTIMONY CONCERNING DEFENDANT'S ILLEGAL ENTRY INTO THE UNITED STATES, HIS INVOLVEMENT IN A DOMESTIC VIOLENCE DISPUTE, AND HIS CO-DEFENDANT'S CROSS-ACCUSATIONS.
C. THE CUMULATIVE ERRORS MANDATE THAT DEFENDANT BE AFFORDED AN EVIDENTIARY HEARING.
We reject these arguments and affirm the denial of defendant's petition substantially for the reasons set forth in Judge Reed's written opinion attached to his April 8, 2007 order. We add the following comments.
Under Rule 3:22-12, a PCR petition is time barred if the petition is not filed within five (5) years of the judgment of conviction, unless "the delay beyond said time was due to excusable neglect." The petition must claim excusable neglect and allege facts relied on to support that claim. State v. Cann, 342 N.J. Super. 93, 101-02 (App. Div.) (citing State v. Mithell, 126 N.J. 565, 577 (1992), certif. denied, 170 N.J. 208 (2001). The five-year period for filing a petition for PCR commences with the entry of the judgment of conviction, State v. Riley, 216 N.J. Super. 383, 389 (App. Div. 1987), and is not tolled by the pendency of a direct appeal. State v. Dugan, 289 N.J. Super. 15, 19 (App. Div.), certif. denied, 145 N.J. 373 (1996).
Defendant's judgment of conviction was entered on September 27, 1999. Defendant filed his verified petition for PCR on February 3, 2005, a little more than four months beyond the five-year filing period. In his amended PCR petition, defendant contends he was unaware that he could seek post-conviction relief until November 2004 and that although he was represented by appellate counsel in his direct appeal and was advised during his appeal of his right to federal certiorari and habeas corpus remedies, appellate counsel failed to advise him of the availability of similar relief under state law through post-conviction relief. Defendant argues that because appellate counsel affirmatively misguided him, the trial court should have relaxed the time constraints under Rule 3:22-12.
An ineffective assistance of counsel claim is rooted in the Sixth Amendment which, in part, guarantees a criminal defendant the right to an attorney. The seminal cases in this context are Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), and United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed. 2d 657 (1984). The Strickland-Cronic approach to claims of ineffective assistance of counsel was adopted by our state courts in State v. Fritz, 105 N.J. 42, 58 (1987).
Fritz, supra, reiterates the two-prong test enunciated in Strickland and tailored in Cronic. First, a defendant must show that counsel's performance was deficient. Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694). Deficiency in this context has been interpreted to mean "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693). The second prong requires a showing that defendant was actually prejudiced by counsel's alleged deficient performance. Ibid. This requires a showing of "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 90 L.Ed. 2d at 698).
Here, we agree with the PCR judge's conclusion that there is no authority that compels appellate counsel to advise a defendant of all post-appeal remedies. Appellate counsel's obligation to a client requires that appellate counsel review the trial court record with the objective to raise those issues that demonstrate that a defendant has been deprived of a fair trial. State v. Buonadonna, 122 N.J. 22, 41 (1991); State v. Guzman, 313 N.J. Super. 363, 374 (1998). Thus, in our view, defendant's claim that appellate counsel failed to advise him of post-conviction relief remedies in state court did not justify relaxation of the five-year filing requirement under Rule 3:22-12. Moreover, as the trial court noted, had the PCR petition been timely filed or the five-year filing requirement relaxed pursuant to Rule 1:1-2, the claimed ineffective assistance of counsel attributed to trial counsel would not have altered the outcome. Consequently, defendant would not have satisfied the second prong under Strickland/Fritz.
The State's evidence of petitioner's involvement in the crime was overwhelming. Further, petitioner took the stand at trial, and confirmed most of the State's proofs. Regardless of which assailant actually brandished the knife, verbally threatened the victim, took her money, or assaulted her, petitioner's testimony confirmed, at the very least, that petitioner was an accomplice of Mr. Majkut, if not the actual perpetrator. Thus, he is legally accountable for the conduct of Mr. Majkut. See N.J.S.A. 2C:2-6. After the jury heard the State's proofs, petitioner's testimony and the trial judge's charge on accomplice liability, even the most strenuous and precise advocacy on the part of trial counsel would likely not have changed the result in this case. Viewing the facts in the light most favorable to petitioner, he has not established a prima facie ineffective-assistance-of-counsel claim. Thus, the nature of his claim does not compel this Court to relax the time limits of Rule 3:22-12.
The order appealed from is affirmed.