January 23, 2013
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ELIU SANTANA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 97-06-1631.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 15, 2013
Before Judges Harris and Hoffman.
Defendant Eliu Santana appeals from the Law Division's November 7, 2011 order denying his application for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
In 1997, Santana was indicted by a Camden County grand jury for several drug-related and weapons offenses that occurred on September 6, 1996, in Camden. Eight years passed before the matter was resolved, mainly because Santana was incarcerated in Puerto Rico since at least February 4, 1997, when he was sentenced there to a fifty-year term of imprisonment for second-degree murder.
On September 6, 2005, Santana was returned to New Jersey where he pled guilty to a single count of third-degree possession of a controlled dangerous substance with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7. In exchange for the guilty plea, the State agreed to dismiss the remainder of the charges contained in the indictment, and promised to recommend a sentence of three years imprisonment with a three-year parole disqualifier, to be served consecutively to the fifty-year sentence that was imposed in Puerto Rico.
Because "he would be able to be returned to the
[C]ommonwealth of Puerto Rico as soon as [the parties were] done here with the plea," Santana waived his right to appear in person at the time of sentencing. Additionally, he declined to make a statement during the plea allocution, other than to provide a factual basis for the plea and answer several questions touching upon his understanding of the terms of the plea arrangement and his voluntary acceptance of its terms and conditions. On October 17, 2005, in Santana's absence, the sentencing judge imposed the consecutive sentence in accordance with the plea arrangement. No direct appeal was filed.
On December 9, 2009,*fn1 the Puerto Rico Parole Board denied "the privilege of parole to [Santana]," citing two reasons for its decision: (1) "he has a pending sentence to complete in the State of New Jersey" and (2) the "Housing, Offer of Employment and the Advisor friend Candidate submitted by [Santana] have not been confirmed by the corresponding Community Program." According to the written explanation for the denial of parole, "the power to grant the privilege of parole to an incarcerated person in a penal institution in Puerto Rico" takes into account at least eleven discrete factors, only one of which involves the inmate's criminal history. All of these factors are weighed in the Parole Board's evaluation of whether such "privilege shall be granted to an inmate in the best interest of society and when circumstances establish that such a measure will achieve moral and economic rehabilitation of the inmate." The Parole Board's decision explicitly stated that it would "reconsider in August 2010, on which date the Corrections Administration must submit an updated Adjustment and Progress report and a Parole report with a confirmed release plan."
On August 27, 2010,*fn2 the Parole Board again denied Santana's application for parole, finding similar reasons to those expressed in December 2009 -- the pending New Jersey sentence, unsuitable housing, and an inappropriate "advisor friend" -- as militating against granting parole. The Parole Board indicated that it would "reconsider the case in June 2011," requiring "the Corrections Administration [to] submit an updated Adjustment and Progress report, a Short Parole Report with confirmed release plan, an updated Rehabilitation and Treatment Department evaluation or other qualified division and the social and criminal files of [Santana]."
On March 22, 2011, Santana filed the present PCR application in the Law Division. In a memorandum supporting the application, Santana argued that his plea counsel was ineffective because he (1) "allowed Mr. Santana to plead guilty so that the indictment would be dismissed against another person," (2) "[a]llowed Mr. Santana to plead guilty for a sentence consecutive to a 50[-]year sentence thereby creating an excessive sentence; and (3) "[s]imultaneously represented both Mr. Santana and his wife Mrs. Marquez in the same indictment."
Santana supplemented the application by submitting translated records of the Puerto Rico Parole Board, as well as a July 25, 2011 English-language letter from Damian F. Planas Merced, an attorney practicing law -- "Practica Criminal, Civil y Administrativa Especializada" -- in Puerto Rico. Merced's letter contained some inaccurate factual information. For instance, he wrote, "[t]he Puerto Rico Sentence was on February 4, 1997, then Mr. Santana left the jurisdiction and committed the offense [for which he] was sentenced in New Jersey." However, the primary gist of Merced's commentary was less factual in nature, as he expressed the opinion that the New Jersey sentence was the proximate cause of Santana's parole denial in Puerto Rico. Merced wrote, "probably the Honorable Court of New Jersey did not know the irreversible and most adverse effect Mr. Santana's three[-year] consecutive Sentence [would] have in his rehabilitation process." Also,
The fact is that the three  years Sentence of New Jersey [is]  taking first hand effect in the Puerto Rico Sentence, is damaging and absorbing it completely. All the possible benefits Mr. Santana can have now after Fourteen [years] in jail  vanished because [of] the existence of a consecutive and most recent Sentence.
The PCR judge reviewed the application, and issued a twelve-page written decision denying post-conviction relief. First, the judge found that the five-year limitation of Rule 3:22-12 had not been satisfied and there were neither extraordinary circumstances nor a demonstration of excusable neglect to warrant relaxation extending the time to file the PCR application. Second, the judge found that the claim of an excessive sentence was barred by Rule 3:22-3 because it was reviewable on direct appeal, and Santana had waived such direct appeal. Finally, the judge determined that a prima facie claim of ineffective assistance of counsel had not been demonstrated. Specifically, the judge found that there were no facts to support the unsubstantiated assertions that (1) plea counsel had a conflict of interest and (2) an unspoken component of the plea agreement was the dismissal of charges against another individual. Moreover, there was no evidence to suggest that the three-year sentence imposed in New Jersey was excessive merely because it was adversely affecting Santana's parole consideration in Puerto Rico. An order memorializing the judge's conclusions was entered on November 7, 2011. This appeal followed.
On appeal, Santana raises the following issues for our consideration:
POINT I: THE TRIAL COURT MISAPPLIED THE FIVE YEAR TIME BAR.
POINT II: THE TRIAL COURT MISCHARACTERIZED DEFENDANT'S PETITION AS RIPE FOR APPELLATE, RATHER THAN POST CONVICTION RELIEF.
POINT III: THE TRIAL COURT IGNORED DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL (RIGHT TO COUNSEL) CLAIMS.
The primary issue confronting us is whether Santana's attorney and the plea court failed to properly advise him -- at the time of the plea allocution -- of the effect of the New Jersey sentence on the parole prospects related to the sentence he was already serving in Puerto Rico. We are satisfied that the record fails to provide a prima facie basis to conclude that Santana suffered the ineffective assistance of counsel. Moreover, he was not entitled to an evidentiary hearing in the absence of a prima facie case, and we have no reason to quarrel with the balance of the Law Division's decision.
To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the so-called Strickland/Fritz*fn3 test. State v. Preciose, 129 N.J. 451, 463-64 (1992). Under this two-part test, a defendant must first establish that counsel's performance was deficient by showing that "counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Secondly, a defendant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
"A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459. To sustain that burden, specific facts which "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992). Merely raising a claim does not, however, entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). "[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." Ibid. A court reviewing a PCR application "'that does not allege facts sufficient to sustain that burden of proof should not jump to its own conclusions regarding the factual circumstances of the case.'" State v. Weil, 421 N.J. Super. 121, 131 (App. Div. 2011) (quoting Mitchell, supra, 126 N.J. at 579).
The record presented to us contains little relevant information that would establish either the performance or prejudice prongs of Strickland. Although the decisions of the Puerto Rico Parole Board clearly link the two denials of parole to the New Jersey sentence, other reasons supporting the denials were present as well, including questions about Santana's prospective housing, employment, and support resources in the community. Merced's letter, assuming it could qualify as a nonnet expert opinion under N.J.R.E. 702, does not indicate the inevitability of a denial of parole due to the New Jersey sentence. Because the Puerto Rico Parole Board indicated other reasons for its determination and that it would continue to review Santana's case on a regular basis, we fail to see how the New Jersey sentence stands as an impenetrable barrier to the privilege of parole in Puerto Rico.
Also, there is no evidence to indicate the state of the law in Puerto Rico regarding the parole implications of foreign consecutive sentences at the time Santana pled guilty. Merced does not cite any treatises, decisional law, or other authority for his conclusion that [t]he New Jersey Sentence in fact, is going to be served over and over again until November 13, 2022, that effect is an unusual punishment because it deprives Mr. Santana of his opportunity to enjoy other gratifications outside the jail that he already earned, but he can not get, because the State of Puerto Rico will hide behind the fact that Mr. Santana does have a consecutive Sentence from New Jersey.
Expert opinion is not admissible if it is only a personal opinion without supporting facts or authority. Riley v. Keenan, 406 N.J. Super. 281, 295-96 (App. Div.), certif. denied, 200 N.J. 207 (2009). An expert witness must state the factual bases for his or her conclusions, explain the methodology used to reach those conclusions, and "be able to point to generally accepted, objective standards of practice and not merely standards personal to [the expert]." Ibid. A standard of conduct that is personal to the expert or idiosyncratic and not based on supporting authority in the field of expertise is "equivalent to a net opinion." Kaplan v. Skoloff & Wolfe, P.C., 339 N.J. Super. 97, 103 (App. Div. 2001). From what we gather through Merced's writings, it appears that if Santana has a grievance, it is mainly with the Puerto Rico authorities, not with his New Jersey sentence or prior attorney.
Also, there is nothing in the record that draws the contours of what a New Jersey attorney, in 2005, should have advised his client concerning the effects of a consecutive sentence here on future parole opportunities in Puerto Rico. Notably, Santana did not submit an affidavit outlining the nature of the advice and information given to him by his plea counsel in 2005. Indeed, the record reflects that the plea form signed by Santana on September 6, 2005 asked him the following questions:
10. Are you presently serving a custodial sentence on another charge?
a. Do you understand that a guilty plea may affect your parole eligibility?
Santana answered both questions in the affirmative. Clearly, Santana was aware that his plea and sentence would have some effect in Puerto Rico. His failure to indicate that he was misled into pleading guilty is fatal to his claim of ineffective assistance of counsel.
The PCR judge found that Santana's application was untimely. This was a correct determination based upon the record. The New Jersey judgment of conviction was issued on October 17, 2005. In December 2009, or shortly thereafter, Santana learned that his parole application was denied by the Puerto Rico Parole Board, yet he did not attempt to vindicate his putative rights in New Jersey for more than a year. Even after the second parole denial in August 2010, Santana inexplicably failed to initiate an application for PCR in New Jersey until March 2011.
Generally, a defendant's first PCR petition must be filed within five years of the date the judgment of conviction is entered, "unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time-bar would result in a fundamental injustice." R. 3:22-12(a)(1). Santana's application did not explain the reason for his late filing, and his argument on appeal that the "delay in filing . . . was a mere five months" is unpersuasive.
In assessing Santana's PCR application, we balance the competing interests of the State in achieving "finality to pleas," State v. Smullen, 118 N.J. 408, 416 (l990), and the potential prejudice to the State and detriment to the public interest occasioned by the fifteen-year lag between the events alleged in the indictment and the filing of the PCR application, with defendant's entitlement "to fairness and protection of basic rights." State v. Taylor, 80 N.J. 353, 365 (l979). We are satisfied that Santana must establish that he is entitled to relaxation of Rule 3:22-12's time limit and must also allege facts sufficient to establish a prima facie case for relief under the Strickland/Fritz paradigm. Santana has failed to carry his burden. Accordingly, his PCR application was properly denied by the Law Division.
We have considered Santana's remaining arguments and find them without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We conclude from our examination of the record that the PCR judge correctly applied the controlling legal principles and that Santana was not entitled to an evidentiary hearing.