STATE OF NEW JERSEY VS. HECTOR M. TIRADO II (05-02-0071, SOMERSET COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

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NOT FOR PUBLICATION WITHOUT THE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-0044-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HECTOR M. TIRADO II,
Defendant-Appellant.
____________________________
Submitted March 16, 2020 – Decided July 27, 2020
Before Judges Messano and Ostrer.
On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Indictment No. 05-02-
0071.
Joseph E. Krakora, Public Defender, attorney for
appellant (Monique D. Moyse, Designated Counsel, on
the brief).
Michael H. Robertson, Somerset County Prosecutor,
attorney for respondent (Lauren E. Bland, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
In November 2005, defendant Hector M. Tirado entered an open plea of
guilty to two counts of fourth-degree sexual contact, N.J.S.A. 2C:14-3(b)
(counts one and three); and third-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4(a) (count two).1 At the plea hearing, the judge questioned
defendant about his understanding of the terms of the plea bargain and waiver
of his rights, after which, defense counsel elicited a factual basis for the charges.
The prosecutor also questioned defendant, specifically about the ages of both
defendant and the victim when the alleged offenses took place. Given the nature
of the charges, the judge informed defendant that he would be sentenced to
community supervision for life (CSL). Defendant also completed plea forms to
that effect.
At the February 2007 sentencing, defense counsel argued for a non-
custodial probationary sentence. The judge denied counsel's request, stating that
although defendant did not "need the time in jail to reinforce the lesson" of his
wrongdoing, it was "necessary in order to promote a public perception that this
1
"An 'open plea' [is] one that did not include a recommendation from the State,
nor a prior indication from the court, regarding sentence." State v. Kates, 426
N.J. Super 32, 42 n.4 (2012), aff'd 216 N.J. 263 (2014). Defendant was
originally charged in count one with second-degree sexual assault, N.J.S.A
2C:14-2(c), but that charge was downgraded to fourth-degree sexual contact
with a minor at the time of defendant's guilty plea.
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. . . conduct has serious consequences." Defendant was sentenced to a term of
eighteen months' probation conditioned on serving 120 days in the county jail.
In addition, defendant was ordered to register pursuant to Megan's Law and
placed on parole supervision for life (PSL).2
Defendant moved to amend the judgment of conviction (JOC), arguing the
sentence, which included both probation and parole, was illegal. Pursuant to a
December 2, 2008 consent order, the JOC was amended to remove the
probationary term previously imposed, and to correct the statutory citation
regarding count one of the indictment. The amended JOC reflected defendant
was serving a sentence of parole supervision for life. The JOC was amended
yet again, in January 2011, to correct statutory references and to merge counts
one and three into count two of the indictment. The 2011 JOC again reflected
defendant's sentence to PSL.
In 2017, more than six years after the entry of the final amended JOC, and
ten years after his initial sentencing, defendant filed a PCR petition alleging
ineffective assistance of counsel (IAC), and a motion to withdraw his guilty
2
On the JOC, the word "community" was crossed out, and the handwritten word
"parole" was inserted prior to the words "supervision for life."
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plea.3 Defendant averred that although plea counsel told him he "would be on
[CSL]," counsel never advised him that a consequence of his guilty plea would
be a sentence to PSL. He also claimed that plea counsel "was confident that
[defendant] would do no jail time."
Defendant argued that his petition was not time-barred because he was not
aware of the full consequences of a PSL sentence until 2013, when he was
arrested on a parole violation, and his life spiraled downward as a result.
Defendant claimed that he would not have entered a guilty plea if he knew about
the consequences of a PSL sentence. Defendant's motion to vacate his guilty
plea was predicated on the assertion that the plea was made "without a knowing
and voluntary waiver of rights," because he was never informed that he would
be sentenced to PSL.
Judge Kevin M. Shanahan, who was not the judge at any of the previous
hearings, considered the arguments of counsel, and, in a well-reasoned written
opinion, denied the PCR petition without an evidentiary hearing and also denied
defendant's motion to withdraw his guilty plea. Judge Shanahan found that
defendant's PCR petition was filed well beyond the five-year time limit
3
Counsel who represented defendant at the time of his guilty plea and at
sentencing passed away in 2010.
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contained in Rule 3:22-12, and defendant had failed to establish excusable
neglect. As the judge noted, defendant's 2008 amended JOC made it clear that
he was sentenced to PSL, and defendant's certification acknowledged that as of
2008, he began reporting to parole, not probation. As a result, Judge Shanahan
rejected defendant's claim that only his subsequent violation of PSL made him
aware that PSL was a component of his sentence that "possessed its own
conditions, requirements, and penalties distinct from those of [p]robation or
CSL . . . ."
The judge also rejected defendant's claim that application of the time-bar
would result in a "fundamental injustice" by addressing the merits of defendant's
IAC claim. Noting the differences between CSL and PSL and accepting
defendant's certification that plea counsel never discussed PSL with defendant,
the judge assumed arguendo that defendant had demonstrated "a reasonable
probability that counsel's performance was deficient," the first prong of the
Strickland/Fritz standard.4
However, Judge Shanahan concluded defendant failed to demonstrate a
reasonable probability that plea counsel's deficient performance affected t he
4
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J.
42, 52 (1987).
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outcome. Fritz, 105 N.J. at 58. He noted the beneficial plea counsel secured for
defendant, which reduced count one of the indictment from a second- to fourth-
degree crime. The judge reasoned, "[W]ithout any plausible claim of innocence
or defense, defendant would have faced a harsher sentencing exposure, and,
more importantly, he would have faced the same PSL requirements had he
proceeded to trial, as opposed to entering a guilty plea." In sum, Judge Shanahan
concluded defendant's petition was time-barred, but, even if it were not,
defendant failed to satisfy the second prong of the Strickland/Fritz standard.
The judge also addressed defendant's motion to withdraw his guilty plea
by considering the factors enunciated by the Court in State v. Slater, 198 N.J.
145 (2009).5 Judge Shanahan noted that defendant "present[ed] no claim of
innocence." The judge concluded that the nature and strength of defendant's
reasons for withdrawing did not justify relief, because defendant delayed
asserting prejudice from his PSL sentence for years. Judge Shanahan placed
little weight of the third Slater factor, recognizing that although defendant
benefited from a downgraded first count of the indictment, his guilty plea was
5
These factors are: "(1) whether the defendant has asserted a colorable claim
of innocence; (2) the nature and strength of [the] defendant's reasons for
withdrawal; (3) [was the plea entered as part] of a plea bargain; and (4) whether
withdrawal would result in unfair prejudice to the State or unfair advantage to
the accused." Slater, 198 N.J. at 157–58.
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an open plea without any commitment from the State as to a sentence
recommendation. Finally, the judge concluded permitting withdrawal of
defendant's guilty plea would likely prejudice the State "as more than thirteen
years ha[d] passed from the time of the underlying incident, and witnesses'
memories have likely faded during this time." The judge entered an appropriate
order, and this appeal followed.
Defendant raises the following points for our consideration:
POINT ONE
[DEFENDANT] IS ENTITLED TO AN
EVIDENTIARY HEARING ON HIS CLAIM THAT
HIS ATTORNEY RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL FOR MISINFORMING
HIM ABOUT THE PENAL CONSEQUENCES OF
HIS PLEA.
POINT TWO
[DEFENDANT'S] GUILTY PLEA MUST BE SET
ASIDE.
POINT THREE
THE PCR COURT ERRONEOUSLY RULED THAT
[DEFENDANT]'S INEFFECTIVENESS CLAIM WAS
TIME-BARRED BECAUSE ANY DELAY IN FILING
THE PETITION 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
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TIME[]BAR WOULD RESULT IN A
FUNDAMENTAL INJUSTICE.
Having considered these arguments in light of the record and applicable legal
standards, we affirm, substantially for the reasons expressed by Judge Shanahan.
We add only the following.
Rule 3:22-12(a)(1)(A) generally requires that absent a defendant's
"excusable neglect" and the "reasonable probability" that a "fundamental
injustice" would result if "defendant's factual assertions were . . . true [,]" a first
PCR petition must be filed no more than five years "after the date of entry . . .
of the judgment of conviction that is being challenged . . . ." The time bar is not
tolled by the pendency of appellate review, State v. Dillard, 208 N.J. Super. 722,
727 (App. Div. 1986), or by the entry of an amended JOC following re-
sentencing, State v. Dugan, 289 N.J. Super. 15, 20–21 (App. Div. 1996). When
a PCR petition is filed more than five years after the JOC,
a PCR judge has an independent, non-delegable duty to
question the timeliness of the petition, and to require
that defendant submit competent evidence to satisfy the
standards for relaxing the rule's time restrictions
pursuant to Rule 3:22-12. Absent sufficient competent
evidence to satisfy this standard, the court does not
have the authority to review the merits of the claim.
[State v. Brown, 455 N.J. Super. 460, 470 (App. Div.
2018).]
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We agree with Judge Shanahan's reasoning in rejecting defendant's claim
of excusable neglect. Defendant was fully aware in 2008 that he was subject to
PSL as a result of his earlier guilty plea. "A defendant cannot decide to remain
intentionally ignorant of the legal consequences of his decision as a means of
establishing excusable neglect." Id. at 471. Nor has defendant shown that
enforcing the five-year time bar would cause fundamental injustice. The Court
has said, "Our courts will find fundamental injustice when the judicial system
has denied a 'defendant with fair proceedings leading to a just outcome' or when
'inadvertent errors mistakenly impacted a determination of guilt or otherwise
wrought a miscarriage of justice.'" State v. Nash, 212 N.J. 518, 546 (2013)
(quoting State v. Mitchell, 126 N.J. 565, 587 (1992)). Defendant's claim that
mistaken references at the time he pled guilty to CSL, instead of PSL, led him
to plead guilty when he otherwise would not have pled guilty and instead would
have gone to trial, is not rational. See, e.g., State v. O'Donnell, 435 N.J. Super.
351, 371 (App. Div. 2014) ("[T]o obtain relief from a conviction following a
plea, 'a petitioner must convince the court that a decision to reject the plea
bargain would have been rational under the circumstances.'" (quoting Padilla v.
Kentucky, 559 U.S. 356, 372 (2010))).
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The standards applicable to a defendant's motion to withdraw his guilty
plea differed from those required in considering his PCR petition. Id. at 368–
72. Judge Shanahan properly considered the Slater factors in denying
defendant's motion to withdraw his guilty plea, and we find no mistaken exercise
of his discretion in this regard. Slater, 198 N.J. at 156.
Affirmed.
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