August 13, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROGELIO TAPIA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-12-2491.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 6, 2012
Before Judges Ashrafi and Hayden.
Defendant Rogelio Tapia appeals the March 11, 2010 order denying his second petition for post-conviction relief (PCR). Having considered his arguments in light of the record and the applicable legal principles, we affirm.
The record reveals that on May 12, 2003, a jury convicted defendant, along with his co-defendants Eduardo and Miguel Tapia, of second-degree conspiracy to commit kidnapping, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:13-1; first-degree kidnapping, N.J.S.A. 2C:13-1b; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree possession of a prohibited weapon, N.J.S.A. 2C:39-5d. The indictment was based on an incident in which defendant, along with four family members, had lured the victim to a parking lot, forcibly transferred him to another location, and severely beaten him for having an affair with defendant's brother's girlfriend.
On June 18, 2003, defendant received an aggregate sentence of fifteen years with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appealed the conviction and sentence, arguing that his convictions on the charge of conspiracy to commit kidnapping, possession of a weapon for an unlawful purpose, and possession of a prohibited weapon should be reversed as the verdicts were against the weight of the evidence. We rejected these arguments and affirmed defendant's convictions. State v. Tapia, No. A-1021-03 (App. Div. June 9, 2003), certif. denied, 185 N.J. 295 (2005).
On January 6, 2006, defendant filed his first PCR petition, which the PCR judge denied on January 26, 2007, without an evidentiary hearing. On April 10, 2007, defendant filed an appeal of the denial, raising the following points.
POINT I: DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
A. Defendant Was Denied Effective Assistance of Counsel When His Trial Attorney Failed to Object to Prejudicial And Improper Remarks Made by The Prosecutor During His Summation And When Appellate Counsel Failed to Raise This Issue on Direct Appeal.
B. Defendant Was Denied Effective Assistance of Counsel When His Trial Attorney Failed to Object to Misstatements of Law to The Jury During His Summation.
C. Defendant Was Denied Effective Assistance of Counsel When His Trial Attorney Failed to Call Julianna Cohetero as a Witness.
POINT II: THE FIVE-YEAR PAROLE SUPERVISION EXTENDED DEFENDANT'S SENTENCE FROM 15 YEARS TO AN OVERALL 20 YEARS, IN VIOLATION OF APPRENDI, BLAKELY, NATALE, FRANKLIN AND ABDULLAH. WHEREFORE DEFENDANT SHOULD BE RE-SENTENCED TO 10 YEARS WITH THE FIVE-YEAR PAROLE SUPERVISION TO ARRIVE AT THE TERM OF 15 YEARS, IN THE ALTERNATIVE OF THE NERA SENTENCING BEING UPHELD.
POINT III: DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF EFFECTIVE CROSS-EXAMINATION OF HIS MAIN ACCUSER BY THE STATE'S FAILURE TO REVEAL HIS TRUE IDENTITY AND PROVIDE HIS CRIMINAL RECORD FOR IMPEACHMENT PURPOSES, WHEREFORE POST-CONVICTION RELIEF MUST BE GRANTED.
On January 20, 2009, we affirmed the order denying the PCR petition. State v. Tapia, No. A-4158-06 (App. Div. January 20, 2009), certif. denied, 199 N.J. 516 (2009). On June 15, 2009, defendant filed a second petition for PCR, claiming that he had received ineffective assistance of counsel because: 1) trial counsel failed to request a Miranda*fn1 hearing; 2) trial counsel failed to investigate and call witnesses on defendant's behalf; and 3) trial and appellate counsel failed to object to the jury instructions on first-degree kidnapping and second-degree conspiracy to commit kidnapping.
On March 11, 2010, Judge Ira E. Kreizman denied defendant's second PCR petition without an evidentiary hearing. Judge Kreizman found that the petition, filed more than six years after defendant's conviction, was time-barred pursuant to R. 3:22-12, because it was not filed within five years of the rendition of judgment or sentence sought to be attacked, and defendant did not present any facts showing excusable neglect. Further, the judge found that the claims were also procedurally barred by Rule 3:22-4. First, the judge observed that all defendant's claims were based upon occurrences at trial and were known to defendant in time to be raised on direct appeal. Additionally, the judge pointed out that the alleged incidences of ineffective assistance of counsel were not newly discovered and should have been made in the first post-conviction application.
Despite finding the petition procedurally barred, Judge Kreizman addressed the merits of defendant's contentions and determined that defendant failed to establish a prima facie case of ineffective assistance of counsel. After reviewing defendant's contentions, the judge found that defendant had failed to show that his counsel's representation was in any way deficient or that, but for his counsel's actions or inactions, the result of the proceedings would have been different. This appeal followed.
On appeal, defendant raises the following contention:
POINT ONE: PETITIONER, ROGELIO TAPIA, WAS SYSTEMATICALLY DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL WAIVED THE RIGHT TO A MIRANDA HEARING TO DETERMINE WHETHER OR NOT HIS STATEMENT TO POLICE WAS VOLUNTARY OR INVOLUNTARILY GIVEN.
Post-conviction relief constitutes "New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). To protect against courts addressing endless issues in a piecemeal fashion, certain procedural rules govern PCR petition filings. Rule 3:22-12(a) imposes a five- year limitation on filing a petition after the judgment sought to be attacked. Although the time limitations are not absolute and may be waived to prevent a fundamental injustice, the rule must be viewed in light of its dual key purposes to ensure that the passage of time does not prejudice the State's retrial of a defendant and to respect the need for achieving finality. State v. DiFrisco, 187 N.J. 156, 166-67 (2006). Moreover, a PCR petition is not a substitute for an appeal of a conviction, Rule 3:22-3, and any available ground for relief not asserted in a prior proceeding is barred if it could have been raised earlier, Rule 3:22-4, or was asserted earlier, Rule 3:22-5.
We have considered defendant's arguments and the applicable law, and we conclude that the arguments advanced by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Kreizman in his March 11, 2010 opinion. We add the following comments.
Defendant's PCR petition, filed six years after the judgment of conviction without any claim of excusable neglect, is clearly time-barred. R. 3:22-12. We also agree with the trial judge that the present claims are barred by Rule 3:22-4 as they could have been raised either on direct appeal or in defendant's previous PCR petition.
Moreover, in order to obtain relief on an ineffective assistance of counsel claim, a defendant must show both that his counsel's performance was deficient and that counsel's performance prejudiced his defense. State v. Fritz, 105 N.J. 42, 58 (1987) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). We are in accord with Judge Kreizman that defendant offered nothing more than bald assertions of ineffective assistance. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).