NOT FOR PUBLICATION WITHOUT THE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-3540-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LUIS F. DASILVA,
Defendant-Appellant.
___________________________________
Submitted March 12, 2018 – Decided August 21, 2018
Before Judges Ostrer and Rose.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 03-
06-2254.
Luis F. DaSilva, appellant pro se.
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Tiffany
M. Russo, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant appeals from the denial of his second petition for
post-conviction relief (PCR) after an evidentiary hearing. He
collaterally challenges his 2004 convictions for murder, felony
murder, robbery and other related crimes. He contends he received
ineffective assistance of counsel at the pretrial, trial,
appellate, and PCR stages. He also argues that his trial counsel's
representation was per se ineffective because it was hampered by
a conflict of interest and he was deprived the counsel of his
choice. He asserts that the underlying facts that support his
conflict of interest claim – that his attorney had been arrested
in New York and was under investigation for other suspected crimes
at the time of defendant's trial – are newly discovered and entitle
him to PCR.
Because the record does not demonstrate that defendant's
petition was timely, we are constrained to reverse the PCR court's
order and remand for further proceedings. See R. 3:22-4(b), -
12(a)(2), -12(b).
We presume familiarity with the underlying facts, which we
reviewed in defendant's previous appeals. See State v. DaSilva,
No. A-4633-12 (Oct. 28, 2014) (DaSilva III) (appeal of order
dismissing second PCR); State v. DaSilva, No. A-3334-10 (Jul. 25,
2012) (DaSilva II) (appeal of denial of first PCR); State v.
DaSilva, No. A-2039-06 (Jul. 8, 2009) (DaSilva I) (direct appeal).
However, we briefly recount the procedural history surrounding his
second PCR petition.
2 A-3540-15T4
On October 3, 2011, defendant filed his second PCR petition
while his appeal from the denial of his first PCR petition was
pending. The PCR court dismissed the petition; the court
mistakenly concluded the second filing was premature because the
appeal involving the first PCR petition was still pending. After
that appeal concluded, defendant in 2013 requested permission to
file a second PCR petition and reinstate his 2011 claims. The
trial court viewed that request for permission to file as
defendant's actual petition and dismissed it for lack of factual
support. Defendant appealed.
We found in DaSilva III that the trial court erred in
dismissing the October 2011 petition. The trial court misapplied
Rule 3:22-6A. See DaSilva III, slip op. at 9. We recognized that
the October 2011 petition was filed within one year of the denial
of defendant's first PCR petition. Id. at 8. But, the October
2011 petition was not included in the record; so, we could not
determine its timeliness. Id. at 9-10. We allowed defendant to
file a second petition, and instructed the trial court to apply
Rule 3:22-12(a)(2) and Rule 3:22-4(b) on remand to determine
whether defendant's second petition "would be deemed timely if it
had been filed in October 2011." Id. at 9-10. Treating that new
petition as if it were filed in October 2011, the court had to
examine the new petition, to ascertain whether it timely raised
3 A-3540-15T4
points based on a newly recognized constitutional right, R. 3:22-
12(a)(2)(A), newly discovered evidence, R. 3:22-12(a)(2)(B), or
ineffective assistance of PCR counsel, R. 3:22-12(a)(2)(C).1
We also found defendant's 2013 request for permission to file
was dismissed in error. DaSilva III, slip op. at 10. Defendant
alleged in vague terms that "new evidence ha[d] come to light to
support PCR." Ibid. Under Rule 3:22-12(a)(2)(B), defendant was
entitled to file a second or subsequent PCR petition within one
year of "the date on which the factual predicate for the relief
sought was discovered, if that factual predicate could not have
been discovered through the exercise of reasonable diligence
. . . ." Ibid.
Upon our remand, the PCR court did not expressly address
whether, or to what extent, defendant's petitions were timely.
Instead, it entertained oral argument on defendant's substantive
claims and ordered an evidentiary hearing solely on defendant's
claim pertaining to his right to counsel of his choice. Defendant
and his parents testified, as well as the assistant prosecutor who
tried his case. Their testimony centered on defendant's claims
that his trial attorney had a conflict of interest, and he was
1
New claims of ineffectiveness by trial counsel would be time-
barred. Defendant was obliged to cast his claims in terms of
ineffective assistance of PCR counsel, newly discovered evidence,
or newly recognized rights, in compliance with Rule 3:22-12(a)(2).
4 A-3540-15T4
denied his constitutional right to counsel of his choice. The
hearing testimony also touched on the effectiveness of defendant's
trial counsel. In oral and written decisions, the PCR court denied
defendant relief, relying on the hearing testimony and documentary
record.
Defendant raises the following points for our consideration:
POINT I
THE PCR COURT ERRED WHEN IT RULED THAT
APPELLANT WAS NOT DENIED THE RIGHT TO
EFFECTIVE ASSISTANCE OF PRETRIAL, TRIAL,
APPELLATE, AND PCR COUNSEL, AS GUARANTEED BY
THE U.S. CONT. AMEND VI, AND THE N.J. CONST.
ART. I, PAR. 10.
POINT II
APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE
OF PCR COUNSEL BECAUSE COUNSEL ARGUED AN ISSUE
FROM AN UNRELATED CASE IN APPELLANT'S BRIEF
IN VIOLATION OF U.S. CONST. AMEND. VI.
POINT III
THE PCR JUDGE ERRED WHEN IT [sic] RULED THAT
APPELLANT WAS NOT DEPRIVED HIS RIGHT TO
COUNSEL OF CHOICE DUE TO THE UNEXPLAINED
WITHDRAWAL OF HIS RETAINED ATTORNEY AND THE
SUBSTITUTION OF AN ASSOCIATE ATTORNEY WITHOUT
DEFENDANT'S WRITTEN CONSENT, IN VIOLATION OF
THE U.S. CONST. AMEND VI AND N.J. COURT RULE
1:11-2.
POINT IV
THE PCR JUDGE ERRED IN HER RULING WHEN SHE
STATED THAT APPELLANT WAS NOT DEPRIVED OF HIS
RIGHT TO BE PRESENT AT EVERY CRITICAL STAGE
OF HIS DEFENSE AND WAS NOT DEPRIVED OF
CRITICAL INFORMATION NECESSARY TO MAKE A
KNOWING AND INTELLIGENT DECISION TO PERMIT
SUBSTITUTION OF COUNSEL, IN VIOLATION OF THE
U.S. CONST. VI, XIV.
5 A-3540-15T4
POINT V
THE PCR JUDGE ERRED IN ITS [sic] RULING THAT
APPELLANT WAS NOT DENIED THE EFFECTIVE
ASSISTANCE OF TRIAL, APPELLATE, AND PCR
COUNSEL FOR THEIR INDIVIDUAL FAILURE TO
PROPERLY OBJECT OR ADVANCE THE APPELLANT'S
RIGHT TO CONFRONT THE STATE'S WITNESS [sic]
ABOUT THEIR OTHER CRIMES OR BAD ACTS, IN
VIOLATION OF U.S. CONST. AMENDS. VI, XIV.
POINT VI
THE PCR JUDGE ERRED IN HER DETERMINATION THAT
THE PROSECUTOR DID NOT IMPLY THAT ONCE A
CRIMINAL APPELLANT CHOOSES TO TAKE THE WITNESS
STAND AND TESTIFY, HE THEN HAS THE BURDEN TO
PRODUCE EVIDENCE TO ESTABLISH HIS INNOCENCE.
AND THAT NO CURATIVE INSTRUCTION WAS NEEDED
IN THE FINAL JURY CHARGE, AND THAT THE TRIAL
JUDGE DID NOT FAIL TO INSTRUCT THE JURY THAT
THE BURDEN OF PROOF NEVER SHIFTS TO THE
APPELLANT, OR THE APPELLANT HAVE [sic] AN
OBLIGATION TO PROVE HIS INNOCENCE OR OFFER ANY
PROOF OF HIS INNOCENCE IN VIOLATION OF THE DUE
PROCESS CLAUSE, AND RIGHT TO A FAIR TRIAL, AS
GUARANTEED BY U.S. CONST. AMENDS V, XIV.
POINT VII
THE PCR JUDGE ERRED WHEN IT DETERMINED THAT
THE TRIAL COURT DID NOT MAKE NUMEROUS ERRORS,
OMISSIONS, AND ABBREVIATIONS TO THE FINAL JURY
CHARGE, WHICH DEPRIVED THE APPELLANT OF A
PROPERLY INSTRUCTED JURY AND A FAIR TRIAL, IN
VIOLATION OF U.S. CONST. AMENDS. VI AND XIV.
POINT VIII
THE PCR JUDGE ERRED IN HER RULING THAT
APPELLANT DID NOT SATISFY THE SECOND PRONG OF
THE STANDARD SET IN STRICKLAND WHEN SHE STATED
THAT HIS PRETRIAL COUNSEL FAILED TO FILE
PRETRIAL MOTIONS TO SUPPRESS OR SANITIZE
PREJUDICIAL TESTIMONY BY THE ARRESTING
OFFICERS AND N.J.R.E. 404(B) EVIDENCE SEIZE
[sic] PURSUANT TO THE DEFENDANT'S ARREST.
EVIDENCE THAT WAS SEIZED OVER SIX MONTHS AFTER
6 A-3540-15T4
THE INSTANT OFFENSE, WAS UNRELATED TO THE
INSTANT OFFENSE WAS IMPROPERLY ADVANCED BY THE
STATE TO PROVE "FLIGHT." THEREFORE, THE
APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL
RIGHT TO THE EFFECTIVE ASSISTANCE AND A FAIR
TRIAL. ADDITIONALLY APPELLATE AND PCR COUNSEL
WERE INEFFECTIVE FOR FAILING TO ADVANCE THIS
CLAIM.
POINT IX
THE PCR JUDGE ERRED IN HER DECISION THAT
PRETRIAL AND TRIAL COUNSEL WERE NOT
INEFFECTIVE WHEN THEY EACH FAILED TO FILE
MOTIONS TO COMPEL THE STATE TO PROVIDE CALL
LOG EVIDENCE FOR OTHER PHONE AND BEEPER
NUMBERS RELATED TO THIS CASE, AS WELL AS THE
CALL OUT LOGS FOR POLICE AND OTHER EMERGENCY
RESPONDER [sic], TO REFUTE THE VERACITY OF THE
STATE'S STAR WITNESSES AGAINST THIS APPELLANT.
POINT X
THE PCR JUDGE ERRED IN HER DECISION THAT
APPELLANT DID NOT PRESENT NEWLY DISCOVERED
EVIDENCE TO REVEAL THAT HIS TRIAL COUNSEL,
PAUL BERGRIN, ESQ. AND HIS LAW OFFICE SHOULD
HAVE BEEN RELIEVED AS COUNSEL DUE TO A
CONFLICT OF INTEREST TO THE DEFENDANT.
POINT XI
THE PCR JUDGE ERRED WHEN HE [sic] STATED THAT
THE CUMULATIVE ERRORS DETAILED IN THIS
APPELLANT'S BRIEF DID NOT RENDERED [sic] THE
TRIAL UNFAIR THUS DENYING THE APPELLANT A NEW
TRIAL.
We decline to reach the merits of defendant's claims. In
DaSilva III, we reversed the PCR court's orders dismissing
defendant's 2011 and 2013 petitions and remanded with instructions
that the court apply Rule 3:22-12(a)(2) and 3:22-4(b) to: (1) the
petition we permitted defendant to file instead of the mistakenly
7 A-3540-15T4
dismissed October 2011 petition, which would be treated as if
filed in October 2011; and (2) the petition we permitted defendant
to file, raising the newly discovered evidence claims he referenced
in his March 2013 filing, which would be treated as if filed in
March 2013. DaSilva III, slip op. at 9-10. We appreciate the
time and effort the PCR court has already expended in reviewing
this matter, conducting an evidentiary hearing, and preparing its
two opinions. Yet, the PCR court was obliged, consistent with our
decision in DaSilva III, to address the timeliness of defendant's
petitions. See Triffin v. Automatic Data Processing, Inc., 411
N.J. Super 292, 306 (App. Div. 2010) (stating that the trial court
must comply with the appellate court's mandate). The PCR court
did not do so.
Rule 3:22-12(a)(2) imposes strict time limitations on the
filing of second or subsequent PCR petitions. "[E]nlargement of
Rule 3:22-12's time limits 'is absolutely prohibited.'" State v.
Jackson, 454 N.J. Super. 284, 293 (App. Div. 2018) (quoting Aujero
v. Cirelli, 110 N.J. 566, 577 (1988)). We held that Rule 3:22-
12(a)(2)'s time limits cannot be relaxed because "the Supreme
Court in 2009 and 2010 amended Rule 1:3-4, Rule 3:22-4(b), and
Rule 3:22-12 to preclude enlargement or relaxation." Id. at 287;
see also R. 3:22-12(b) (stating that except where indicated, the
time limitations of Rule 3:22-12 "shall not be relaxed").
8 A-3540-15T4
An untimely petition "shall be dismissed" under Rule 3:22-
4(b). Addressing an untimely first PCR petition, we recently held
that "[a]bsent sufficient competent evidence to satisfy" the
standard for enlargement of time under Rule 3:22-12(a)(1)(A), "the
court does not have the authority to review the merits of the
claim" for PCR. State v. Brown, ___ N.J. Super. ___, ___ (App.
Div. 2018) (slip op. at 14). Rather, the PCR court "has an
independent, non-delegable duty to question the timeliness of the
petition . . . ." Ibid. The same principle applies to a second
petition, which is subject to non-enlargeable time constraints.
Absent the PCR court's threshold timeliness determination,
we decline to reach the merits of defendant's claims. Nor shall
we attempt to address the timeliness issue ourselves, as the record
on appeal does not include copies of the petitions defendant filed
after our decision in DaSilva III. We are constrained to remand
again for resolution of that issue.
Reversed and remanded. We do not retain jurisdiction.
9 A-3540-15T4