On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 08-046.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Parrillo.
Defendant Edwin Lorenzo appeals from an order of the Law Division upholding the municipal court's denial of his petition for post-conviction relief (PCR) from his guilty plea conviction and sentence thereon. We affirm.
Defendant was originally charged with third-degree terroristic threats, N.J.S.A. 2C:12-3a, and fourth-degree aggravated assault, N.J.S.A. 2C:12-1b. Those charges were eventually downgraded to the petty disorderly person offenses of harassment, N.J.S.A. 2C:33-4, and simple assault, N.J.S.A. 2C:12-1a, and the matter was remanded to the municipal court, where defendant pled guilty to simple assault. The remaining count was dismissed and defendant was sentenced to 179-days incarceration at the county jail, $676 in restitution, costs, penalties and fines.
At the plea hearing, on November 30, 2000, defendant admitted that on June 28, 2000, he assaulted Tara Cosentino by striking her with a cell phone. Defendant also acknowledged that he understood his sentence exposure: specifically, defendant noted that he understood that by pleading guilty, he "may be facing a jail sentence, up to six months" and a $1,000 fine. Defendant also confirmed that he understood that although he was pleading guilty to simple assault, there were "no promises being made to [him]... as to whether or not [he's] going to prison." The court ordered a pre-sentence report and noted that defense counsel represented that defendant understood "that he could go to jail as a result of this," and that "[t]here is no plea offer, nothing on the table right now that guarantees that [defendant] is not going to jail." The court further stated that if defendant pleaded guilty, his sentence would be based upon a review of his pre-sentence report.
Following the plea, the court reiterated that there are "no representations" as to whether defendant would be sentenced to a custodial sentence. At sentencing on February 15, 2001, after the court advised defendant of his rights, defendant chose not to speak. His attorney represented that defendant "came prepared today to pay fines to this Court, to pay restitution, if ordered, of $603. We were aware of restitution from the police reports."
Seven years after his judgment of conviction, defendant filed a petition for PCR in the municipal court,*fn1 seeking to withdraw his guilty plea as not freely and knowingly entered. On March 20, 2008, the municipal court, after reviewing the record of defendant's guilty plea hearing, found that defendant's plea was entered "freely and voluntarily, knowingly," and therefore, denied defendant's petition.*fn2
On May 8, 2008, defendant appealed to the Law Division, where he argued that his guilty plea was invalid because he did not provide an adequate factual basis, was not advised of the penal consequences of his guilty plea and was not informed of the constitutional rights he was waiving. After hearing argument, on April 9, 2009, the Law Division judge denied defendant's PCR application on both procedural grounds and the substantive merits.
As to the former, the judge found that defendant's PCR petition was barred as well beyond the five-year time limitation of Rule 7:10-2(b)(2). Although defendant had couched his PCR claim as one of an illegal sentence and therefore not subject to the procedural requirement, Rule 7:10-2(b)(1), the court found defendant's sentence was not illegal since it was authorized by statute and in accordance with law. Rule 7:10-2(c)(3). Rather, defendant's actual PCR claim was that of an invalid guilty plea, which is clearly subject to the time-limitation set forth in Rule 7:10-2(b)(2) and, lacking any demonstration of excusable neglect, is therefore precluded as untimely.
The court also found defendant's petition was procedurally barred under Rule 7:10-2(d)(1) because the grounds for relief could have, but were not, raised in a prior proceeding or on direct appeal. This bar may only be lifted where defendant satisfies one of three exceptions: (1) where the grounds for relief not asserted could not have reasonably been raised in any prior proceedings; (2) where enforcing the bar would result in fundamental injustice; or (3) where there has been an infringement on defendant's constitutional rights. R. 7:10- 2(d)(1)(A)-(C); State v. Mitchell, 126 N.J. 565, 584, 587 (1992). Here, as the court found, the claims made by defendant turn exclusively on the record established by and for the plea and sentencing hearings and, therefore, all the information necessary to raise these claims was available to defendant for purposes of a post-sentencing motion to vacate his guilty plea or a direct appeal. Furthermore, as the Law Division judge found when rejecting defendant's claims on the merits, defendant's claims are not of constitutional dimension, because defendant's guilty plea was knowingly and voluntarily entered and was supported by an adequate factual basis.
As to the latter, the Law Division judge found no substantive merit to defendant's PCR claims, much less that they establish the necessary "manifest injustice" required for a guilty plea to be withdrawn at this late stage:
Here the defendant does not contest his guilt nor does he allege ineffective assistance of counsel. Instead, his claims are that he failed to provide an adequate factual basis to support a finding of simple assault.... Specifically, defendant claims he did not set forth the appropriate mens ...