STATE OF NEW JERSEY v. MARIO REYES (09-03-0485, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2446-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARIO REYES,
Defendant-Appellant.
_______________________
Submitted September 12, 2022 – Decided October 11, 2022
Before Judges Mawla and Marczyk.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 09-03-0485.
Joseph E. Krakora, Public Defender, attorney for
appellant (Adam W. Toraya, Designated Counsel, on
the brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Colleen Kristan Signorelli, Assistant
Prosecutor, on the brief).
PER CURIAM
Defendant Mario Reyes appeals from an October 22, 2019 order denying
his petition for post-conviction relief (PCR) without an evidentiary hearing. We
affirm.
I.
We derive the following from the record. On November 8, 2008,
defendant was at a club with his girlfriend when someone told him one of his
friends had been in a fight. He saw his friend had bruises and blood on his face,
and he gave him his shirt. He then saw someone strike a second friend in the
head with a vase. He assisted the second friend into a car so he could seek
medical attention. Defendant then saw yet another friend lying on the ground
in the parking lot being assaulted by several men. Defendant asserts he
attempted to intervene, but the men assaulting his friend came towards him. At
that point, he pulled out a knife and stabbed one of the men.
Defendant was indicted for second-degree aggravated assault, N.J.S.A.
2C:12-1(b)(1); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-
5(d); and second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(d). Defendant entered a plea of guilty to second-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(1). The State agreed to dismiss the
remaining charges and recommended defendant be sentenced as a third-degree
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offender to three years in state prison. On December 11, 2009, defendant was
sentenced to three years in prison.
Defendant admitted he stabbed the victim with a knife and acknowledged
during his plea colloquy he knew stabbing someone with a knife could cause
serious bodily injury. Defendant further stated at his plea hearing that he
understood that by pleading guilty he was going to be deported. The Department
of Homeland Security and Immigration and Customs Enforcement subsequently
deported defendant to El Salvador in August 2011, after serving his custodial
sentence. He reentered the United States without permission sometime in 2012.
In October 2017, defendant was indicted on one count of reentry of a remove d
alien, 8 U.S.C. § 1326. A federal court subsequently dismissed that indictment
in July 2018. The Department of Homeland Security subsequently reinstituted
proceedings against defendant and ultimately deported him again. Defendant
filed a PCR petition on May 7, 2019, and the petition was denied by an order
dated October 22, 2019. This appeal followed.
II.
Defendant raises the following points on appeal:
POINT I
THE [PCR] COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR [PCR] WITHOUT
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AFFORDING HIM AN EVIDENTIARY HEARING
TO FULLY ADDRESS HIS CONTENTION THAT HE
FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM TRIAL COUNSEL.
A. THE PREVAILING LEGAL PRINCIPLES
REGARDING CLAIMS OF INEFFECTIVE
ASSISTANCE OF COUNSEL, EVIDENTIARY
HEARINGS, AND PETITIONS FOR [PCR].
B. THE PCR COURT ERRED IN FAILING TO
GRANT DEFENDANT AN EVIDENTIARY
HEARING TO SHOW THAT HE RECEIVED
INEFFECTIVE ASSISTANCE OF TRIAL
COUNSEL.
POINT II
THE COURT MISAPPLIED ITS DISCRETION IN
APPLYING R. 3:22-12, AS A PROCEDURAL BAR
AGAINST THE DEFENDANT'S FILING FOR [PCR].
Defendant argues the PCR court erred in denying him a hearing because
his plea counsel did not properly advise him regarding the law of self-defense
and told defendant self-defense was not available as a defense under New Jersey
law. Defendant further submits the factual basis for his plea was insufficient for
second-degree aggravated assault because he expressed to the judge he did not
intend to inflict serious bodily injury.
The State counters the PCR petition is time-barred, and defendant did not
demonstrate excusable neglect or a fundamental injustice to warrant relaxing the
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rule. The State further argues the PCR court properly denied defendant's PCR
petition because he did not establish a prima facie case of ineffective assistance
of counsel. Although defendant argues the trial court never advised him about
the five-year time bar to file a PCR petition, the State notes defendant failed to
provide a transcript of the sentencing hearing or a certification from defendant
indicating he was unaware of the five-year time bar. The State also notes
defendant did not timely file his PCR when he reentered the United States for
fear he would once again be deported, which is not a proper excuse for the late
filing of the PCR.
The State contends defendant's arguments regarding ineffective assistance
of counsel based on the lack of a proper investigation lacks merit because there
is no indication what such investigation would have revealed, and defendant did
not provide affidavits from any alleged witnesses. The State argues plea counsel
had no duty to explain the difference between a second- and third-degree offense
and the different deportation consequences. Instead, the only requirement was
that plea counsel not provide false or inaccurate information regarding the
charges to which defendant pled. The State further asserts defendant was denied
asylum because the aggravated assault was "a particularly serious crime," not
because it was a conviction for a second-degree offense.
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The State argues defendant was well aware of the immigration
consequences of his second-degree aggravated assault plea. The State notes that
while the PCR application sets forth facts that could potentially support a claim
of self-defense or defense of others, defendant's version of the facts has been
known to him since the incident, and he has not provided a sufficient reason
explaining the nine-and-a-half-year delay in bringing the PCR.
III.
Where, as here, a PCR judge does not hold an evidentiary hearing, we
"conduct a de novo review of both the factual findings and legal conclusions of
the PCR court." State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016)
(quoting State v. Harris, 181 N.J. 391, 421 (2004)). The record here establishes
defendant's PCR petition is time-barred and lacks substantive merit.
A.
Rule 3:22-12(a)(1)(A) precludes PCR petitions filed more than five years
after entry of a judgment of conviction unless the delay was "due to defendant's
excusable neglect and . . . 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[.]" Our Supreme Court has stated "[t]he time
bar should be relaxed only 'under exceptional circumstances' because '[a]s time
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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) (second alteration in original) (quoting State v. Afanador, 151 N.J. 41,
52 (1997)). We have held that when a first PCR petition is filed more than five
years after the judgment of conviction, the PCR court should examine the
timeliness of the petition, and defendant must submit competent evidence to
satisfy the standards for relaxing the rule's time restriction. State v. Brown, 455
N.J. Super. 460, 470 (App. Div. 2018).
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). To determine whether excusable neglect
is present, the court "should consider the extent and cause of the delay, the
prejudice to the State, and the importance of the petitioner's claim in determining
whether there has been an 'injustice' sufficient to relax the time limits." Ibid.(quoting Afanador, 151 N.J. at 52).
Defendant's claims are clearly time-barred. Defendant's judgment of
conviction was entered on December 11, 2009. Pursuant to Rule 3:22-12, he
had until December 11, 2014, to file his PCR petition. Defendant filed his
petition on May 7, 2019—well over four years too late. Defendant asserts the
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trial court did not inform him of the five-year time bar, but he failed to provide
the sentencing transcript, and his certification does not reflect he was unaware
of the time bar. Moreover, defendant returned to the United States in 2012, well
within the five-year time limitation to file a PCR petition. Defendant's
indication in his PCR application was that he was concerned about alerting
government officials about his presence in the United States and that he was
ignorant of the law. Those arguments are not persuasive. Otherwise, an
individual in defendant's position could wait to file a PCR until he was again
indicted for reentry. This would, in essence, extend the time to file a PCR
petition indefinitely and make it optional, unless defendant faced a new charge
that jeopardized his immigration status.
The five-year time bar was not designed to give defendant discretion as to
when to file a PCR petition based on whether or not deportation proceedings or
other charges were instituted against him. The purpose of the PCR five-year
time bar "is to encourage defendants reasonably believing they have grounds for
[PCR] to bring their claims swiftly and discourages them from sitting on their
rights until it is simply too late for a court to render justice." State v. Cummings,
321 N.J. Super. 154, 165 (App. Div. 1999). It appears defendant would have
never brought a PCR application if federal officials had not indicted him again.
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Defendant's conduct does not establish excusable neglect. Lastly, his ignorance
of the law is not persuasive because we have previously noted, "[i]gnorance of
the law and rules of court does not qualify as excusable neglect [under Rule
3:22-12(a)(1)(A)]." State v. Merola, 365 N.J. Super. 203, 218 (Law Div. 2002),
aff'd, 365 N.J. Super. 82 (App. Div. 2003).
Furthermore, although defendant claims his plea counsel incorrectly
advised he could not assert self-defense in the underlying matter, this does not
establish excusable neglect. "Defendant cannot assert excusable neglect simply
because he received inaccurate . . . advice from his defense counsel." State v.
Brewster, 429 N.J. Super. 387, 400 (App. Div. 2013) (citations omitted). "If
excusable neglect for late filing of a petition is equated with incorrect or
incomplete advice, long-convicted defendants might routinely claim they did
not learn about the deficiencies in counsel's advice on a variety of topics until
after the five-year limitation period had run." Ibid. Here, defendant was aware
of the facts surrounding this incident for well over nine years and, despite the
purported inaccurate advice, failed to take any action until well past the time
permitted. Under the totality of the circumstances, defendant has failed to
establish excusable neglect. Additionally, the remaining claims fail to establish
a fundamental injustice.
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B.
Defendant is unable to demonstrate how enforcement of the time bar
would result in a reasonable probability of fundamental injustice, as he did not
demonstrate a prima facie case of ineffective assistance of plea counsel. To
establish a claim of ineffective assistance of counsel, a defendant must satisfy a
two-part test: (1) "counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment[,]" and (2) "the deficient performance prejudiced the defense."
Strickland v. Washington, 466 U.S. 668, 687 (1984); accord State v. Fritz, 105
N.J. 42, 58 (1987) (adopting the Strickland test).
To set aside a guilty plea based on ineffective assistance of counsel, a
defendant must show "that there is a reasonable probability that, but for
counsel's errors, [the defendant] would not have pled guilty and would have
insisted on going to trial." State v. DiFrisco, 137 N.J. 434, 457 (1994) (alteration
in original) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Moreover, a
defendant must make those showings by presenting more than "bald assertions"
that they were denied the effective assistance of counsel. Cummings, 321 N.J.
Super. at 170.
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We are not persuaded by defendant's argument his plea counsel erred in
failing to conduct a proper investigation. Because defendant did not provide
affidavits from any witnesses who would purportedly assist his defense, there is
no indication what knowledge, if any, these witnesses possess. There is also no
indication what the video surveillance may have shown, if there was in fact any
video surveillance at the facility, that counsel could have requested and secured.
Moreover, it is not clear how it would have assisted defendant's case if the
attorney had tested his shirt for blood. Defendant admitted he would have had
blood from one friend on his shirt and further admitted he stabbed the victim.
The presence of blood, or lack thereof, from either of these individuals would
not appear to have impacted the outcome of this matter, and there was no
explanation how that alleged deficient performance of plea counsel prejudiced
the defense.
Defendant's argument regarding plea counsel's failure to advise him he
only would be subject to deportation if he pled guilty to a second -degree
aggravated assault—as opposed to a third-degree offense—is equally
unavailing. Plea counsel is required to provide a non-citizen defendant
sufficient information regarding immigration consequences of a guilty plea. See
State v. Nuñez-Valdéz, 200 N.J. 129, 140, 143 (2009). "[W]rong or inaccurate
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advice from counsel about the immigration consequences, and specifically
deportation, that would result from entry of a guilty plea, present[s] ineffective
assistance of counsel." State v. Gaitan, 209 N.J. 339, 361 (2012). Nuñez-Valdéz
was the applicable law at the time of defendant's plea. 1 The Nuñez-Valdéz Court
held there may be ineffective assistance of counsel where the advice given to a
defendant regarding the removal consequences of a guilty plea is false, or
inaccurate and affirmatively misleading, such as where counsel tells a defendant
there will be no immigration consequences when pleading to an offense that is
indeed presumptively deportable. Gaitan, 209 N.J. at 381; Nuñez-Valdéz, 200
N.J. at 140-43.
Here, there is no such allegation. Defendant was aware of the deportation
consequences of his plea. Defendant admitted during the plea colloquy he
understood he would be deported based on the charge. Defendant asserts plea
counsel essentially was obligated to discuss other plea scenarios when there is
no indication there were other plea options available. Nuñez-Valdéz provides
that counsel must inform defendant of the removal consequences of a guilty plea
1
See Gaitan, 209 N.J. at 373-74, holding the Padilla v. Kentucky standard does
not apply retroactively. 559 U.S. 356, 368-69 (2010) (stating counsel has an
affirmative duty to correctly advise a defendant of the risk of deportation where
the terms of the relevant immigration statute are "succinct, clear, and explicit in
defining the removal consequence" of a plea).
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that are not false, inaccurate, and affirmatively misleading. Ibid. Here, it is not
clear, as alleged, that even if defendant pled to a third-degree offense, it would
have impacted his deportation status, and he has not provided controlling
authority in this regard. Moreover, even if defendant would not have been
deported by pleading to a third-degree aggravated assault, it would not alter our
decision. If defendant had pled guilty to a first-degree crime, would plea counsel
have to explain the deportation implications of pleading to a second-, third-, and
fourth-degree offense when there is no indication in the record that such a plea
was even a possibility? What about the deportation options for completely
different charges? We determine under the facts in this case there was no such
obligation for plea counsel to advise defendant regarding every possible
hypothetical scenario, particularly when there is no indication pleading to a
lesser or different offense was even an option. That is not the standard.
Finally, we are satisfied defendant's argument with respect to his plea
colloquy is not persuasive. Defendant admitted he stabbed the victim. He then
indicated he did not intend to commit serious bodily injury when he stabbed the
victim. Defendant subsequently admitted he was in possession of a knife, cut
the victim with his knife, and understood that by stabbing someone in a fight,
he could have caused serious bodily injury. Defendant did not claim
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contemporaneously that he was innocent or that he was somehow acting in self-
defense. Defendant further reiterated that he wished to plead guilty and that he
was actually guilty of the charge.
In State v. D.D.M., the Court recognized that under some circumstances,
a court's sentence based on the acceptance of a guilty plea without a factual basis
may render the sentence illegal. 140 N.J. 83, 95 (1995) (citing State v. Mitchell,
126 N.J. 565 (1992)).2 However, in the context of a PCR application, a trial
court's failure to spell out the factual basis of a defendant's plea does not
necessarily constitute an improper acceptance of the guilty plea sufficient to
invalidate his conviction. The D.D.M. Court noted that as long as the guilty
plea is knowing and voluntary, "a court's failure to elicit a factual basis for the
plea is not necessarily of constitutional dimension," and a factual basis is only
constitutionally required when there is an indication of a contemporaneous claim
2
Compare D.D.M., 140 N.J. at 95 (denying PCR, holding "the trial court's
failure to spell out the factual basis of defendant's plea did not, under the
circumstances, constitute an improper acceptance of the guilty plea sufficient to
invalidate his conviction and to render his sentence illegal"), with State v.
Belton, 452 N.J. Super. 528, 540-41 (App. Div. 2017) (granting PCR where the
defendant provided an inadequate factual basis coupled with a contemporaneous
claim of innocence, consisting of a defense of others).
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of innocence. D.D.M., 140 N.J. at 95. There was no contemporaneous claim of
innocence to warrant relief here.3
To the extent we have not otherwise addressed defendant's arguments,
they lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).
Affirmed.
3
The Court in State v. Tate distinguished Mitchell. 220 N.J. 393, 407-08.
However, in applying the requirement of an adequate factual basis, the Court
emphasized that Tate, unlike Mitchell, involved a motion to vacate a plea before
or shortly after sentencing, not a request for PCR. Id. at 407; see also State v.
Campfield, 213 N.J. 218 (2013) (addressing necessity of factual basis on direct
appeal). Also, in recognizing that "[c]hallenges to the sufficiency of the factual
basis for a guilty plea" may be brought "on post-conviction relief," the Court in
State v. Urbina, 221 N.J. 509, 528 (2015), cited D.D.M. As noted, D.D.M.
restated the principle in Mitchell that "[a]s long as a guilty plea is knowing and
voluntary, . . . a court's failure to elicit a factual basis for the plea is not
necessarily of constitutional dimension and thus does not render illegal a
sentence imposed without such a basis." 140 N.J. at 95 (quoting Mitchell, 126
N.J. at 577). We therefore presume this statement in Mitchell retains vitality.
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