March 12, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GUILLERMO VELOZ, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 00-07-1204.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 26, 2011
Before Judges Lihotz and St. John.
Defendant Guillermo Veloz, a convicted murderer, appeals from the denial of his petition for post-conviction relief (PCR) as untimely. See R. 3:22-12 (establishing a five-year general time limitation).
Defendant, who was sixteen at the time of the crimes, was tried before a jury as an adult. He is serving an aggregate term of thirty years, subject to thirty years parole ineligibility after his convictions for murder, N.J.S.A. 2C:11-3 (count one); felony murder, N.J.S.A. 2C:11-3a(3) (count two); armed robbery, N.J.S.A. 2C:15-1 (count three); second-degree burglary, N.J.S.A. 2C:18-2 (count four); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count five); and third-degree burglary, N.J.S.A. 2C:18-2 (count six).
We affirmed defendant's convictions and sentence in an unpublished opinion, issued June 4, 2004 (No. A-4750-01).*fn1 The events that underlie defendant's convictions are set forth in our 2004 opinion, and the record demonstrates defendant's overwhelming guilt of the charges against him. The Supreme Court denied certification on October 14, 2004. State v. Veloz, 182 N.J. 141 (2004).
On July 18, 2005, defendant filed a motion seeking a sentence reduction, which was denied.*fn2
On October 16, 2008, defendant filed his PCR petition, which was denied as untimely. Defendant filed an appeal from the denial of his PCR. He presents the following issues for our consideration:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE WHETHER COUNSEL WAS INEFFECTIVE.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST-CONVICTION RELIEF.
B. THE TIME BAR OF R. 3:22-4 CONCERNING THE OPPORTUNITY TO RAISE CERTAIN ISSUES PREVIOUSLY RAISED DOES NOT APPLY TO DEFENDANT'S CASE.
C. THE FIVE YEAR TIME BAR SHOULD BE RELAXED DUE TO DEFENDANT'S EXCUSABLE NEGLECT AND/OR THE INTERESTS OF JUSTICE.
D. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO ADVISE DEFENDANT THAT HE HAD A RIGHT TO TESTIFY AT HIS JUVENILE WAIVER HEARING.
We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420-21 (2004) (citing Mickens- Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004); Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Where no evidentiary hearing has been held, we "may exercise de novo review over the factual inferences drawn from the documentary record by the [PCR judge]." Id. at 421 (citing Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991)). Thus, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court[.]"
Ibid. Where no credibility determinations have been made, "we invoke our original jurisdiction in the review of th[e] matter." Ibid. Such a review is appropriate here, as there was no evidentiary hearing and no credibility determinations were made.
This PCR application was filed October 16, 2008, over six and one-half years after the March 8, 2002 judgment of conviction, outside of the five-year period for first PCR petitions. See R. 3:22-12(a)(1). This rule was amended effective February 1, 2010 in several respects.*fn3
Paragraph (a)(1) was designated to apply to first petitions for relief making the defendant's excusable neglect exception subject to a reasonable probability of fundamental injustice test. Paragraph (a)(2) was designated for subsequent petitions, establishing a one year limitation from discovery of a factual predicate, Supreme Court ruling, or denial of application due to ineffective assistance of counsel. [Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 3:22-12 (2012).]
Defendant states that he filed a pro se petition in January 2007, within the five-year period, but "he never received a filed copy from the clerk." He offers no credible evidence of the 2007 filing for our consideration.
Defendant asserts that the five-year time bar should not be applied to him either as a result of excusable neglect or in the interest of justice. He argues that he has learning disabilities which would constitute excusable neglect for the late filing. He further posits that his trial counsel was ineffective during the juvenile waiver process, which resulted in his being tried as an adult, with the concomitant adult penal consequences.
Applications for PCR, "'New Jersey's analogue to the federal writ of habeas corpus,'" State v. Milne, 178 N.J. 486, 491 (2004) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)), are governed by Rule 3:22. PCR is not a substitute for direct appeal. R. 3:22-3. An application for PCR may not be filed more than five years after the judgment or sentence attacked "unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." R. 3:22-12(a)(1). Such a claim must be made in the application and alleged facts sufficient to support it. State v. Cann, 342 N.J. Super. 93, 102 (App. Div.), certif. denied, 170 N.J. 208 (2001). No such showing has been made here. Judge Jamie S. Perri, in her oral opinion denying defendant's PCR petition, noted the lack of any specific facts or circumstances regarding his condition which would excuse his failure to timely file his petition. Thus, defendant failed to show his neglect was excusable.
We have applied this rule to bar review of untimely PCR petitions. See State v. Cummings, 321 N.J. Super. 154, 166-67 (App. Div.) (refusing to excuse late PCR petition based on the defendant's purported difficulty with reading and writing and ignorance of right to seek PCR), certif. denied, 162 N.J. 199 (1999); State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div. 1998) (holding that a mistake of law does not amount to excusable neglect and a petition filed beyond five years is barred), aff'd as modified, 162 N.J. 240 (2000); State v. Dugan, 289 N.J. Super. 15, 22 (App. Div.) (same), certif. denied, 145 N.J. 373 (1996); State v. Miller, 277 N.J. Super. 122, 125, 129 (App. Div. 1994) (holding a petition filed six and one-half years after conviction is time-barred), certif. denied, 142 N.J. 449 (1995); State v. Jenkins, 221 N.J. Super. 286, 293 (App. Div. 1987) (holding a petition filed more than five years after judgment of conviction is time-barred), certif. denied, 113 N.J. 343 (1988), cert. denied, 488 U.S. 1032, 109 S. Ct. 843, 102 L. Ed. 2d 975 (1989). Defendant's application for PCR was clearly out of time even though he had more than five years to seek relief. Further he offers no "excusable neglect" for his untimely filing.
We next address the issue of defendant's assertion of ineffective assistance of counsel during the juvenile waiver process. Defendant grounds his argument on two main points. First, that his counsel did not inform him of his right to testify at the waiver hearing; and second, that counsel was ineffective by calling psychologist Dr. Paul Brala to testify on his behalf.
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test by establishing both that: (1) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
A court should grant an evidentiary hearing on a PCR petition if a defendant has presented a prima facie case of ineffective assistance of counsel. Preciose, supra, 129 N.J. at 462; see also State v. Goodwin, 173 N.J. 583, 596 (2002). However, "[i]f the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief . . . then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997) (internal citations omitted).
Defendant's contention that he was not advised of his right to testify at the waiver hearing is contradicted by the record before us. At the conclusion of the May 4, 2000 waiver hearing, defendant's counsel, in the presence of defendant, stated to the court, "I have to discuss with Mr. Veloz as to whether or not he is going to testify." This belies defendant's contention that he did not know he had the right to testify. On the next hearing date, defense counsel did not call Mr. Veloz.
Even if defendant was not so advised of his right to testify, he has not met his burden of demonstrating that his right to a waiver hearing was prejudiced such that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. See N.J.S.A. 2A:4A-26(a) (permitting the Family Part, on motion by the State, to waive its jurisdiction without the juvenile's consent in homicide cases).
Defendant also argues that his counsel was deficient as a result of calling Dr. Brala as an expert for the defense. Defendant offers no expert opinion concerning any deficiencies in Dr. Brala's testimony. To prevail, defendant must "do more than make bald assertions that he was denied the effective assistance of counsel." Cummings, supra, 321 N.J. Super. at 170. Consequently, defendant has not satisfied the first prong of the Strickland/Fritz test. See State v. Castagna, 187 N.J. 293, 314 (2006) (ineffective assistance requires a determination that counsel's conduct "fell outside of the wide range of professionally competent assistance considered in light of all of the circumstances of the case" (internal quotation marks and citation omitted)).
Defendant presents no facts to support even a prima facie contention of ineffective assistance of trial counsel. His arguments are without merit and, as such, warrant no further discussion. R. 2:11-3(e)(2). Defendant does not identify any new rule of constitutional law or other facts that would excuse his failure to raise these issues on a timely basis. Therefore, defendant's petition is time-barred.