IN RE THE MATTER OF ALEX RODRIGUEZ (94-09-1065, PASSAIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5148-18
IN RE THE MATTER OF
ALEX RODRIGUEZ.
______________________
Submitted February 10, 2021 – Decided March 17, 2021
Before Judges Rose and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment Number 94-09-
1065.
Alex Rodriguez, appellant pro se.
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Mark Niedziela, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Alex Rodriguez, who is pro se, appeals from a July 11, 2019
order denying his second petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
I.
In 1994, defendant was indicted in a two-count complaint for second-
degree sexual assault, N.J.S.A. 2C:14-2(c), and second-degree endangering the
welfare of a child, N.J.S.A. 2C:24-4, for sexually assaulting his eleven-year-old
niece. The child recanted her statement and moved to Florida. Anticipating the
victim would be uncooperative, the prosecutor offered a three-year term of
imprisonment to defendant in exchange for his guilty plea. The State also agreed
to dismiss count one.
On December 8, 1994, pursuant to the terms of the plea agreement,
defendant pled guilty to count two, as amended to third-degree endangering the
welfare of a child, N.J.S.A. 2C:24-4(a). Defendant testified at his plea
allocution hearing that he touched the "butt" of his niece, "with the intent of
stimulation." When questioned why he was pleading guilty, defendant
responded, "because I am guilty."
On February 10, 1995, defendant was sentenced in accordance with the
negotiated plea agreement to a three-year term of imprisonment. He was also
ordered to comply with all registration requirements under Megan's Law,
N.J.S.A. 2C:7-1 to -19, parole supervision for life, N.J.S.A. 2C:43-6.4, and was
assessed mandatory fines and penalties.
A-5148-18
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Defendant did not file a direct appeal of his conviction or sentence. On
October 16, 2015, more than twenty years after he was sentenced, defendant
filed his first PCR petition, alleging ineffective assistance of sentencing counsel.
In his initial petition, defendant claimed his counsel pressured him to plead
guilty because "it would be three years before [he went] to trial" and he could
"spend a very long time, maybe [twenty] years in jail" if found guilty.
Additionally, defendant contended he did not discover his ability to file
for PCR until 2015. Defendant also insisted the agency formerly known as the
Division of Youth and Family Services (DYFS) 1 had investigated the incident
and determined he did not commit a sexual offense against his niece. And, for
the first time, defendant claimed he suffered from a mental illness and had been
taking medication at the time of his plea hearing that impaired his judgment. On
October 25, 2016, a prior PCR court heard oral argument on defendant's petition
and denied relief. 2
1
A reorganization of the Department of Children and Families under L. 2012,
c. 16, effective June 29, 2012, changed the name of the Division of Youth and
Family Services to the Division of Child Protection and Permanency.
2
The transcript from defendant's first PCR hearing is not included in his
appendix.
A-5148-18
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On January 11, 2017, defendant appealed the PCR denial. State v. Alex
Rodriguez, No. A-001833-16 (App. Div. Mar. 6, 2018). We summarily
affirmed, concluding defendant's appeal was time-barred under Rule 3:22-
12(a)(1) and his claim of ineffective assistance of counsel was nothing more
than a bald assertion insufficient to sustain his claim.
On June 3, 2019, defendant filed his second PCR petition renewing his
prior arguments adjudicated on appeal. The PCR court denied defendant's
second PCR petition without conducting an evidentiary hearing. In a cogent
two-page letter decision, the PCR court relied on Rule 3:22-4(b) and noted that
defendant's petition was untimely under Rule 3:22-12(a)(2). The PCR court also
determined that defendant failed to provide sufficient evidence to invoke one of
the codified exceptions to the temporal limit provided under Rule 3:22-4(b)(2),
and noted "the issues [defendant] raise[s] have been previously adjudicated in
[his] first [PCR] motion and thereafter on appeal." A memorializing order was
entered on July 11, 2019. This appeal followed.
On appeal, defendant raises the following "questions":3
I. WHETHER A MANIFEST INJUSTICE OCCURS
WHEN THERE IS NO FACTUAL BASIS FOR THE
3
Defendant's letter brief did not contain point headings. See R. 2:6-2(b)
(requiring a table of contents, including point headings).
A-5148-18
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CONVICTION AND THE ALLEGED VICTIM SAYS
THE CRIME DID NOT OCCUR.
II. WHETHER THE DEFENDANT IS ENTITLED TO
RETRACT HIS GUILTY PLEA BECAUSE HIS
ATTORNEY NEGLECTED TO INFORM HIM THAT
THERE WAS NO FACTUAL BASIS FOR THE
CONVICTION AND THE ALLEGED VICTIM SAYS
THE CRIME DID NOT OCCUR. THE ALLEGED
VICTIM SAYS THE CRIME DID NOT OCCUR.
III. WHETHER THE DEFENDANT'S ATTORNEY
RENDERED INEFFECTIVE ASSISTANCE WHEN
COUNSEL PERMITTED HIS CLIENT TO PLEA
GUILTY WITHOUT A FACTUAL BASIS IN THE
RECORD.
IV. WHETHER THE DEFENDANT SHOULD BE
GIVEN THE OPPORTUNITY TO GO TO TRIAL
AND RETRACT HIS GUILTY PLEA.
DEFENDANT'S CLAIM OF MANIFEST INJUSTICE.
II.
We review a judge's denial of PCR without an evidentiary hearing de
novo. State v. Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018). "Post-
conviction relief is neither a substitute for direct appeal, R. 3:22-3, nor an
opportunity to relitigate cases already decided on the merits, R. 3:22-5." State
v. Preciose, 129 N.J. 451, 459 (1992). A defendant raises a cognizable PCR
claim if it is based upon a "[s]ubstantial denial in the conviction proceedings of
defendant's rights under the Constitution of the United States or the Constitution
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or laws of the State of New Jersey." R. 3:22-2(a). Because all criminal
defendants have the constitutional right to the assistance of counsel in their
defense, defendants may bring a PCR claim for ineffective assistance of counsel.
U.S. Const. amend. VI; N.J. Const. art. 1, ¶ 10.
To reverse a conviction based on ineffective assistance of counsel, a
defendant must demonstrate that both: (1) "counsel's performance was deficient"
and (2) counsel's "errors were so serious as to deprive the defendant of a fair
trial." Strickland v. Washington, 466 U.S. 668, 687 (1984); see State v. Fritz,
105 N.J. 42, 58 (1987) (adopting the Strickland two-part test). Under the first
prong, counsel's representation must be objectively unreasonable. State v.
Pierre, 223 N.J. 560, 578 (2015). Under the second prong, a "reasonable
probability [must exist] that, but for counsel's unprofessional errors, the resul t
of the proceeding would have been different." Id. at 583 (quoting Strickland,
466 U.S. at 694).
In his three-page letter brief, defendant reiterates the same arguments
asserted in his first petition for PCR: that he received ineffective assistance of
counsel, and he was taking medication used to treat schizophrenia, psychotic
disorders and bipolar disorders, and an antihistamine. Defendant also claimed
he suffered from poor mental health at the time of his plea allocution hearing,
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thus impairing his ability to make a knowing, voluntary plea. In addition, he
argued his attorney coerced him to plead guilty and refused to file a motion to
dismiss the indictment.
As we noted within the context of a defendant's claim that trial counsel
failed to investigate his case, "a petitioner 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 . . .
[and] assert the facts that an investigation would have revealed[.]" State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).
The PCR court has discretion to determine whether a hearing is necessary
to aid in its analysis. State v. Marshall, 148 N.J. 89, 157-58 (1997). If the court
decides a defendant's allegations "are too vague, conclusory, or speculative to
warrant an evidentiary hearing . . . then an evidentiary hearing need not be
granted." Id. at 158 (citing Preciose, 129 N.J. at 462-64). This is because there
is a strong presumption trial counsel "rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment."
Strickland, 466 U.S. at 690. Further, because prejudice is not presumed, Fritz,
105 N.J. at 52, a defendant must demonstrate "how specific errors of counsel
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undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S.
648, 659 n. 26 (1984).
Here, the PCR court properly denied defendant's second petition because
it was untimely filed under Rule 3:22-4(b). A second or subsequent petition for
post-conviction relief shall be dismissed unless:
(1) it is timely under R[ule] 3:22-12(a)(2); and
(2) it alleges on its face either:
(A) that the petition relies on a new rule of
constitutional law, made retroactive to
defendant's petition by the United States
Supreme Court or the Supreme Court of
New Jersey, that was unavailable during
the pendency of any prior proceedings; or
(B) that the factual predicate for the relief
sought could not have been discovered
earlier through the exercise of reasonable
diligence, and the facts underlying the
ground for relief, if proven and viewed in
light of the evidence as a whole, would
raise a reasonable probability that the relief
sought would be granted; or
(C) that the petition alleges a prima facie
case of ineffective assistance of counsel
that represented the defendant on the first
or subsequent application for [PCR].
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Thus, to be timely, the second PCR must satisfy Rule 3:22-12(a)(2) and it must
satisfy Rule 3:22-4(b)(2)(A), (B), or (C). Defendant's second PCR petition fails
on both prongs.
Under Rule 3:22-12(a)(2), "no second or subsequent petition shall be filed
more than one year after the latest of" one of three dates. The first addresses the
date of a newly recognized constitutional right. See R. 3:22-12(a)(2)(A)
(providing "the date on which the constitutional right asserted was initially
recognized by the United States Supreme Court or the Supreme Court of New
Jersey, if that right has been newly recognized by either of those Courts and
made retroactive by either of those Courts to cases on collateral review"). This
is not involved here.
The second is "the date on which the factual predicate for the relief sought
was discovered, if that factual predicate could not have been discovered earlier
through the exercise of reasonable diligence . . . ." R. 3:22-12(a)(2)(B). This
second date is not satisfied here because defendant's claim is against his trial
counsel and is repetitive of the arguments made in the first PCR petition and
addressed on the appeal addressing denial of his first PCR.
The third is "the date of the denial of the first or subsequent applicati on
for [PCR] where ineffective assistance of counsel that represented the defendant
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on the first or subsequent application for [PCR] is being alleged." R. 3:22-
12(a)(2)(C). In this case, defendant's first PCR petition was denied on October
25, 2016, and his second PCR petition was filed on June 3, 2019. This
subsection was also not met. Therefore, defendant's second PCR petition is
untimely because it does not satisfy Rule 3:22-12(a)(2)(A), (B), or (C) and by
not satisfying this, it is barred and must be dismissed under Rule 3:22-4(b).
There is no provision under Rule 3:22-4(b) to modify the time frames for
"excusable neglect." See Jackson, 454 N.J. Super. at 293-94 (providing the time
bar under Rule 3:22-12(a)(2) cannot be "excused in the same manner as the late
filing of a first PCR petition"). A court cannot review the merits of an untimely
second PCR petition that does not satisfy the Rules. State v. Brown, 455 N.J.
Super. 460, 470 (App. Div. 2018). Additionally, the time frames under Rule
3:22-12(a) cannot be relaxed pursuant to Rule 3:22-12(b). There also is no
ability to relax the timeframes under Rule 1:1-2(a). See R. 1:3-4(c) (providing
that neither the parties nor the court may enlarge the time specified by Rule
3:22-12).
Under Rule 3:22-5, "[a] prior adjudication upon the merits of any ground
for relief is conclusive whether made in the proceedings resulting in the
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conviction or in any post-conviction proceeding brought pursuant to this rule or
prior to the adoption thereof, or in any appeal taken from such proceedings."
We conclude that defendant's further arguments are without sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The PCR
petition was untimely filed, and, as the PCR court determined, defendant failed
to demonstrate "good cause for the scheduling of a court hearing." See also
State v. Marshall, 148 N.J. 89, 157-58 (1997) (recognizing the PCR court has
discretion to determine whether a hearing is necessary to aid in its analysis).
Accordingly, the PCR court was correct to deny defendant's second PCR petition
as time-barred, without a hearing.
Affirmed.
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