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State v. Torres

Superior Court of New Jersey, Appellate Division

August 26, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
ANTHONY TORRES, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 21, 2013

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 93-07-02618.

Anthony Torres, appellant pro se.

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

Before Judges Waugh and Haas.

PER CURIAM

Defendant Anthony Torres appeals from the December 1, 2011 order of the Law Division denying his second petition for post-conviction relief (PCR). We affirm.

On July 13, 1993, defendant was charged in a nine-count Essex County indictment with two counts of third-degree possession of a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:35-10a(1) (counts one and five); three counts of third-degree distribution of CDS (heroin), N.J.S.A. 2C:35-5b(3) (counts two, six, and seven); three counts of third-degree possession with intent to distribute CDS (heroin) within 1, 000 feet of a school zone, N.J.S.A. 2C:35-7 (counts three, eight, and nine); and third-degree conspiracy to possess CDS (heroin) with intent to distribute, N.J.S.A. 2C:5-2 (count four). Pursuant to a plea-agreement, defendant pled guilty to third-degree conspiracy to possess heroin with intent to distribute (count four) and third-degree distribution of heroin (count six).

In accordance with the negotiated plea, on October 11, 1994, Judge Harold Fullilove merged count four into count six and sentenced defendant to three years in prison. The remaining counts of the indictment were dismissed and appropriate fines and assessments were imposed. Defendant did not file a direct appeal from his conviction and sentence.

Over fourteen years later, on October 8, 2008, defendant filed a PCR petition alleging, in part, that his trial counsel was ineffective because he did not apprise him of all of the collateral consequences of his guilty plea. On January 29, 2010, Judge Fullilove denied the petition and defendant did not file an appeal.

Almost two years later, on November 17, 2011, defendant filed a second petition for PCR, again asserting that his trial counsel was ineffective because he did not apprise him of the collateral consequences of his guilty plea. On December 1, 2011, Judge Michael Ravin denied defendant's petition in a thorough written opinion. The judge found that defendant's second PCR petition was barred by Rule 3:22-12(a)(2) because it had been filed more than one year after his first petition, which raised virtually identical arguments, had been denied. The judge further found that defendant's second PCR petition was also barred because it did not rely upon "a new rule of constitutional law, " did not assert any new facts that "could not have been discovered earlier through the exercise of reasonable diligence, " and did not allege that defendant's counsel on his first PCR petition had been ineffective. R. 3:22-4(b). This appeal followed.

On appeal, defendant argues he "was not made aware of the various collateral consequences as a result of him entering a guilty plea." Defendant is currently serving a sentence on federal charges and he alleges that his federal sentence was "enhanced" because of his 1994 conviction in Essex County. He asserts his trial counsel failed to advise him that he would face enhanced penalties if he were subsequently convicted of a federal charge. Defendant further claims that his trial counsel did not apprise him that, because of his guilty plea, he would not be permitted to obtain a firearms permit, obtain a commercial driver's license, or operate a New Jersey Transit vehicle. These arguments lack merit and we therefore affirm substantially for the reasons set forth in Judge Ravin's written opinion. We add the following comments.

Defendant waited over fourteen years to file his first PCR petition, in which he raised the identical arguments contained in his second petition. He did not file his second PCR petition until almost two years after his first petition was denied. Defendant has not established excusable neglect, exceptional circumstances, or facts demonstrating a serious question about his guilt. State v. Cummings, 321 N.J.Super. 154, 168-69 (App. Div.), ...


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