STATE OF NEW JERSEY v. L.W. (09-03-0561, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-0054-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
L.W.,
Defendant-Appellant.
__________________________
Submitted May 2, 2022 – Decided August 1, 2022
Before Judges Sumners and Petrillo.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 09-03-0561.
L.W., appellant pro se.
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Stephanie Davis Elson, Assistant
Prosecutor, on the brief).
PER CURIAM
In March 2011, defendant L.W.1 pled guilty to first-degree aggravated
sexual assault, N.J.S.A. 2C:14-2(a), and second-degree sexual assault, N.J.S.A.
2C:14-2(b). He was sentenced to concurrent ten- and five-year prison sentences,
subject to eighty-five percent parole ineligibility under the No Early Release
Act, N.J.S.A. 2C:43-7.2.
Defendant appealed his conviction. We denied the appeal in October
2013, rejecting his contentions that the trial judge erred in denying his motion
to withdraw his guilty plea; failing to appoint him a new attorney; admitting his
video-recorded police statements; and imposing an excessive sentence. State v.
L.W., No. A-2405-11 (App. Div. Oct. 15, 2013) (L.W. I).2
In December 2013, defendant filed a petition for post-conviction relief
(PCR) alleging fifty instances of ineffective assistance of counsel. The petition
was denied without an evidentiary hearing. Defendant appealed. We affirmed,
determining defendant's claims that he was innocent and his counsel coerced
1
We use defendant's initials because the record is impounded. R. 1:38-3(f)(4);
see also R. 1:38-3(c)(9).
2
To resolve defendant's appeal, we need not set forth the facts and procedural
history underlying defendant's conviction and direct appeal. We note, however,
they are set forth at length in L.W. I.
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him into pleading guilty were procedurally barred under Rule 3:22-5 because
they were addressed and dismissed on direct appeal. State v. L.W., No. A-
5941-13 (App. Div. Apr. 19, 2016) (slip op. at 7). We concluded that his other
arguments were "without sufficient merit to warrant discussion in a written
opinion. See R. 2:11-3(e)(2)." Ibid.
On May 18, 2020, four years after we affirmed the denial of defendant's
first PCR petition, defendant, representing himself, filed a second motion to
vacate his guilty plea and a motion for judgment of acquittal. On July 7, 2021,
the judge determined that because the motion sought PCR, it was procedurally
barred by Rule 3:22-12(a)'s five-year limitation on PCR claims.
Before us, defendant contends:
I. THE HONORABLE JUDGE MADE AN
ERROR BY DISMISSING DEFENDANT'S
MOTION. (ISSUE NOT RAISED BELOW)[.]
II. THE MOTION TO VACATE PLEA PLACED
THE COURTS ON DIRECT NOTICE OF A
MANIFEST OF INJUSTICE A WRONGFUL
CONVICTION. (ISSUE NOT RAISED
BELOW)[.]
III. UNCONSTITUTIONALLY OBTAINED
EVIDENCE BEFORE THE GRAND JURY AS
A BASIS FOR DISMISSING THE
INDICTMENT AND CONVICTION[.] (ISSUE
NOT RAISED BELOW)[.]
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IV. WIDESPREAD PROSECUTORIAL
MISCONDUCT MANIFEST INJUSTICE OF A
MISCARRIAGE OF JUSTICE[.] (ISSUE NOT
RAISED BELOW)[.]
V. COERCIVE PLEA BARGAINING A
MISCARRIAGE OF JUSTICE CONTINUED[.]
(ISSUE NOT RAISED BELOW)[.]
VI. DEFENDANT ADVANCES THE MOTION TO
VACATE PLEA AND JUDGEMENT OF
ACQUITTAL TO THE APPEAL BOARD WITH
ACCOMPANY ARGUMENTS AND DEMAND
TO PRODUCE. (GERMANE TO APPEAL)[.]
VII. DEMAND TO PRODUCE AFTER-
DISCOVERED (NEWLY DISCOVERED)
EVIDENCE AND ENTIRE DISCOVERY
PACKET[.] (ISSUE NOT RAISED BELOW)[.]
VII. THE STATE SHOULD NOT OPPOSE. (ISSUE
NOT RAISED BELOW)[.]
Initially, we note that defendant's appeal is procedurally deficient because
he has not provided any information regarding his previous appeals or PCR
petitions as required by Rule 3:22-8. Nevertheless, we have carefully
considered defendant's arguments and conclude they lack sufficient merit to
warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We affirm
substantially for the reasons set forth by the PCR judge in his written decis ion.
We add only the following brief comments.
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Defendant's current PCR petition was procedurally and substantively time
barred. We affirmed denial of his first PCR petition on April 19, 2016, and his
second PCR petition was filed on May 18, 2020, four years later and well beyond
the one-year time limit prescribed by Rule 3:22-12(a)(2). Defendant's second
petition was untimely because it was not filed within one year after denial of his
first PCR petition and it failed to rely on: (1) previously unavailable and newly
recognized constitutional rule of law, R. 3:22-12(a)(2)(A); (2) newly discovered
facts that "could not have been discovered earlier through the exercise of
reasonable diligence[,]" R. 3:22-12(a)(2)(B); or (3) a prima facie allegation case
that his first or subsequent PCR counsel was ineffective, R. 3:22-12(a)(2)(C).
See also R. 3:22-4(b) (stating that a second PCR petition is subject to the
substantive limitations set forth in Rule 3:22-12(a)(2)(A) to (C)).
As for defendant's claim that there was no probable cause for his arrest,
this issue was already rejected on appeal. See L.W. I, slip op. at 18, 20 (finding
defendant moved to exclude the confession based on a lack of probable cause,
but he entered an unconditional guilty plea prior to the motion being heard thus
"waiv[ing] his right to challenge the admissibility of the confession.") (citation
omitted); R. 3:9-3(f); R. 3:22-5. In addition, the facts on the record disprove
defendant's contention.
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Furthermore, defendant reiterates other challenges to trial counsel's
strategic decisions which were raised in prior proceedings and were found to not
be grounded in law or fact.
Affirmed.
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