State of New Jersey v. Luis Rodriguez ( 2024 )

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NOT FOR PUBLICATION WITHOUT THE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-1091-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LUIS A. RODRIGUEZ,
a/k/a FREDDIE,
LUIS RODRIGUEZ,
LUIS RODREQUEZ,
LOUIS RODRIGUEZ,
FREDDY RODRIGUEZ,
FREDDIE RODRIGUEZ,
FREDDY RODRIQUEZ,
FREDED RODRIQUEZ,
LUIS A. RODRIQUEZ,
FREDDIE RORIGUEZ, and
FREDDIE CHEO,
________________________
Submitted January 18, 2024 – Decided February 2, 2024
Before Judges Firko and Vanek.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 11-01-
0124.
Joseph E. Krakora, Public Defender, attorney for
appellant (John Joseph Bannan, Designated Counsel,
on the brief).
Raymond S. Santiago, Monmouth County Prosecutor,
attorney for respondent (Monica Lucinda Do Outeiro,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Luis Rodriguez appeals from a September 16, 2022 order
denying his subsequent petition for post-conviction relief (PCR) without an
evidentiary hearing. Defendant contends his trial, appellate, and first PCR
counsel rendered ineffective assistance. Judge Michael A. Guadagno
thoroughly considered defendant's contentions and issued a comprehensive
written decision, with which we substantially agree. We affirm.
I.
In January 2011, a Monmouth County grand jury charged defendant with
third-degree burglary, third-degree attempted aggravated criminal sexual
contact, third-degree attempted aggravated sexual assault, second-degree sexual
assault, third-degree endangering the welfare of a child, third-degree terroristic
threats, third-degree aggravated assault, and third-degree aggravated assault on
a police officer regarding two incidents that occurred on August 14, 2009.
A-1091-22
2
The first incident took place at 2:00 a.m. Defendant entered his neighbor's
apartment in Long Branch and stood near her bed while masturbating. When
the neighbor, who was also an acquaintance, questioned defendant about what
he was doing, he confessed that he loved her. The neighbor escorted defendant
out of her apartment but was unable to immediately call the police because her
cell phone was out of minutes, and she could not leave her son alone in the
apartment. The next day, the neighbor went to the Long Branch Police
Department, gave a statement to Detective Juan Vasquez, and identified
defendant from a photo lineup.
The second incident occurred after defendant left the neighbor's apartment
and went to another neighbor's apartment. At 3:30 a.m., twelve-year-old L.O.1
woke up and found defendant inside the bedroom she shared with her ten-year-
old brother T.O. Defendant was laying in L.O.'s bed—the bottom of a bunk
bed—and touched her inner thigh. Defendant put his hand over L.O.'s mouth to
keep her quiet and told her several times that if she did not remain quiet, he
would kill her. T.O. awoke and illuminated the bedroom using a gaming device,
1
We use initials to protect the confidentiality and identity of the minor victims.
R. 1:38-3(c)(9).
A-1091-22
3
which enabled him to see defendant was on his sister's bed and touching her.
Defendant also told T.O. to remain quiet or he would kill him.
L.O. yelled and her father, F.O., came into the children's bedroom. A fight
ensued between F.O. and defendant resulting in defendant fracturing F.O.'s nose.
F.O. also sprained his ankle during the struggle. L.O. called 9-1-1. Despite his
injuries, F.O. was able to detain defendant until the police arrived. The police
arrested defendant and retrieved his cell phone and a black hat from the
children's bedroom.
L.O. and T.O. gave statements to Detective Shawn Murphy of the
Monmouth County Prosecutor's Office, and F.O. provided a statement to
Detective Vasquez four days later because he was hospitalized for the injuries
he sustained. A SANE (Sexual Assault Nurse Examiner) examination was not
performed on L.O. because the incident occurred during her menstrual cycle ,
and defendant's assault did not involve any type of penetration.
Defendant provided a statement to the police. He admitted to entering
F.O.'s residence but initially denied entering the children's bedroom. However,
defendant later claimed he entered their bedroom after seeing three black males
enter the apartment. According to defendant, he assumed the men were there to
collect money from F.O. Defendant claimed F.O. started the altercation with
A-1091-22
4
him because F.O. thought defendant was one of the intruders and F.O. planted
his cell phone in the children's bedroom.
Following pre-trial motion practice and the plea-cutoff date, the matter
was marked ready for trial. Defendant petitioned the trial court to enter a guilty
plea after the plea-cutoff date, which was granted. Defendant agreed to plead
guilty to third-degree burglary and second-degree sexual assault in exchange for
an aggregate six-year term of imprisonment subject to the No Early Release Act,
N.J.S.A. 2C:43-7.2, followed by three years of parole. At the plea allocution
hearing, plea counsel represented to the trial court that he had "gone over . . . all
of the discovery in this matter" with defendant and they had "spent numerous
hours, even today, going through everything to determine what is best for him."
Plea counsel stated to the trial court that defendant "wishes to enter a plea at this
time to the deal that was put on . . . the record by the State."
During his plea colloquy with the trial court, defendant agreed with his
plea counsel's representations and stated he was "satisfied with the legal advice
[he] received from" his plea counsel. Defendant testified he entered two Long
Branch residences on August 14, 2009, at approximately 2:00 a.m., without
permission, in support of the factual basis supporting his guilty plea with "the
purpose to commit a crime therein." He also admitted touching L.O.'s upper
A-1091-22
5
thigh. Defendant testified that his plea was freely and voluntarily made, and he
acknowledged that absent a plea agreement, he faced up to fifteen years in
prison. The trial court noted plea counsel had "done a lot of work in the matter"
since entering the case "over the last number of months."
At sentencing, defendant indicated he "was looking to withdraw his guilty
plea." However, during a colloquy with the sentencing court, defendant stated
he did not want to vacate his guilty plea and chose to proceed to sentencing.
Prior to sentencing, the assistant prosecutor discussed the victim impact
statement provided by L.O.'s family, which detailed the "fear" the family
continued to have as a result of defendant's conduct. The prosecutor also
reminded the court about the testimony from the first victim given during a
pretrial motion hearing, in which she stated she no longer felt safe in her home,
she installed four deadbolts on her front and back doors, does not leave the
windows open in the summertime, and is afraid when sleeping.
In addition, the children said they don't like to go outside and are afraid
to walk to school alone. L.O. indicated she feels embarrassed because
individuals at her school are aware of what took place and ask her how she's
doing.
A-1091-22
6
The sentencing court imposed the sentence contemplated in the plea
agreement, subject to Megan's Law, N.J.S.A. 2C:7-1 to -23, Parole Supervision
for Life, N.J.S.A. 2C:43-6.4, a no contact order, a psychiatric and drug
evaluation upon release, and the requisite fines. Defendant acknowledged he
could be confined to the Adult Diagnostic and Treatment Center in Avenel.
Defendant appealed his sentence, which was heard on our Sentencing Oral
Argument calendar pursuant to Rule 2:9-11. On February 11, 2014, we affirmed
defendant's sentence. State v. Rodriguez, No. A-1470-13 (App. Div. Feb. 11,
2014).
On February 12, 2016, defendant filed his first pro se PCR petition. PCR
counsel was assigned, and an amended petition and a supporting brief was filed
raising six claims of ineffective assistance by plea and appellate counsel: (1)
trial counsel was ineffective for failing to allow defendant to withdraw his guilty
plea before sentencing; (2) trial counsel failed to advise defendant of the
consequences of his guilty plea, specifically that he could be civilly committed
after serving his prison sentence; (3) trial counsel was ineffective for not having
a Spanish interpreter present during counsel's communications with defendant;
(4) appellate counsel was ineffective for failing to bring the claims set forth in
the PCR; (5) there was an insufficient factual basis for defendant's guilty plea;
A-1091-22
7
and (6) the sentence was illegal because it double counted defendant's prison
sentence and his civil commitment.
On February 23, 2018, the prior PCR court heard oral argument on
defendant's first PCR petition. On March 2, 2018, the PCR court denied the
petition without an evidentiary hearing, noting the petition was procedurally
barred but the PCR court nonetheless addressed and rejected defendant's
substantive claims. Defendant appealed the denial of his first PCR petition. We
affirmed and concluded defendant failed to present a prima facie case of
ineffective assistance of counsel. State v. Rodriguez, No. A-4333-17 (App. Div.
Oct. 11, 2019).
In our decision, we determined that "[d]efense counsel and the plea judge
both carefully went through the plea and supplemental forms with defendant."
Ibid. In addition, we noted a Spanish interpreter was used during the plea
proceedings and that defendant "advised he had read the forms, counsel had gone
over them with him, and [defendant] told the judge he did not have any questions
specifically as to the condition of civil commitment." Id., slip op. at 6.
Defendant filed a second PCR and requested appointment of counsel while
his first PCR was pending. On July 24, 2018, the PCR court denied defendant's
A-1091-22
8
application for assignment of counsel and dismissed the second petition pursuant
to Rule 3:22-4(b)(2),2 because good cause had not been shown.
2
The Rule provides:
(b) Second or Subsequent Petition for [PCR]. A second
or subsequent petition for [PCR] shall be dismissed
unless:
...
(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].
[Rule 3:22-4(b)(2).]
A-1091-22
9
Defendant also pursued federal litigation while the first PCR petition was
pending. The United States District Court for New Jersey denied the petition
for a writ of habeas corpus and subsequent motion for reconsideration. 3
Defendant filed a third pro se PCR petition, which was dismissed on
January 4, 2021, on the basis the claims he asserted had already been
adjudicated.4 On February 25, 2021, defendant then filed his subsequent PCR
petition, which is the subject of this appeal. In his petition, defendant claimed
his plea counsel was ineffective because plea counsel: (1) had failed to inform
him that there was no "victim statement" or a medical report that indicated
trauma to the victim (L.O.); (2) plea counsel did not interview the victim; the
victim's brother and father failed to give statements to the police; and (3) plea
counsel pressured defendant into accepting the guilty plea.
PCR counsel was assigned and filed a brief, which raised the following
additional points:
POINT I
DEFENDANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL
3
Defendant's second writ for habeas corpus was also dismissed.
4
During the pendency, defendant filed six PCR petitions, which were all
dismissed.
A-1091-22
10
CONSTITUTIONALLY GUARANTEED TO HIM BY
THE U.S. AND STATE CONSTITUTIONS.
A. TRIAL COUNSEL'S INEFFECTIVE
REPRESENTATION DURING THE PRETRIAL
PROCEEDINGS IMPACTED THE PLEA PROCESS
CAUSING DEFENDANT SUBSTANTIAL
PREJUDICE.
B. TRIAL COUNSEL WAS INEFFECTIVE IN
FAILING TO PERSUADE THE COURT TO APPLY
MITIGATING FACTORS IN SENTENCING
DEFENDANT.
C. APPELLATE COUNSEL WAS INEFFECTIVE BY
FAILING TO RAISE VARIOUS ISSUES ON DIRECT
APPEAL.
POINT II
THE SENTENCE IMPOSED BY THE TRIAL COURT
WAS EXCESSIVE AND/OR
UNCONSTITUTIONAL.
POINT III
PETITIONER'S CLAIMS ARE NOT BARRED
PROCEDURALLY FROM BEING RAISED IN THIS
PETITION FOR [PCR].
POINT IV
PETITIONER HAS ESTABLISHED A PRIMA FACIE
CASE SUFFICIENT TO REQUIRE AN
EVIDENTIARY HEARING.
A-1091-22
11
POINT V
PCR INCORPORATES BY REFERENCE ALL
ISSUES RAISED BY PETITIONER IN HIS
PETITION.
POINT VI
THE ERRORS OF COUNSEL IN THIS MATTER
WERE SO BAD THAT ACTUAL PREJUDICE NEED
NOT BE SHOWN.
POINT VII
THE EFFECT OF THE CUMULATIVE ERRORS IN
THIS MATTER RENDERED THE RESULT IN
VIOLATION OF PETITIONER'S SIXTH
AMENDMENT RIGHT TO EFFECTIVE COUNSEL.
Following oral argument, Judge Guadagno issued a written decision
denying defendant's subsequent PCR petition without an evidentiary hearing.
The judge found all claims of ineffective assistance of first PCR counsel were
procedurally barred under Rule 3:22-4(b)(1) because the claims were untimely
under Rule 3:22-12(a)(2)(A). In addition, the judge found all other claims failed
to meet the requirements of Rule 3:22-4(b)(2)(C), as they alleged only the
ineffective assistance of plea and appellate counsel, and not PCR counsel.
Judge Guadagno noted that by his "count, this represents the ninth time
defendant has sought review of his conviction by state or federal courts." The
judge explained that even if he were to consider defendant's claims of ineffective
A-1091-22
12
assistance, "most of them have been previously decided; the others lack merit."
The judge determined defendant's claim that "errors of counsel (presumably plea
counsel) were so bad that actual prejudice need not be shown" was not supported
by the record "or in our jurisprudence." The judge denied defendant's
subsequent petition as both time-barred and lacking in substantive merit because
defendant failed to establish a prima facie case of ineffective assistance of trial,
appellate, or PCR counsel. A memorializing order was entered. This appeal
followed.
Defendant raises the following arguments for our consideration:
POINT I
PETITIONER'S CLAIMS ARE NOT
PROCEDURALLY BARRED FROM BEING RAISED
IN THIS PETITION FOR [PCR].
(A) Defendant's Second PCR Petition Is Timely
Pursuant To R[ule] 3:22-4(b) And R[ule] 3:22-12(a)(2).
(B) Petitioner's Claims Are Not Barred By R[ule] 3:22-
5.
(C) Petitioner's Claims Are Not Barred By R[ule]3:22-
12.
POINT II
BECAUSE [DEFENDANT] RECEIVED
INEFFECTIVE ASSISTANCE OF FIRST PCR
A-1091-22
13
COUNSEL, THE PCR COURT ERRED IN DENYING
[DEFENDANT'S] SECOND PETITION FOR PCR.
(A) Trial And PCR Counsel's Ineffective
Representation During The Pretrial Proceedings
Impacted The Plea Process Causing Defendant
Substantial Prejudice.
(B) First PCR Counsel Was Ineffective For Failing To
Raise The Issue That Trial Counsel Was Ineffective In
Failing To Present To The Court Mitigating Factors In
Sentencing Or Argue For A Lesser Sentence.
(C) First PCR Counsel Was Ineffective For Failing To
Raise The Issue That Appellate Counsel Was
Ineffective For Failing To Argue That The Trial Court
Did Not Adequately Weigh Sentencing Factors.
POINT III
IN THE ALTERNATIVE, BECAUSE THERE ARE
GENUINE ISSUES OF MATERIAL FACT IN
DISPUTE, THE PCR COURT ERRED IN DENYING
AN EVIDENTIARY HEARING.
(A) Legal Standards Governing [PCR] Evidentiary
Hearings.
(B) In The Alternative, [Defendant] Is Entitled To An
Evidentiary Hearing.
II.
We review the legal conclusions of a PCR court de novo. State v. Harris,
181 N.J. 391, 419 (2004) (citing Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995)). The de novo standard also applies to
A-1091-22
14
mixed questions of law and fact. Id. at 420. Where an evidentiary hearing has
not been held, we "conduct a de novo review of both the factual findings and
legal conclusions of the PCR court." Id. at 421. We apply that standard here.
To establish a prima facie case of ineffective assistance of counsel,
defendant must satisfy the two-prong test articulated in Strickland v.
Washington, 466 U.S. 668, 687 (1984), which our Supreme Court adopted in
State v. Fritz, 105 N.J. 42, 58 (1987). "First, the defendant must show . . . .
counsel made errors so serious that counsel was not functioning as the 'counsel'
guaranteed . . . by the Sixth Amendment." Fritz, 105 N.J. at 52 (quoting
Strickland, 466 U.S. at 687). Defendant must then show counsel's deficient
performance prejudiced the defense. Ibid. To show prejudice, defendant must
establish by "a reasonable probability" that the deficient performance
"materially contributed to defendant's conviction . . . ." Id. at 58.
PCR is New Jersey's analogue to the federal writ of habeas corpus. State
v. Afanador, 151 N.J. 41, 49 (1997) (citing State v. Preciose, 129 N.J. 451, 459
(1992)). It is the vehicle through which a defendant may, after conviction and
sentencing, challenge a judgment of conviction by raising issues that could not
have been raised on direct appeal and, therefore, ensures that a defendant was
A-1091-22
15
not unjustly convicted. State v. McQuaid, 147 N.J. 464, 482 (1997) (citation
omitted).
Judge Guadagno determined defendant's petition is time-barred under
Rule 3:22-12(b), which provides the time limitations for filing second or
subsequent PCR petitions. Defendant argues his subsequent PCR petition was
timely because it was filed within one year of our decision affirming denial of
his first PCR petition. Defendant contends the issues raised in the PCR petition
under review "are of a constitutional nature," and he has satisfied the exceptions
under subsections (a), (b), and (c) of Rule 3:22-4. Defendant also asserts his
ineffective assistance of counsel claim against his first PCR counsel and
appellate counsel is allowed under Rule 3:22-4(b)(2)(C). We are unpersuaded.
The rules governing PCR petitions are set forth in Rule 3:22. Second or
subsequent PCR petitions must comply with the requirements of Rule 3:22-4(b)
and Rule 3:22-12(a)(2). To avoid dismissal of a second—or subsequent—PCR
petition, as stated, a defendant must present evidence to satisfy one of three
enumerated exceptions: a new rule of law, newly discovered evidence, or
ineffective assistance of prior PCR counsel. R. 3:22-4(b)(2). Defendant simply
makes bald assertions and has not presented any facts in an affidavit or
certification to support his subsequent PCR petition. Even when a defendant's
A-1091-22
16
PCR contentions fit within these exceptions, a second or subsequent PCR
petition must be timely filed. R. 3:22-4(b)(1).
Rule 3:22-12 prescribes the time limitations for PCR. As applicable in
this case, Rule 3:22-12(a)(2)(C) provides "no second or subsequent petition
shall be filed more than one year after . . . the date of the denial of the first . . .
application for [PCR]" based on ineffective assistance of counsel. Defendant's
subsequent PCR petition was filed more than one year after the denial of his first
PCR application. Defendant was required to file the PCR under review within
one year of March 2, 2018, the date his first PCR was denied, but he did not file
until March 2021, more than three years later.
Unlike Rule 3:22-4(a), Rule 3:22-4(b) contains no "fundamental injustice"
exception for second or subsequent PCR petitions. Similarly, there is no
fundamental or manifest injustice exception under Rule 3:22-5, which
establishes prior rulings on appeal are conclusive and precludes reassertion of
litigated issues in a PCR petition.
Defendant contends the issues raised in the petition under review are of a
constitutional nature, and the allegations of ineffective assistance are "clearly
proper" under Rule 3:22-4(a) (b) and (c). We reject defendant's argument
because he does not articulate any constitutional issues or cite any case law to
A-1091-22
17
support his position. Moreover, we reject defendant's assertion that the two
"second or subsequent" PCRs filed within one year of March 2018 satisfies Rule
3:22-4 because the prior PCR court dismissed both petitions for not alleging
grounds upon which a second or subsequent petition can be based under Rule
3:22-4(b)(2), and for not demonstrating good cause under Rule 3:22-4(b)(2).
Judge Guadagno correctly held the dismissal of defendant's non-compliant PCR
filings could not be used as a basis to render the March 2021 petition timely.
We also reject defendant's arguments because we are satisfied he has not
presented that rare case requiring relief from the procedural limitations imposed
on second or subsequent PCR petitions. Moreover, Judge Guadagno correctly
determined that notwithstanding the untimely filing of defendant's PCR under
review, the allegations set forth therein did not satisfy the second requirement
of Rule 3:22-4(b)(2) and were independently subject to dismissal.
Defendant failed to establish his subsequent PCR petition was timely and
also failed to establish that the performance of his plea, appellate, and PCR
counsel was substandard, or but for any of the alleged errors, the result would
have been different. See Strickland, 466 U.S. at 687-88. As a result, he was not
entitled to an evidentiary hearing. Preciose, 129 N.J. at 463; R. 3:22-10(b).
Affirmed.
A-1091-22
18