January 7, 2013
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTOPHER IRIZARRY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 96-02-0633 and 01-08-2458.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 19, 2012
Before Judges Axelrad and Haas.
Defendant Christopher Irizarry appeals from an August 25, 2010 order denying his petition for post-conviction relief (PCR). We affirm.
On April 29, 2006, defendant pled guilty to third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5b(3). On July 12, 1996, the judge sentenced defendant to a four-year term of probation.
On September 29, 1999, defendant pled guilty to third-degree attempted burglary, N.J.S.A. 2C:5-1 and 2C:18-2. On January 14, 2000, defendant was sentenced to three years in prison.
On March 11, 2002, defendant pled guilty to two counts of first-degree armed robbery, N.J.S.A. 2C:15-1. On May 10, 2002, the judge sentenced defendant as a second-degree offender to two, concurrent five-year prison terms, subject to the provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant did not file a direct appeal from any of these convictions and sentences.
On February 4, 2009, defendant filed papers with the court which were treated as a petition for PCR. His assigned counsel thereafter filed a supplemental brief. On August 20, 2010, Judge Anthony M. Pugliese held oral argument and determined an evidentiary hearing was not required. In a comprehensive oral opinion rendered on that date, the judge denied defendant's petition for PCR.
Judge Pugliese found that defendant's petition was time barred under Rule 3:22-12(a)(1) because it was filed more than five years after his convictions. Nevertheless, the judge addressed the merits of defendant's claims and found that he had not established that his trial attorneys had been ineffective. This appeal followed.
On appeal, defendant raises the following contentions:
POINT I [DEFENDANT'S] PRESENCE AT THE HEARING WAS MANDATED BECAUSE MATERIAL ISSUES OF FACT WITHIN HIS KNOWLEDGE WERE EVIDENT IN THE RECORD BUT WERE IGNORED BY ALL PARTIES[.] R. 3:22-10.
POINT II [DEFENDANT] WAS DENIED MEANIN[G]FUL COUNSEL IN THE PREPARATION OF HIS PLEADINGS SUBMITTED BEFORE THE PCR COURT. THE RECORD REVEALS MERITORIOUS CLAIMS THAT SHOULD HAVE BEEN ADVANCED ON BEHALF OF [DEFENDANT]. STATE V. WEBSTER,  N.J. 254, 257 (2006).
POINT III THE DICTATES MADATED BY STATE V. RUE, 175 N.J. 1 (2002) WERE ABANDONED BY PCR COUNSEL.
Our review of the record convinces us that the judge acted properly in denying defendant's petition for PCR.
Rule 3:22-12(a)(1) 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 excusable neglect. Ibid. 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) (citations omitted).
Judge Pugliese correctly held that defendant offered no facts that would establish the type of exceptional circumstances necessary for relaxation of the five-year filing requirement. Defendant merely asserted "it wasn't brought to his attention that he had an ineffective assistance of counsel and he didn't realize it until the 5 years had passed." Defendant provided no concrete facts in support of this allegation and it was properly rejected by the judge. Murray, supra. Defendant's three convictions occurred in 1996, 2000 and 2002. His 2009 petition was clearly untimely under Rule 3:22-12(a)(1).
On appeal, defendant no longer asserts that his petition was timely. Instead, he argues his PCR counsel provided ineffective assistance because he permitted the hearing to take place without defendant's presence; he failed to make arguments challenging his pleas; and he did not advance the arguments defendant presented in his original petition. These arguments lack merit.
Regarding a claim that PCR counsel was ineffective, the Supreme Court has stated:
PCR counsel must communicate with the client, investigate the claims urged by the client, and determine whether there are additional claims that should be brought forward. Thereafter, counsel should advance all of the legitimate arguments that the record will support. If after investigation counsel can formulate no fair legal argument in support of a particular claim raised by defendant, no argument need be made on that point. Stated differently, the brief must advance the arguments that can be made in support of the petition and include defendant's remaining claims, either by listing them or incorporating them by reference so that the judge may consider them. [State v. Webster, 187 N.J. 254, 257 (2006).]
"The remedy for counsel's failure to meet the[se] requirements . . . is a new PCR proceeding." State v. Hicks, 411 N.J. Super. 370, 376 (App. Div. 2010) (citing State v. Rue, 175 N.J. 1, 4 (2002)). "This relief is not predicated upon a finding of ineffective assistance of counsel under the relevant constitutional standard. Rule 3:22-6(d) imposes an independent standard of professional conduct upon an attorney representing a defendant in a PCR proceeding." Hicks, supra, 411 N.J. Super. at 376.
Defendant was serving a federal sentence on unrelated charges at the time of oral argument on the petition. PCR counsel explained that defendant was "not able to be writted in for this hearing. He was aware of that and through our office has I believe advised the Court that he was consenting for this proceeding to go on in his absence." In spite of this waiver, defendant now argues his presence at oral argument was "mandatory." We disagree.
Rule 3:22-10(a) specifically states that "[a] defendant in custody may be present in court in the court's discretion. The defendant shall be entitled to be present when oral testimony is adduced. However, the defendant's presence may be waived by counsel upon request of the defendant." That is exactly what happened in this case. Because no oral testimony was presented as part of the argument, defendant was not required to be present and his presence was waived as permitted by the Rule.
Defendant next argues his PCR counsel failed to work with him to develop arguments supporting a challenge to the guilty pleas that led to his convictions. Specifically, defendant asserts that his first plea could have been vacated because he was not advised he had a right to appeal his conviction and that his second plea was the result of coercion as evidenced by the "acrimonious tone" of the plea colloquy. These arguments are not supported by the record.
Contrary to defendant's contention, the sentencing judge specifically advised defendant of his right to appeal his 1996 conviction and sentence. The judge stated that "if [defendant's] unhappy with my determination he has the right to file an appeal. You have to do that within 45 days from today, sir. If you can't afford an attorney for those purposes, make an application to the court and an attorney may be appointed for you." In the judgment of conviction, the judge also advised defendant of his right to appeal in virtually identical language. Therefore, there is no factual basis for defendant's claim.
With regard to the 2000 conviction, the sentencing judge advised defendant and his attorney that he could not accept the plea agreement because he believed the offense warranted a State prison sentence. Defendant and his attorney conferred with the assistant prosecutor and arrived at a new agreement that was acceptable to the judge. The judge ensured that defendant was aware that he had no obligation to accept the plea offer and that he was entering into it "freely and voluntarily." The sentencing transcript therefore belies any claim that either the judge or defense counsel "forced" defendant to plead guilty.
Based on the plea and sentencing transcripts, Judge Pugliese found that defendant understood all of his rights at the time he pled, including his right to reject the plea offers and proceed to trial. The judge also found there was no evidence in the record to support defendant's contention that he was unaware of the consequences of his pleas and convictions. We discern no basis to disturb the judge's finding that defendant presented no strong reasons for seeking to overturn his pleas.
In addition, defendant did not provide a colorable claim of actual innocence, which is a key consideration in evaluating whether his PCR counsel should have argued that his pleas should have been vacated. State v. Munroe, 210 N.J. 429, 442-43 (2012); State v. Slater, 198 N.J. 145, 157-58 (2009). He provided a sufficient factual basis for each of the offenses to which he pled.
We are unable to assess the full extent of any prejudice to the State if the pleas were vacated, but again note the passage of sixteen, twelve and ten years since defendant accepted the State's offers in each of his three cases. Under these circumstances, where defendant can not establish any "manifest injustice" from leaving the pleas undisturbed, PCR counsel was not ineffective in his presentation of defendant's petition on these issues. Slater, supra, 198 N.J. at 158 (where the defendant files a motion to vacate a plea after sentencing, he or she has the burden of demonstrating that "manifest injustice" will occur if the plea is not vacated).
Finally, defendant's argument that his PCR counsel failed to properly advance defendant's own contentions also lacks merit. As required by Webster, PCR counsel incorporated defendant's arguments by reference so that Judge Pugliese could consider them. Supra, 187 N.J. at 257; see also Rue, supra, 175 N.J. at 18-19. Counsel's brief clearly states: "[Defendant's] pro-se petition filed with the court is repeated and incorporated in its entirety." Judge Pugliese also considered, and rejected, the arguments concerning the validity of the guilty pleas that were raised by defendant in his own submission.
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