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


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  •                                       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    NOT FOR PUBLICATION WITHOUT THE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.
    A-0044-18T3
    2
    . . . 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."
    A-0044-18T3
    3
    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.
    A-0044-18T3
    4
    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).
    A-0044-18T3
    5
    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.
    A-0044-18T3
    6
    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
    A-0044-18T3
    7
    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).]
    A-0044-18T3
    8
    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))).
    A-0044-18T3
    9
    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.
    A-0044-18T3
    10
    

Document Info

Docket Number: A-0044-18T3

Filed Date: 7/27/2020

Precedential Status: Non-Precedential

Modified Date: 7/27/2020