July 3, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
FRIAS OZORIA-AMBIORIX, a/k/a FRIAS OZONIA-AMBIERIX, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 8, 2013
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 02-12-3039.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Senior Assistant Prosecutor, of counsel and on the brief).
Before Judges Espinosa and Guadagno.
Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.
Defendant was convicted by a jury of first-degree armed robbery in July 2003. He was sentenced to fifteen years imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, and parole supervision for five years in June 2005.
Defendant appealed, raising the following arguments:
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL AS A RESULT OF QUESTIONING BY THE PROSECUTOR WHICH ELICITED TESTIMONY ASSOCIATING THE DEFENDANT WITH IMPECUNIOSITY.
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL AS TO COUNT I CHARGING ROBBERY.
THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY BY INFERENTIALLY COMMENTING UPON THE DEFENDANT'S FIFTH AMENDMENT PRIVILEGE. (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN INSTRUCTING THE JURY REGARDING FLIGHT.
THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF COUNT I WAS INCONSISTENT, ILLOGICAL AND THE RESULT OF COMPROMISE.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
We affirmed his convictions and sentence in an unpublished opinion. State v. Ozonia-Ambierix, No. A-6520-04 (App. Div. April 25, 2008). The Supreme Court denied his petition for certification, 196 N.J. 461 (2008). The facts underlying defendant's convictions are set forth in our opinion and need not be repeated here.
Defendant filed a PCR petition on November 15, 2010, supported by a certification in which he stated:
1. I am currently in custody at South Woods State Prison, and I am petitioning for post-conviction relief on the above-captioned matter.
2. My PCR was filed five months late because I do not speak any English, I was not aware of the PCR time limitation, and it was difficult to find a bilingual inmate willing to help me prepare the necessary documents.
3. My trial attorney originally met with me to discuss a probationary plea offer. She said she would give me time to consider the offer, but I did not see or hear from her again until I was brought back to court for the beginning of trial.
4. I might have accepted the offer if I had a further opportunity to discuss the matter with my attorney.
5. To my knowledge, my attorney conducted no factual investigation. Had she done so, she would have discovered evidence supporting the defense of mistaken identity because I did not commit the charged offense.
In his brief in support of the petition, defendant presented the following arguments:
THE PROSECUTOR'S OPENING STATEMENT EXCEEDED THE BOUNDS OF PROPRIETY AND WAS SO EGREGIOUS AS TO DEPRIVE DEFENDANT OF A FAIR TRIAL.
THE TRIAL COURT ERRED BY ALLOWING THE PROSECUTOR DURING DIRECT EXAMINATION ON SEVERAL OCCASIONS TO ELICIT HIGHLY INFLAMMATORY AND PREJUDICIAL EVIDENCE BEFORE THE JURY DEPRIVING DEFENDANT OF A FAIR TRIAL.
THE TRIAL COURT ERRED BY ALLOWING THE PROSECUTOR DURING SUMMATION TO COMMENT AND SPECULATE ON IRRELEVANT PREJUDICIAL FACTS NOT IN EVIDENCE CONSTITUTING PROSECUTORIAL MISCONDUCT AND DEPRIVING DEFENDANT OF A FAIR TRIAL.
TRIAL COUNSEL FAILED TO OBJECT TO PROSECUTOR'S PREJUDICIAL STATEMENTS AND APPELLATE COUNSEL FAILED TO ADEQUATELY PRESENT THE ERRORS MADE BY THE TRIAL COURT RENDERING INEFFECTIVE ASSISTANCE OF COUNSEL.
The PCR court denied defendant's petition by order dated May 24, 2011.
Defendant presents the following issues for our consideration in his appeal:
THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS DENIED BY APPELLATE COUNSEL'S FAILURE TO RAISE THE ISSUE OF THE IMPROPER ADMISSION OF IMPERMISSIBLY SUGGESTIVE AND UNRELIABLE IDENTIFICATION EVIDENCE.
A. APPELLATE COUNSEL WAS INEFFECTIVE.
B. THE IDENTIFICATION EVIDENCE SHOULD HAVE BEEN SUPPRESSED.
TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE AT SENTENCING.
THE TRIAL COUNSEL WAS INEFFECTIVE AS A RESULT OF HIS FAILURE TO INVESTIGATE THE MATTER.
COUNSEL FAILED TO COMMUNICATE WITH HIS CLIENT AS REQUIRED BY THE RULES OF PROFESSIONAL RESPONSIBILITY OF THE STATE OF NEW JERSEY.
THE FIVE-YEAR TIME BAR SHOULD BE RELAXED DUE TO DEFENDANT'S EXCUSABLE NEGLECT.
THE DEFENDANT INCORPORATES BY REFERENCE THE ARGUMENTS ADVANCED IN HIS PRO SE PETITION FOR POST-CONVICTION RELIEF.
We are not persuaded by any of these arguments and affirm. As defendant concedes, his PCR petition was untimely. Rule 3:22-12(a)(1) provides:
[N]o petition shall be filed pursuant to this rule more than 5 years after the date of entry pursuant to Rule 3:21-5 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 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.
Defendant contends that his delay was due to excusable neglect and, therefore, the five-year limitation should be relaxed. His claim of excusable neglect is based upon his assertions that he does not speak English, was unaware of the time limitation, and had difficulty finding a fellow inmate who was bilingual, willing, and able to help him with filing his petition.
"[A] court may relax the time bar if the defendant alleges facts demonstrating that the delay was due to the defendant's excusable neglect or if the 'interests of justice' demand it." State v. Goodwin, 173 N.J. 583, 594 (2002) (citing State v. Mitchell, 126 N.J. 565, 576 (1992)). To be entitled to a relaxation of the rule based upon excusable neglect, the petitioner must "allege facts demonstrating that the delay was due to the defendant's excusable neglect[, ]" and, "[i]f the petitioner does not allege sufficient facts, the Rule bars the claim." Mitchell, supra, 126 N.J. at 576. "The concept of excusable neglect encompasses more than simply providing a plausible explanation for a failure to file a timely PCR petition." State v. Norman, 405 N.J.Super. 149, 159 (App. Div. 2009).
The facts presented by defendant provide no more than a plausible explanation for his delay. He has also failed to show that the interests of justice demand relaxation of the rule.