IN RE THE MATTER OF ALEX RODRIGUEZ (94-09-1065, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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-5148-18

IN RE THE MATTER OF
ALEX RODRIGUEZ.
______________________

Submitted February 10, 2021 – Decided March 17, 2021

Before Judges Rose and Firko.

On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment Number 94-09-
1065.

Alex Rodriguez, appellant pro se.

Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Mark Niedziela, Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Alex Rodriguez, who is pro se, appeals from a July 11, 2019

order denying his second petition for post-conviction relief (PCR) without an

evidentiary hearing. We affirm.
 I.

In 1994, defendant was indicted in a two-count complaint for second-

degree sexual assault, N.J.S.A. 2C:14-2(c), and second-degree endangering the

welfare of a child, N.J.S.A. 2C:24-4, for sexually assaulting his eleven-year-old

niece. The child recanted her statement and moved to Florida. Anticipating the

victim would be uncooperative, the prosecutor offered a three-year term of

imprisonment to defendant in exchange for his guilty plea. The State also agreed

to dismiss count one.

On December 8, 1994, pursuant to the terms of the plea agreement,

defendant pled guilty to count two, as amended to third-degree endangering the

welfare of a child, N.J.S.A. 2C:24-4(a). Defendant testified at his plea

allocution hearing that he touched the "butt" of his niece, "with the intent of

stimulation." When questioned why he was pleading guilty, defendant

responded, "because I am guilty."

On February 10, 1995, defendant was sentenced in accordance with the

negotiated plea agreement to a three-year term of imprisonment. He was also

ordered to comply with all registration requirements under Megan's Law,

N.J.S.A. 2C:7-1 to -19, parole supervision for life, N.J.S.A. 2C:43-6.4, and was

assessed mandatory fines and penalties.

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 Defendant did not file a direct appeal of his conviction or sentence. On

October 16, 2015, more than twenty years after he was sentenced, defendant

filed his first PCR petition, alleging ineffective assistance of sentencing counsel.

In his initial petition, defendant claimed his counsel pressured him to plead

guilty because "it would be three years before [he went] to trial" and he could

"spend a very long time, maybe [twenty] years in jail" if found guilty.

Additionally, defendant contended he did not discover his ability to file

for PCR until 2015. Defendant also insisted the agency formerly known as the

Division of Youth and Family Services (DYFS) 1 had investigated the incident

and determined he did not commit a sexual offense against his niece. And, for

the first time, defendant claimed he suffered from a mental illness and had been

taking medication at the time of his plea hearing that impaired his judgment. On

October 25, 2016, a prior PCR court heard oral argument on defendant's petition

and denied relief. 2

1
A reorganization of the Department of Children and Families under L. 2012,
c. 16, effective June 29, 2012, changed the name of the Division of Youth and
Family Services to the Division of Child Protection and Permanency.
2
The transcript from defendant's first PCR hearing is not included in his
appendix.
A-5148-18
3
 On January 11, 2017, defendant appealed the PCR denial. State v. Alex

Rodriguez, No. A-001833-16 (App. Div. Mar. 6, 2018). We summarily

affirmed, concluding defendant's appeal was time-barred under Rule 3:22-

12(a)(1) and his claim of ineffective assistance of counsel was nothing more

than a bald assertion insufficient to sustain his claim.

On June 3, 2019, defendant filed his second PCR petition renewing his

prior arguments adjudicated on appeal. The PCR court denied defendant's

second PCR petition without conducting an evidentiary hearing. In a cogent

two-page letter decision, the PCR court relied on Rule 3:22-4(b) and noted that

defendant's petition was untimely under Rule 3:22-12(a)(2). The PCR court also

determined that defendant failed to provide sufficient evidence to invoke one of

the codified exceptions to the temporal limit provided under Rule 3:22-4(b)(2),

and noted "the issues [defendant] raise[s] have been previously adjudicated in

[his] first [PCR] motion and thereafter on appeal." A memorializing order was

entered on July 11, 2019. This appeal followed.

On appeal, defendant raises the following "questions":3

I. WHETHER A MANIFEST INJUSTICE OCCURS
WHEN THERE IS NO FACTUAL BASIS FOR THE

3
Defendant's letter brief did not contain point headings. See R. 2:6-2(b)
(requiring a table of contents, including point headings).
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 CONVICTION AND THE ALLEGED VICTIM SAYS
THE CRIME DID NOT OCCUR.

II. WHETHER THE DEFENDANT IS ENTITLED TO
RETRACT HIS GUILTY PLEA BECAUSE HIS
ATTORNEY NEGLECTED TO INFORM HIM THAT
THERE WAS NO FACTUAL BASIS FOR THE
CONVICTION AND THE ALLEGED VICTIM SAYS
THE CRIME DID NOT OCCUR. THE ALLEGED
VICTIM SAYS THE CRIME DID NOT OCCUR.

III. WHETHER THE DEFENDANT'S ATTORNEY
RENDERED INEFFECTIVE ASSISTANCE WHEN
COUNSEL PERMITTED HIS CLIENT TO PLEA
GUILTY WITHOUT A FACTUAL BASIS IN THE
RECORD.

IV. WHETHER THE DEFENDANT SHOULD BE
GIVEN THE OPPORTUNITY TO GO TO TRIAL
AND RETRACT HIS GUILTY PLEA.
DEFENDANT'S CLAIM OF MANIFEST INJUSTICE.

II.

We review a judge's denial of PCR without an evidentiary hearing de

novo. State v. Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018). "Post-

conviction relief is neither a substitute for direct appeal, R. 3:22-3, nor an

opportunity to relitigate cases already decided on the merits, R. 3:22-5." State

v. Preciose, 129 N.J. 451, 459 (1992). A defendant raises a cognizable PCR

claim if it is based upon a "[s]ubstantial denial in the conviction proceedings of

defendant's rights under the Constitution of the United States or the Constitution

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or laws of the State of New Jersey." R. 3:22-2(a). Because all criminal

defendants have the constitutional right to the assistance of counsel in their

defense, defendants may bring a PCR claim for ineffective assistance of counsel.

U.S. Const. amend. VI; N.J. Const. art. 1, ¶ 10.

To reverse a conviction based on ineffective assistance of counsel, a

defendant must demonstrate that both: (1) "counsel's performance was deficient"

and (2) counsel's "errors were so serious as to deprive the defendant of a fair

trial." Strickland v. Washington, 466 U.S. 668, 687 (1984); see State v. Fritz,

105 N.J. 42, 58 (1987) (adopting the Strickland two-part test). Under the first

prong, counsel's representation must be objectively unreasonable. State v.

Pierre, 223 N.J. 560, 578 (2015). Under the second prong, a "reasonable

probability [must exist] that, but for counsel's unprofessional errors, the resul t

of the proceeding would have been different." Id. at 583 (quoting Strickland,

466 U.S. at 694).

In his three-page letter brief, defendant reiterates the same arguments

asserted in his first petition for PCR: that he received ineffective assistance of

counsel, and he was taking medication used to treat schizophrenia, psychotic

disorders and bipolar disorders, and an antihistamine. Defendant also claimed

he suffered from poor mental health at the time of his plea allocution hearing,

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thus impairing his ability to make a knowing, voluntary plea. In addition, he

argued his attorney coerced him to plead guilty and refused to file a motion to

dismiss the indictment.

As we noted within the context of a defendant's claim that trial counsel

failed to investigate his case, "a petitioner must do more than make bald

assertions that he was denied the effective assistance of counsel. He must allege

facts sufficient to demonstrate counsel's alleged substandard performance . . .

[and] assert the facts that an investigation would have revealed[.]" State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).

The PCR court has discretion to determine whether a hearing is necessary

to aid in its analysis. State v. Marshall, 148 N.J. 89, 157-58 (1997). If the court

decides a defendant's allegations "are too vague, conclusory, or speculative to

warrant an evidentiary hearing . . . then an evidentiary hearing need not be

granted." Id. at 158 (citing Preciose, 129 N.J. at 462-64). This is because there

is a strong presumption trial counsel "rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment."

Strickland, 466 U.S. at 690. Further, because prejudice is not presumed, Fritz,

105 N.J. at 52, a defendant must demonstrate "how specific errors of counsel

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undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S.

648, 659 n. 26 (1984).

Here, the PCR court properly denied defendant's second petition because

it was untimely filed under Rule 3:22-4(b). A second or subsequent petition for

post-conviction relief shall be dismissed unless:

(1) it is timely under R[ule] 3:22-12(a)(2); and

(2) it alleges on its face either:

(A) that the petition relies on a new rule of
constitutional law, made retroactive to
defendant's petition by the United States
Supreme Court or the Supreme Court of
New Jersey, that was unavailable during
the pendency of any prior proceedings; or

(B) that the factual predicate for the relief
sought could not have been discovered
earlier through the exercise of reasonable
diligence, and the facts underlying the
ground for relief, if proven and viewed in
light of the evidence as a whole, would
raise a reasonable probability that the relief
sought would be granted; or

(C) that the petition alleges a prima facie
case of ineffective assistance of counsel
that represented the defendant on the first
or subsequent application for [PCR].

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Thus, to be timely, the second PCR must satisfy Rule 3:22-12(a)(2) and it must

satisfy Rule 3:22-4(b)(2)(A), (B), or (C). Defendant's second PCR petition fails

on both prongs.

Under Rule 3:22-12(a)(2), "no second or subsequent petition shall be filed

more than one year after the latest of" one of three dates. The first addresses the

date of a newly recognized constitutional right. See R. 3:22-12(a)(2)(A)

(providing "the date on which the constitutional right asserted was initially

recognized by the United States Supreme Court or the Supreme Court of New

Jersey, if that right has been newly recognized by either of those Courts and

made retroactive by either of those Courts to cases on collateral review"). This

is not involved here.

The second is "the date on which the factual predicate for the relief sought

was discovered, if that factual predicate could not have been discovered earlier

through the exercise of reasonable diligence . . . ." R. 3:22-12(a)(2)(B). This

second date is not satisfied here because defendant's claim is against his trial

counsel and is repetitive of the arguments made in the first PCR petition and

addressed on the appeal addressing denial of his first PCR.

The third is "the date of the denial of the first or subsequent applicati on

for [PCR] where ineffective assistance of counsel that represented the defendant

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on the first or subsequent application for [PCR] is being alleged." R. 3:22-

12(a)(2)(C). In this case, defendant's first PCR petition was denied on October

25, 2016, and his second PCR petition was filed on June 3, 2019. This

subsection was also not met. Therefore, defendant's second PCR petition is

untimely because it does not satisfy Rule 3:22-12(a)(2)(A), (B), or (C) and by

not satisfying this, it is barred and must be dismissed under Rule 3:22-4(b).

There is no provision under Rule 3:22-4(b) to modify the time frames for

"excusable neglect." See Jackson, 454 N.J. Super. at 293-94 (providing the time

bar under Rule 3:22-12(a)(2) cannot be "excused in the same manner as the late

filing of a first PCR petition"). A court cannot review the merits of an untimely

second PCR petition that does not satisfy the Rules. State v. Brown, 455 N.J.

Super. 460, 470 (App. Div. 2018). Additionally, the time frames under Rule

3:22-12(a) cannot be relaxed pursuant to Rule 3:22-12(b). There also is no

ability to relax the timeframes under Rule 1:1-2(a). See R. 1:3-4(c) (providing

that neither the parties nor the court may enlarge the time specified by Rule

3:22-12).

Under Rule 3:22-5, "[a] prior adjudication upon the merits of any ground

for relief is conclusive whether made in the proceedings resulting in the

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conviction or in any post-conviction proceeding brought pursuant to this rule or

prior to the adoption thereof, or in any appeal taken from such proceedings."

We conclude that defendant's further arguments are without sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The PCR

petition was untimely filed, and, as the PCR court determined, defendant failed

to demonstrate "good cause for the scheduling of a court hearing." See also

State v. Marshall, 148 N.J. 89, 157-58 (1997) (recognizing the PCR court has

discretion to determine whether a hearing is necessary to aid in its analysis).

Accordingly, the PCR court was correct to deny defendant's second PCR petition

as time-barred, without a hearing.

Affirmed.

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