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State v. Rosado


January 20, 2009


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 00-04-0349.

Per curiam.


Submitted: December 17, 2008

Before Judges C.L. Miniman and King.

Defendant Kelvin Rosado appeals from a November 15, 2006, order denying his April 21, 2006, pro se application for post-conviction relief (PCR) from a November 6, 2000, judgment of conviction and order for commitment. In the earlier proceeding, defendant pled guilty to two counts of armed robbery and was sentenced to a twelve-year term of imprisonment on each count, to be served concurrently.*fn1 Because the issues defendant raises in his PCR application either lack merit or are procedurally barred, we affirm.

In his application for PCR, defendant asserted that his trial counsel was constitutionally ineffective because he "did not effectively argue on behalf of petition for a lesser sentence of [ten] years" and did not fully explain the terms of the plea agreement. Defendant next claimed that the court erred, first in accepting his plea because it "was not made voluntarily or with a full understanding of the penal consequences," and second in sentencing him to an unconstitutional and illegal sentence. Finally, defendant urged that he was denied the effective assistance of appellate counsel because that attorney "failed to raise the winning issues on a direct appeal [and] failed to argue effectively the illegality of petitioner's sentence." Defendant asked the judge to vacate the sentence and schedule a new sentencing hearing.

The PCR judge denied the relief requested on the ground that the transcript of the plea hearing clearly demonstrated that defendant understood the plea, the sentence, and the penal consequences of the NERA parole disqualifier. He observed that defendant established an adequate factual basis for the convictions and concluded that defendant received a good plea bargain. He also found that the sentence was upheld on appeal and could not be revisited but, even if it could be revisited, it was within the sentencing range and not illegal. The judge also determined that there was nothing in the record to demonstrate ineffective assistance of counsel. Finally, he observed that there was no legal basis to permit a downward modification of the sentence from twelve years to ten and denied the PCR application. This appeal followed.

Defendant raises the following issues on appeal:






The scope of our review of a ruling on a PCR application is generally de novo, although "[t]he factual findings underpinning the[] legal conclusions are reviewed for clear error." State v. Harris, 181 N.J. 391, 420-21 (2004) (internal quotation omitted), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005). Of course, "credibility determinations are given greater deference unlike the evaluation of the documentary record." Id. at 420 (citation omitted). Such determinations, however, are not implicated here and, thus, our review is fully de novo.

The right to seek PCR, an analogue to the federal writ of habeas corpus, is governed by Rules 3:22-1 to -12. Harris, supra, 181 N.J. at 420. It is not a substitute for direct appeal. R. 3:22-3; State v. Afanador, 151 N.J. 41, 50 (1997). As a consequence:

Any ground for relief not raised in a prior proceeding under this rule, or in the proceedings resulting in the conviction, or in a post-conviction proceeding brought and decided prior to the adoption of this rule, or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds (a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.

[R. 3:22-4 (emphasis added).]

Ineffective assistance of counsel claims are generally not barred by this rule because they raise constitutional issues. Harris, supra, 181 N.J. at 518; State v. Guzman, 313 N.J. Super. 363, 374-75 (App. Div.), certif. denied, 156 N.J. 424 (1998). As a result, the PCR judge properly considered these to be cognizable claims. We are also satisfied that the PCR claim that defendant's guilty plea was neither knowing nor voluntary was not barred by Rule 3:22-4 because enforcement of the bar with respect to an involuntary, uninformed guilty plea would result in fundamental injustice. See, e.g., State v. Martini, 187 N.J. 469, 481-82 (2006), cert. denied sub nom. Martini v. New Jersey, ___ U.S. ___, 127 S.Ct. 1285, 167 L.Ed. 2d 104 (2007); State v. Mitchell, 126 N.J. 565, 577 (1992).

On the other hand, issues that were raised in prior pro- ceedings and adjudicated on the merits are conclusive and may not be reconsidered on an application for PCR. R. 3:22-5; Harris, supra, 181 N.J. at 494; State v. McQuaid, 147 N.J. 464, 484 (1997). Although we have recognized that this rule may be relaxed where "the constitutional problem presented is of sufficient import," State v. Johns, 111 N.J. Super. 574, 576 (App. Div. 1970), certif. denied, 60 N.J. 467, cert. denied sub nom. Johns v. New Jersey, 409 U.S. 1026, 93 S.Ct. 473, 34 L.Ed. 2d 319 (1972), the exception does not apply here. Defendant's PCR claim that his sentence was unconstitutional and illegal was raised on direct appeal and we conclusively decided the issue. As a result, the judge correctly enforced this rule when he refused to consider the sentencing issue.

There is, however, a further bar to PCR review found in Rule 3:22-12(a), which provides:

A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.

Here, the judgment of conviction was entered on November 6, 2000, but the PCR application was not filed until April 21, 2006. The five-year period is not tolled by appellate or other review proceedings. State v. Dugan, 289 N.J. Super. 15, 19 (App. Div.), certif. denied, 145 N.J. 373 (1996); State v. Dillard, 208 N.J. Super. 722, 727 (App. Div.), certif. denied, 105 N.J. 527 (1986). Thus, the application was facially untimely under the rule.

The PCR judge observed that the time bar ordinarily would preclude consideration of defendant's claims of ineffective assistance of counsel and a defective plea, but decided to reach the merits of the application. Defendant argues in his fourth point on appeal that "none of the procedural bars of the Court Rules to post-conviction relief applied in this case." We cannot agree with this proposition.

Initially, we note that defendant did not comply with the requirement of the rule that the petition must allege "facts showing that the delay beyond said time was due to defendant's excusable neglect." R. 3:22-12(a); Mitchell, supra, 126 N.J. at 578. Indeed, the petition only addressed the delay in filing the initial notice of appeal from the conviction and sentence. There is no explanation for the delay after the Supreme Court denied certification on June 19, 2002, and the delay prior to that date did not toll the time to file defendant's PCR application. Dugan, supra, 289 N.J. Super. at 19. As a result, Rule 3:22-12(a) can only be relaxed under Rule 1:1-2, the general relaxation rule. Mitchell, supra, 126 N.J. at 578.

In this respect, the Mitchell Court cautioned that the general relaxation rule "was not intended to vitiate the rules from which it permitted exceptional relief." Id. at 579.

In the context of post-conviction relief, a court should relax Rule 3:22-12's bar only under exceptional circumstances. 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. As we have made clear, the longer the time-span since the original trial, the more difficult a retrial becomes. Absent compelling, extenuating circumstances, the burden of justifying a petition filed after the five-year period will increase with the extent of the delay.

The prejudice to the State's ability to litigate the case after a long delay is also relevant. If the key witnesses are unlikely to be available, evidence has disappeared, or other obstacles are present, allowing the petition for post-conviction relief will unduly prejudice the State's ability to bring its case. These concerns must, however, be balanced against the significance of the petitioner's interest in raising his or her petition. If the petitioner articulates facts that demonstrate a serious question about his or her guilt or the propriety of the sentence imposed and is prepared to provide factual evidence to support it, then sufficient grounds for relaxing the Rule might exist. In other words, a court should determine that the procedural rule as applied is unjust only when a significant liberty interest is at stake and the petitioner has offered something more than a bare allegation that that is so. [Id. at 580 (emphasis added).]

In Mitchell, the defendant filed a pro se PCR petition sixand-a-half years after his conviction. Id. at 574. He claimed that there was not an adequate factual basis for his plea and that his sentence was improper. Ibid. The Court rejected reliance on Rule 1:1-2 to relax the time bar of Rule 3:22-12(a):

In sum, unless a petitioner alleges and demonstrates that he can provide clear evidence that an innocent party has mistakenly pleaded guilty or has received a manifestly improper sentence, the Rule barring petitions for post-conviction relief more than five years after sentencing will not be deemed to create an "injustice" that would justify relaxation of the Rule pursuant to Rule 1:1-2. Defendant has not shown that such evidence could be provided in this case. [Id. at 583.]

Here, the record is silent as to "the extent and cause of the delay." Id. at 580. Furthermore, defendant has not "demon-strate[d] a serious question about his or her guilt or the propriety of the sentence imposed," ibid., nor has he "prepared to provide factual evidence to support it," ibid. Defendant's claim that his plea was not knowing and intelligent is decisively contradicted by the plea record, as the PCR judge properly concluded, and thus no "injustice" would be created by enforcing the time bar of Rule 3:22-12(a). Furthermore, his claim of ineffective assistance of trial counsel is not supported by the bare record of the plea hearing, where he acknowledged that his attorney had discussed NERA's requirement for mandatory parole supervision and the consequences of a parole violation. Thus, the NERA issue required proof outside the record, but defendant did not submit his own certification or that of trial counsel setting forth precisely what was communicated to him respecting this issue in order to demonstrate that he was not adequately apprised of the penal consequences of his plea. State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002) ("Where, as here, the defendant asserts that his attorney failed to call witnesses who would have exculpated him, he must assert the facts that would have been revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification.") (internal citations & quotations omitted); cf. State v. Allen, 398 N.J. Super. 247, 258 (App. Div. 2008) (defendant appealing denial of PCR, previously convicted of murder and sentenced subject to NERA, entitled to evidentiary hearing because a newly discovered witness's "post-judgment exculpatory statements to third parties, and confirmed by affidavit, must be tested for credibility and cannot be summarily rejected"). As a result, defendant did not present more than a bare allegation, which cannot support a conclusion that the application of the Rule 3:22-12(a) time bar would be unjust. Mitchell, supra, 126 N.J. at 583. Furthermore, defendant did not even make out a prima facie case of ineffective assistance of trial counsel respecting his plea because the record is silent as to the advice he was given. Cf. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Defendant also did not demonstrate an injustice with respect to counsel's alleged inadequate arguments respecting the mitigating and aggravating factors to be considered at the sentence hearing. Defendant asserts that his trial counsel should have argued in mitigation of sentence that he would compensate his victims; his conduct was the result of circumstances not likely to recur; his character and attitude indicated that he was not likely to commit another offense; he was likely to respond to probationary treatment; and he manifested a willingness to cooperate with law enforcement, citing N.J.S.A. 2C:44-1(b)(6), (8), (9), (10), and (12), respectively. He also contends that his attorney should have argued that the youth of the victim's daughter could not be considered an aggravating factor.

Defendant has not cited any reported decisions that would have required the sentencing judge to find these mitigating factors or barred the judge from considering the youth of the victim's daughter, who witnessed the armed robbery. It is unlikely that a sentencing judge would have found any of the mitigating factors now urged before us. The judge did consider that defendant had no prior adult convictions, but noted that he was on probation for a juvenile adjudication when he committed the two armed robberies. As to the other mitigating factors, defendant had no apparent ability to compensate the victims because he owed money toward restitution and penalties from his juvenile adjudication; his character and attitude did suggest that it was likely he would commit another crime; and he did not cooperate with law-enforcement authorities within the meaning of N.J.S.A. 2C:44-1(b)(12) because he did not implicate his co-defendants. Furthermore, treating defendant's claimed amenability to probation as a mitigating factor would have been inappropriate when he was facing a mandatory prison term. State v. Kelly, 266 N.J. Super. 392, 396 (App. Div. 1993) (N.J.S.A. 2C:44-1(b)(10) is "irrelevant . . . where a prison term is mandated by statute").

We have already found that the sentence was not excessive, an issue that cannot be revisited on a PCR application, R. 3:22-5, and the mitigating factors to which he points were simply not applicable. Thus, defendant's trial counsel did not provide ineffective assistance at the sentencing hearing and defendant failed to establish that application of the procedural bar of Rule 3:22-12(a) would be unjust because he has not demonstrated that "a significant liberty interest is at stake." Mitchell, supra, 126 N.J. at 580.

The insufficiency of defendant's proofs respecting his claim of ineffective assistance of trial counsel also disposes of his claim of ineffective assistance of appellate counsel as the "winning" issues he urges should have been raised on appeal lacked merit. As a consequence, like Mitchell, no injustice demanded relaxation of the time bar contained in Rule 3:22-12(a).

Even were we to conclude that the time bar should have been relaxed, we would nonetheless conclude that defendant's arguments "are without sufficient merit to warrant discussion in a written opinion," R. 2:11-3(e)(2), and would affirm on the November 2, 2006, oral opinion of Judge Dennis V. Nieves.


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