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State of New Jersey v. Arnaldo Infante

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 15, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ARNALDO INFANTE, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 80-11-1450.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 11, 2011

Before Judges Messano and Waugh.

Defendant Arnaldo Infante appeals the denial of his petition for post-conviction relief (PCR). We affirm. Infante pled guilty to armed robbery and was sentenced to fifteen years imprisonment in 1981. He served approximately six years before being released on parole.

In 1987, Infante pled guilty to cocaine possession with intent to distribute and was sentenced to seven years imprisonment. That offense was committed while Infante was on parole. In 1991, he filed a timely PCR petition with respect to the cocaine conviction. The petition was dismissed on its merits. A second PCR petition with respect to that offense was dismissed as untimely in 2008.

Following completion of his armed robbery and cocaine sentences, Infante was convicted and sentenced on a federal offense. In December 2007, while in federal custody, Infante filed the PCR petition at issue in this appeal, in which he seeks to overturn the armed robbery conviction on the grounds of ineffective assistance of counsel and the purported involuntary nature of his guilty plea.

The PCR judge dismissed Infante's petition without an evidentiary hearing. He found it to be untimely, noting that Infante knew that PCR relief was available in 1991 when he filed his petition regarding the cocaine offense. Nevertheless, the judge considered Infante's substantive claims, but found them to be without merit. This appeal followed.

On appeal, Infante raises the following issues:

POINT I: THE PCR COURT ERRED BY HOLDING THAT DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF IS BARRED BY THE FIVE YEAR LIMITATIONS PERIOD SET FORTH IN R. 2C: [sic] 3:22-12.

A. DEFENDANT HAS ESTABLISHED EXCUSABLE NEGLECT FOR THE DELAY.

B. R. 3:22-12(A)'S BAR SHOULD BE RELAXED TO AVOID INJUSTICE.

PONIT II: THE PCR COURT ERRED BY FINDING THAT DEFENDANT'S TRIAL COUNSEL RENDERED EFFECTIVE ASSISTANCE OF COUNSEL.

A. THE PCR COURT COMMITTED PLAIN ERROR BY FAILING TO APPLY THE STANDARD IN ROE V. FLORES-ORTEGA TO DETERMINE WHETHER DEFENDANT'S TRIAL COUNSEL VIOLATED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO FILE A NOTICE OF APPEAL OF DEFENDANT'S CONVICTION AND SENTENCE AND, THEREFORE, THE ORDER DENYING PCR MUST BE VACATED AND REMANDED FOR A HEARING CONSISTENT WITH ROE. (Not raised below).

B. THE PCR COURT ERRED BY HOLDING THAT DEFENDANT'S TRIAL COUNSEL DID NOT VIOLATE THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO REQUEST A SPANISH-SPEAKING INTERPRETER FOR THE DEFENDANT AT THE PLEA AND SENTENCING HEARINGS.

C. THE PCR COURT ERRED BY HOLDING THAT DEFENDANT'S TRIAL COUNSEL'S [sic] DID NOT VIOLATE THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY MISADVISING THE DEFENDANT WITH CORRECT LEGAL ADVICE REGARDING THE IMMIGRATION CONSEQUENCES OF HIS GUILTY PLEA.

D. THE PCR COURT ERRED BY HOLDING THAT DEFENDANT'S TRIAL COUNSEL WAS NOT INEFFECTIVE FOR MISADVISING THE DEFENDANT REGARDING THE IMMIGRATION CONSEQUENCES OF HIS GUILTY PLEA.

POINT III: THE PCR COURT ERRED BY HOLDING THAT THE DEFENDANT'S GUILTY PLEA WAS VOLUNTARY.

POINT IV: THE PCR COURT ERRED BY HOLDING THAT THERE WAS NO CUMULATIVE ERROR.

POINT V: ALL ISSUES RAISED IN DEFENDANT'S PRO SE BRIEF, IF ANY, MUST BE CONSIDERED IN SUPPORT OF THE INSTANT APPEAL.

In addition, Infante has raised the following issues in his pro se supplemental brief:*fn1

POINT I: DEFENDANT INFANTE'S TRULLY EXCUSABLE NEGLECT ON DELAY TO CHALLENGE HIS N.J. STATE PRIOR CONVICTION LATE.

A. A REASON WHY DEFENDANT INFANTE DO NOT CHALLENGE HIS 1981 CONVICTION AFTER HE WAS SENTENCE.

B. COMMITMENT OR RELEASE OF DEFENDANT.

C. DEFENSE ATTORNEY FAILURE TO REQUESTED FOR A PSYCHIATRIC EXAMINATION TO THE COURT! VIOLATED DEFENDANT'S DUE PROCESS.

D. PCR APPEAL COURT HOULD GRANTE INFANTE EXCUSABLE NEGLECT BECAUSE THE DELAY IN THIS PETITION ITS CAUSE OF INFANTE UNABLE MENTAL ILLENSS BIPOLAR DISORDER AND MANIA.

E. THAT SUPERIOR COURT DENIED INFANTE'S RIGHT OF DIRECT APPEAL IN VIOLATION OD DEFENDANT'S DUE PROCESS.

F. DEFENDANT INFANTE HAS ESTABLISHED EXCUSABLE NEGLE FOR DELAY.

POINT II: DDFENSE ATTORNEY WAS INEFFECTIVE BY FAILURE TO FILED A PETITION REQUESTING FOR A PRE-TRIAL INTERVENTION PROGRAMS! PURSUANT NEW JERSEY GOVERNNING CRIMINAL PRACTICE. RULE. 3:28(a), (b), (c).

A. DEFENDANT INFANTE WAS SERIOS PREJUDICE BY DDFENSE COUNSEL FAILURE TO REQUESTED FOR THE OPPORTUNITY TO INFANTE PARTICIPATE AT THE PRE-TRIAL INTERVENTION PROGRAM. PURSUANT NEW JERSEY GOVERNNING CRIMINAL PRACTICE. RULE 3:28 (a), (b), (c), (1), (4).

B. THE SUPERIOR COURT JUDGE ERRED BY NOT INFORM INFANTE OF THE APPLICATION AND OPPORTUNITY TO PARTICIPATE WITHIN THE PRE-TRIAL INTERVENTION PROGRAM! AT THE FIRST APPEARANCE OF DEFENDANT INFANTE IN COURT, AFTER FILING A COMPLAINT IN COURT.

C. THE PCR COURT ERRED BY NOT REMAND INFANTE'S POST-CONVICITON RELIEF! FOR EVIDENTIARY HEARING, BECAUSE THE FAILURE BY THE JUDGE TO INFORM INFANTE WITH THE OPPORTUNITY OF PARTICIPATE IN THE

PRE-TRIAL INTERVENTION PROGRAM. RULE. 3:28. (a), (b), (c). THIS PTI PROGRAM GUARRANTED THE DEFENDANT INFANTE OR ANY OTHER DEFENDANTS WITH A DISMISSAL OF INDICTMENT! INFORMATION! OR COMPLAINT AFTER A SUCCESSFUL COMPLICTION.

POINT III: SUPERIOR COURT JUDGE THOMAS L. FRANCKLIN, VIOLATED INFANTE DUE PROCESS AT THE DEFENDANT PLEA COLLOQUY HEARING FEDERAL RULE CRIM. PROC. RULE. 11, BY NOT INQUIRED INFANTE COLLOQUY IF DEFENDANT WAS UNDER DRUG OR ANTIPSYCHOTIC MEDICATION EFFECT.

POINT IV: DEFENDANT INFANTE HAS BEEN PROVIDED THIS COURT WITH ALL THOSE LEGAL DOCUMENTS THAT HE POSSIBLE CAN, TO SHOW TO THIS COURT A GOOD FAITH OF COOLABORATION IN RECONSTRUCT THE RECORD PURSUANT N.J.S.A. RULE 1:2-2, and R. 2:5-3(f).

A. DEFENDANT INFANTE CLAIMS THAT THIS PCR APPEAL COURT SHOULD REMAND THIS CASE TO THE SUPERIOR COURT OF N.J. WITH A ORDER FOR RECONSTRUCT THE RECORDS! OR THE REMANING PART OF RECORDS.

B. SINCE DEFENDANT INFANTE HAVE A VAILABLE PART OF THIS 1981 CONVICTION RECORD IT IS FAIR TO ORDER A EVIDENTIARY HEARING FOR RECONSTRUC THIS ENTIRED RECORD, AND PROCEE IN HABEAS CORPUS-RELIEF.

PART V: BERGEN COUNTY SUPERIOR COURT JUDGE ERRED BY FAILURE TO REQUESTED FOR A PSYCYIATRIC OR PSYCHOLOGICAL EXAMINATION FOR FITNESS TO PROCEED PURSUANT. N.J.S.A. 2C:4-5, AND 18 U.S.C. SECTION 4241.

A. INFANTE COUNSEL WAS INEFFECTIVE BY NOT REQUESTED A PSYCHIATRIC EXAMINATION FOR FITNESS TO PROCEED! AFTER REVIEWED INFANTEE PSYCHIATRIC HISTORY! FOR PSIS REPORT! AND WAS AWARE THAT INFANTE WAS IMPATIENT AT THE BERGEN PINES PSYCHIATRIC HOSPITAL BEFORE PLEA GUILTY.

POINT VI: DEFENSE COUNSEL WAS INEFFECTIVE BY MISADVISING THE DEFENDANT INFANTE WITH HIS DEPORTATION COUNSEQUENCES BEFORE GUILTY PLEA. DEFENDANT ASKED HIS COUNSEL BEFORE PLEA GUILTY. IF I PLAE GUILTY INS WILL GOING TO DEPORTER ME TO MY COUNTRY? DEFENSE COUNSEL ADVISED WAS. ITS NOT A SERIOUS POSSIBILITY FOR DEPORTATION. THAT IS WHY! I AM NEGOCIATE A FIVE YEARS PROBATION SENTENCE! THAT YOU CAN BE ABLE TO GOING BACK TO WORK! AND TAKE CARE YOU FAMILY. DO NOT WORRY ABOUT DEPORTATION.

B. DEFENDANT INFANTE CONTEDS THAT HE INQUIRED TO PSI REPORT THAT HE DON'T WANT TO BE DEPORTER AFTER HE PLEA GUILTY.

C. INFANTE'S COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE IN AFFIRMATIVELY MISLADING HIM AS TO THE IMMIGRATION CONSEQUENCES OF HIS CONVICTION! AND INFANTE SATIFY ALL THE REQUIREMENTS FOR POST-CONVICTION RELIEF.

D. COUNSEL RESPONSIBILITY IS PROVIDE HIS CLIENT WITH AN UNDERSTANDING OF THE LAW IN RELATION TO THE FACTS, SO THAT THE ACCUSED MAY MAKE AN INFORMED AND CONCIOUS CHOICE.

E. DEFENSE COUNSEL WAS INEFFECTIVE BY FAILURE TO FILED A PETITION TO THE COURT JUDGE REQUESTING FOR A JUDICIAL RECOMMENDATION AGAINST DEPORTATION! IN BELHALF OF DEFENDANT INFANTE.

F. TRIAL COURT JUDGE FAILURE BY NOT ADVISED DEFENDANT INFANTE WITH HIS DEPORTATION CONSEQUENCES AT THE PLEA COLLOQUY HEARING IN VIOLATION OF FEDERAL RULE CRIM. PROC. RULE.11.

G. THE PCR ERRED BY HOLDING THAT DEFENDANT'S TRIAL COUNSEL WAS EFFECTIVE AFTER TRIAL COUNSEL FAILURE TO REQUESTED FOR A JUDICIAL RECOMMENDATION AGAINST DEPORTATION TO PROTECTED PETITIONER INFANTE FROM IMMIGRATION DE CONSEQUENCES OH HIS GUILTY PLEA.

H. DEFICIENTE PERFORMANCE.

POINT VII: THE PCR COURT COMMITTED PLAIN ERROR BY FAILING TO APPLY THE STANDARD IN ROE V. FLORES-ORTEGA! TO DETERMINE WHETHER DEFENDANT'S TRIAL COUNSEL VIOLATED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO FILE A NOTICE OF APPEAL ON DEFENDANT'S CONVICTION AND SENTENCE, AND THEREFORE, THE ORDER DENYING PCR MUST BE VACATED AND REMANDED FOR A HEARING CONSISTENT WITH ROE.

A. DEFENDANT INFANTE REQUESTED TO HIS LAWYER THAT FILED HIS APPEAL ON SEVERAL TIME! AFTER HE WAS SORPRISED WITH THE % YEARS SENTENCE IMPOSSE BY THE JUDGE, RETHAN 5 YEARS PROBATION SENTENCE! ACCORDING WITH DEFENSE ATTOENEY INFORMED THE DEFENDANT, THAT WAS ATTORNEY DUTY AND RESPONSIBILITY TO FILED THE NOTICE OF APPEAL IF DEFENDANT DESIRED. DEFENSE ATTORNEY FALL SHORT CONSTITUTE OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT VIII: WHETHER NORTHCVALE POLICE DEPARTMENT HAS BEEN VIOLATED DEFENDANT INFANTE ARTICLE 36 CONSULAR RELATION RIGHTS UNDER VIENNA CONVENTION ARTICLE 36 1.(a),

(b), 2.

A. THE NEW JERSEY PORT AUTHORITY POLICE DEPART. VIOLATED DEFENDANT INFANTE ARTICLE 36 CONSULAR RELATIONS RIGHTS UNDER VIENNA CONVENTION. ARTICLE 36 1, (a),

(b), 2.

B. DECLARATION OF INDEPENDENCE IN

CONGRESS, JULY 4, 1776.

C. VIENNA CONVENTION ARTICLE 36 1, (a), (b), 2.

D. THE RIGHT TO CONSULAR ACCESS.

POINT IX: DEFENSE ATTORNEY WAS INEFFECTIVE BY NOT REQUESTED A INTERPRETER SPANISH-SPEAKING PERSON FOR THE DEFENDANT INFANTE FOR THE ENTIRED COURT PROCEDURE PLEA AND SENTENCE.

A. THE PCR COURT ERRED BY NOT RECOGNIZED THIS VIOLATIONS FROM DEFENSE COUNSEL, AGAINST DEFENDANT INFANTE UNITED STATES CONST. RIGHTS.

SEE INTERNATIONAL COURT JUSTICE AS EXHIBIT, AND SANCHEZ-LLAMAS V. OREGON! CASES CITED IN SUPPORT OF ARTICLE 36 CONSULATE RELATIONS UNDER VENNA CONVENTION AS EXHIBIT.

POINT XI: INFANTE WAS PREJUDICE BY HIS COUNSEL'S FAILURE TO OBJECT TO THE SUPERIOR COURT'S NUMEROUS RULE 11 ERRORS.

THE PCR COURT FAILURE BY NOT REMAND THIS CASE TO SUPERIOR COURT FOR CORRECT THOSE NUMEROUS OF ERRORS AGAINST FEDERAL RULE CRIM. PROC. RULEE 11.

Having reviewed the arguments raised by Infante in light of the applicable law and the record before us, we find them to be without merit and not warranting extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm essentially for the reasons stated by Judge Harry G. Carroll in his detailed written decision. We add only the following.

Rule 3:22-12 provides a time limit for the first filing of a PCR petition. It specifies that "no petition shall be filed pursuant to this rule more than [five] years after the date of entry . . . of the judgment of conviction that is being challenged unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." R. 3:22- 12(a)(1). Lack of "sophistication in the law does not satisfy the exceptional circumstances required" to constitute excusable neglect. State v. Murray, 162 N.J. 240, 246 (2000).

The five-year time bar established by Rule 3:22-12(a)(1) may be relaxed only in "exceptional circumstances." State v. Afanador, 151 N.J. 41, 52 (1997). In determining whether or not exceptional circumstances exist, courts 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.'" Ibid. Without "compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay." Ibid.

In the case before us, the PCR petition was filed over twenty-one years late. Infante has set forth no colorable claim of excusable neglect, especially in light of the fact that he filed a PCR petition in 1991 with respect to the subsequent drug offense.

Affirmed.


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