October 16, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
EDUARDO VARGAS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 7, 2013
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 95-03-0399.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Miriam Acevedo, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
Before Judges Harris and Kennedy.
Defendant Eduardo Vargas appeals from the Law Division's denial of his application for post-conviction relief (PCR). We affirm.
On January 16, 1996, after entering into a plea arrangement, Vargas was convicted of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4, and second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). Pursuant to the plea, Vargas was sentenced to an aggregate term of forty years with fifteen years of parole ineligibility. On October 8, 1997, we affirmed the sentence at an Excessive Sentencing Oral Argument calendar. R. 2:9-11.
On May 13, 2010, Vargas filed a pro se application for PCR. In his brief, Vargas contended that he understood the contours of the sentence to be as follows:
[Vargas] would be sentenced to 30 years with a mandatory minimum of 15 years on the aggravated manslaughter, and with a concurrent 10-year term on the aggravated assault. It was explained to defendant that the sentences would run together and that the 15-year mandatory minimum was required.
He asserted that "back in 1994 and 1995" he did not "fully understand the English language, " and he was misled at the time of the plea due to the confusing use of the words, "'concurrent, ' 'consecutive, ' 'flat, ' and the bottom line parole ineligibility being 15 years."
Vargas further contended that after serving the fifteen-year parole disqualifier, "the parole board imposed an additional 10-year future eligibility term which is the maximum of the second sentence that the Court ordered as a 'flat' sentence and which [he] was under the impression that it would run together with the thirty years." The realization that he would have to serve more than fifteen years was the impetus for his PCR application, and was the basis for "pleading excusable neglect" in not filing the application "within five years of [his] sentencing."
The Law Division reviewed the application and ultimately ruled, "[t]his petition was filed fourteen years after petitioner's sentencing date. Petitioner has failed to provide the court with an acceptable reason to relax the five year . . . time bar." Notwithstanding that conclusion, the court addressed the merits of Vargas's ineffective-assistance-of-counsel claim, which was founded on the contention that defense counsel "failed to adequately explain that consecutive sentences meant in addition to instead of running together."
The PCR judge noted that during the plea allocution hearing the State "recited its intention to seek to have [the] sentences . . . run consecutively and not concurrently." Also, the plea form, which was signed by Vargas, stated the following:
30 w/15 minimum on Ct. 1 and 10 w/5 minim. on Ct. 4 to run consecutive.
Most important, the PCR court observed that the plea judge had discussed a possible forty-year sentence with Vargas directly:
THE COURT: Do you understand that by pleading guilty, you are subjecting yourself not only to this aggravated manslaughter charge but the aggravated assault. You are subjecting yourself to a maximum sentence of 30 with 15 on the aggravated manslaughter, 10 with five years on the aggravated assault, and the State would be seeking a consecutive sentence which would bring it up to 40 years with 20 years before you would be eligible for [p]arole which would be your maximum sentence.
Do you understand that?
In light of all of this uncontroverted evidence, the PCR court concluded that "there is nothing to suggest that trial counsel's performance was deficient, " and "this court finds that [Vargas] did understand" the nature of the potential maximum sentence. Accordingly, on April 26, 2012, an order denying PCR was entered. This appeal followed.
Defendant presents the following issues for our consideration:
POINT I: DEFENDANT'S PCR PETITION SHOULD NOT HAVE BEEN TIME-BARRED.
POINT II: THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVENESS OF COUNSEL, IN THAT TRIAL COUNSEL MISINFORMED DEFENDANT REGARDING THE MAXIMUM TERM OF HIS SENTENCE AND THE MEANING OF "CONSECUTIVE" SENTENCE.
We find these contentions not supported by the record and wholly without merit.
Under Rule 3:22-12(a)(1), a first application for PCR must be filed no more than five years after entry of the judgment of conviction "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." As our Supreme Court has explained:
There are good reasons for such a Rule. As time passes after conviction, the difficulties associated with a fair and accurate reassessment of the critical events multiply. Achieving "justice" years after the fact may be more an illusory temptation than a plausibly attainable goal when memories have dimmed, witnesses have died or disappeared, and evidence is lost or unattainable. . . . Moreover, the Rule serves to respect the need for achieving finality of judgments and to allay the uncertainty associated with an unlimited possibility of relitigation.
[State v. Mitchell, 126 N.J. 565, 575-76 (1992).]
Vargas filed his petition out of time, more than fourteen years after entry of the January 16, 1996 judgment of conviction. He posits the existence of excusable neglect because of a supposed language barrier that existed "back in 1994 and 1995, " and the more recent action of the parole board in denying him parole. These explanations do not surmount the "rigorous" five-year time limit for filing PCR applications. State v. Murray, 162 N.J. 240, 249 (2000); see also State v. DiFrisco, 187 N.J. 156, 165-67 (2006) (holding that the five-year time period is generally neither stayed nor tolled by an appellate or other proceeding); State v. Merola, 365 N.J.Super. 203, 218 (Law Div. 2002) ("Ignorance of the law and rules of court does not qualify as excusable neglect."), aff'd, 365 N.J.Super. 82 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
"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). More exactly, excusable neglect can be established only "'under exceptional circumstances' because '[a]s time passes, justice becomes more elusive and the necessity for preserving finality and certainty of judgments increases.'" State v. Goodwin, 173 N.J. 583, 594 (2002) (quoting State v. Afanador, 151 N.J. 41, 52 (1997)). To be entitled to a relaxation of the Rule based upon a showing of excusable neglect, defendant is obliged to "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. That is what happened here.
We further conclude that Vargas would not suffer a fundamental injustice if the five-year time limit were enforced, as his substantive claim lacks merit. "For a defendant to establish a case of ineffective assistance of counsel, the defendant must show that '[defense] counsel's performance was deficient, ' and that 'there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Nunez-Valdez, 200 N.J. 129, 138-39 (2009) (quoting State v. Preciose, 129 N.J. 451, 463-64 (1992)). See also Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984).
"[T]here is 'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" State v. Echols, 199 N.J. 344, 358 (2007) (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694). Moreover, a "challenged error must be so serious as to undermine the court's confidence in defendant's conviction." Id. at 359. Vargas bears the burden of proof to establish the grounds for PCR by a preponderance of the credible evidence. Id. at 357.
"When a defendant has entered into a plea agreement, a deficiency is prejudicial if there is a reasonable probability that, but for counsel's errors, the defendant would . . . have decided to forego the plea agreement and would have gone to trial." State v. McDonald, 211 N.J. 4, 30 (2012). We agree with the PCR court that Vargas made no prima facie case of ineffective assistance of counsel. All of the available evidence is convincing that Vargas was alerted numerous times —— before the plea arrangement became effective —— that he was exposed to a maximum sentence of greater than thirty years due to the potential imposition of consecutive terms for aggravated manslaughter and aggravated assault relating to separate victims. The record lacks any evidence that defense counsel misled Vargas, or that Vargas was somehow confused about his sentencing exposure. Therefore, the PCR court properly denied the application without holding an evidentiary hearing.