STATE OF NEW JERSEY VS. JULIO R. RUIZ-VIDAL (02-06-0095, MIDDLESEX COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4708-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JULIO R. RUIZ-VIDAL,

     Defendant-Appellant.
_______________________

                   Submitted November 18, 2020 – Decided January 22, 2021

                   Before Judges Alvarez and Sumners.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Indictment No. 02-06-
                   0095.

                   Mitchell E. Ignatoff, attorney for appellant.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Sarah D. Brigham, Deputy Attorney
                   General, of counsel and on the brief).

PER CURIAM
      Defendant Julio R. Ruiz-Vidal's post-conviction relief (PCR) petition

alleging ineffective assistance of trial counsel was denied in part and granted in

part without an evidentiary hearing. Defendant contends the PCR court erred in

finding that his petition was time- and procedurally barred. He asserted he was

denied an opportunity to seek admission into the pretrial intervention program

(PTI) because counsel failed to: move for dismissal of second-degree charges

against him that would have made it easier to gain entry into PTI; advise him he

could apply to PTI despite the prosecutor's refusal to consent to his admission;

and advise him he could appeal the prosecutor's refusal. We reverse and remand

for an evidentiary hearing.

                                        I

      In late 2000, Detective Stephen Jones, New Jersey State Police, and

Special State Investigator Mario Estrada, New Jersey Department of Law and

Public Safety Division of Criminal Justice, began an investigation into reports

by the New Jersey Division of Motor Vehicles (DMV) that there were criminal

operations engaged in the illegal acquisition of driver's licenses at DMV

agencies throughout the state, including the Edison Tano Mall DMV agency. A

confidential informant advised them that "brokers" were obtaining driver's

licenses for non-citizens without proper documentation. In exchange for money,


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                                        2
a broker would take individuals through the licensing process at a DMV facility,

where an agency employee working with the broker would illegally provide

them state-issued driver's licenses.

      In early February 2001, three men, including defendant, went to Karla

Andree-Quesada's home. They each paid Andree-Quesada, the broker, $1700

and were told to return with any identification documents they had. When they

returned several days later, defendant brought his Guatemalan passport and

driver's license, and an identification card that he obtained in California when

he first arrived in the United States. Andree-Quesada then gave the men answers

to the written driver's test. Rafael Cordero, Andree-Quesada's housemate, drove

the men to the Edison Tano Mall DMV agency, which was under surveillance.

      Once at the agency, Cordero directed the men to a counter to take the

written driver's test. Defendant showed DMV clerk Raymond Hagenson his

documents and took the test. Hagenson, who was involved in the scheme and

admitted to being paid between $50 and $100 for hundreds of similar

transactions, then told defendant to sign a driver's permit. After defendant and

the other men obtained the illegal driver's permits, Cordero drove them back to

Andree-Quesada's house. The plan was for Andree-Quesada to collect and

safeguard their driver's permits until the next steps could be taken to process the


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                                        3
permits into driver's licenses. However, they never got to Andree-Quesada's

house because they were stopped by police and arrested.

      Defendant, a Guatemalan national, waived his rights to remain silent and

to an attorney and confessed to paying $1700 to obtain a driver's license without

having the proper documentation. Defendant did not indicate he was involved

in Andree-Quesada's operations outside of going to her to get a license.

Fourteen months later, defendant and five co-defendants were indicted for

second-degree conspiracy, N.J.S.A. 2C:5-2; second-degree bribery, N.J.S.A.

2C:27-2(c) and N.J.S.A. 2C:2-6; second-degree official misconduct, N.J.S.A.

2C:30-2 and N.J.S.A. 2C:2-6; third-degree forgery, N.J.S.A. 2C:21-1(a)(2)-(3),

and N.J.S.A. 2C:2-6; fourth-degree falsifying records N.J.S.A. 2C:21-4(a) and

N.J.S.A. 2C:2-6; and third-degree tampering with public records, N.J.S.A.

2C:28-7(a)(1)-(2) and N.J.S.A. 2C:2-6.

      Defendant failed to appear for a pre-arraignment conference on August 2,

2002, resulting in the issuance of a bench warrant for his arrest. He was arrested

in Illinois almost two-and-half years later on March 8, 2005 and was extradited

to New Jersey.

      On May 6, 2005, defendant reached an agreement with the State and pled

guilty to third-degree tampering with public records or information. During his


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                                        4
plea colloquy, defendant stated he paid someone to obtain a driver's license and

presented false information to obtain the license. He gave no indication that he

was aware of Hagenson's involvement with Andree-Quesada or Cordero or had

any knowledge or connection with the scheme other than learning he could get

a license from Andree-Quesada. The State agreed to dismiss the remaining

counts against defendant and to recommend a non-custodial sentence of

probation with time-served (sixty-seven days). In addition, the State agreed to

release defendant on his own recognizance pending sentencing but reserved the

right to ask the court to impose any lawful sentence if he failed to appear for

sentencing.

      On July 22, 2005, in accordance the plea agreement, defendant was

sentenced to time-served and two years of probation conditioned on maintaining

employment and paying the mandatory fines. The sentencing court also ordered

defendant to notify Immigration and Naturalization Services 1 of his conviction.

Defendant did not file a direct appeal.

      Almost eleven years later, on May 18, 2016, defendant filed a motion to

withdraw his guilty plea, alleging that his plea's factual basis was inadequate.


1
    Now known as Immigration and Customs Enforcement and hereinafter
referred to by its acronym, ICE.


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                                          5
The motion was denied. 2 Defendant renewed the motion about ten months later,

on March 7, 2017, again alleging he provided an inadequate factual basis for his

plea. This motion was also denied.3 Defendant appealed the denial but withdrew

it five months later.

        Continuing to seek relief from his conviction, defendant filed a PCR

petition on January 23, 2019, alleging trial counsel was ineffective for not

advising him of his rights pertaining to PTI. Defendant asserted that within a

year of filing his petition he learned he had the right to apply to PTI and to

appeal the prosecutor's refusal of his counsel's request to consent to his

admission into PTI. See N.J.S.A. 2C:43-12 to -22; R. 3:28. To support his

claim, defendant submitted his trial counsel's certification stating that the

prosecutor denied counsel's request to allow defendant's admission into PTI and

that he did not tell defendant of the refusal or that defendant had a right to appeal

the refusal. Defendant also asserted the requirement that he notify ICE of his

conviction was contrary to public policy.

        Defendant later amended his petition, adding the claim that counsel was

ineffective for not moving to dismiss the second-degree conspiracy charges


2
    The court's written opinion is not in the record.
3
    The court's written opinion is not in the record.
                                                                             A-4708-18T1
                                          6
against him on the basis that he was not a party to or engaged in Andree-

Quesada's scheme to obtain illegal driver's licenses for undocumented

individuals. He argued that if the charges were dismissed, he would not have

had to show a compelling reason––a requirement for a defendant charged with

a second-degree offense––to be admitted into PTI.

      In a May 15, 2019 order, the PCR court ruled that defendant's judgment

of conviction be amended to remove the ICE notification requirement,4 but

denied the rest of his claims without an evidentiary hearing.         The court's

reasoning was set forth in a written opinion, which we detail below.

                                        II

      When petitioning for PCR, the defendant must establish, "by a

preponderance of the credible evidence," entitlement to the requested relief.

State v. Nash, 

212 N.J. 518

, 541 (2013) (quoting State v. Preciose, 

129 N.J. 451

,

459 (1992)). To sustain that burden, the defendant must allege and articulate

specific facts that "provide the court with an adequate basis on which to rest its

decision." State v. Mitchell, 

126 N.J. 565

, 579 (1992).




4
   Because the State did not object to removal of the ICE notification
requirement, the court directed the condition be removed from defendant's
judgment of conviction.
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                                        7
      A PCR claim is not a substitute for a direct appeal

, id. at 583,

and must

hurdle some time and procedural bars. A PCR petition must be filed within five

years after the entry of the judgment of conviction. R. 3:22-12(a)(1). A

defendant seeking relief from the time bar under the rule must show "excusable

neglect" and that a "fundamental injustice" will result. R. 3:22-12(a)(1)(A). To

relax the five-year time bar, there must be a showing of "compelling,

extenuating circumstances," State v. Milne, 

178 N.J. 486

, 492 (2004) (quoting

State v. Afanador, 

151 N.J. 41

, 52 (1997)) , or alternatively, "exceptional

circumstances," State v. Goodwin, 

173 N.J. 583

, 594 (2002) (quoting 

Afanador, 151 N.J. at 52

).

      A defendant is precluded from raising on PCR any issue that could have

been raised on direct appeal unless

            (1) . . . the ground for relief not previously asserted
            could not reasonably have been raised in any prior
            proceeding; or (2) . . . enforcement of the bar to
            preclude claims, including one for ineffective
            assistance of counsel, would result in fundamental
            injustice; or (3) . . . denial of relief would be contrary
            to a new rule of constitutional law under either the
            Constitution of the United States or the State of New
            Jersey.

            [R. 3:22-4(a).]




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                                        8
      The mere raising of a PCR claim does not entitle the defendant to an

evidentiary hearing as the defendant "must do more than make bald assertions

that" ineffective assistance counsel was provided. State v. Cummings, 321 N.J.

Super. 154, 170 (App. Div. 1999). The PCR court should grant an evidentiary

hearing and determine the merits of the claim only if the defendant has presented

a prima facie claim of ineffective assistance. 

Preciose, 129 N.J. at 462

. Yet, in

deciding whether to grant an evidentiary hearing, the court "should view the

facts in the light most favorable to a defendant to determine whether a defendant

has established a prima facie claim."

Id. at 462-63.

      To establish a prima facie claim of ineffective assistance of counsel, the

defendant is obliged to show not only the specific way counsel's performance

was deficient, but also that the deficiency prejudiced the right to a fair trial.

Strickland v. Washington, 

466 U.S. 668

, 687 (1984); State v. Fritz, 

105 N.J. 42

,

58 (1987). These principles apply to a criminal defense attorney's representation

of an accused in connection with a plea negotiation. Lafler v. Cooper, 

566 U.S. 156

, 162 (2012); Missouri v. Frye, 

566 U.S. 134

, 144 (2012).

      There is a strong presumption that counsel "rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment." 

Strickland, 466 U.S. at 690

. Since prejudice is not presumed, Fritz,


                                                                         A-4708-18T1
                                       

9 105 N.J. at 52

, the defendant must demonstrate with "reasonable probability"

that the result would have been different had counsel provided proper

representation, 

Lafler, 566 U.S. at 163

(quoting 

Strickland, 466 U.S. at 464

).

"[F]or mixed questions of law and fact, [appellate courts] give deference . . . to

the supported factual findings of the trial court, but review de novo the [trial]

court's application of any legal rules to such factual findings." State v. Harris,

181 N.J. 391

, 416 (2015).

                                       III

      The PCR court found defendant's petition was time-barred for being filed

well beyond the five-year limit after his conviction without any excusable

neglect justifying delay and that no fundamental injustice would result if he was

not allowed to seek relief. See R. 3:22-12. Additionally, the court determined

the claim that counsel was ineffective for not moving to dismiss the second-

degree charges was procedurally barred because it should have been raised in

prior proceedings. 5

      Notwithstanding these time and procedural bars, the court explained that

the petition was without merit on substantive grounds. Applying Strickland, the



5
  The PCR court was apparently referring to Rule 3:22-4(a)(1), which it did not
cite.
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                                       10
court found that counsel should have advised defendant of his right to apply to

PTI and to appeal the prosecutor's refusal to admit him, but that the "likelihood

of [defendant's] admittance into PTI was not high." The court determined

defendant did "not set forth any facts showing that the result would have been

any different" had he sought admission into PTI. As for the claim that counsel

was ineffective for not moving to dismiss the second-degree conspiracy charges,

the court determined the contention was without merit because he failed to show

that dismissal of the charges would have resulted in a different outcome, i.e.,

his admission into PTI. We disagree with the court's rulings.

      Defendant's petition was not time-barred. His PCR petition was framed

in the context that his ineffective assistance claims could not have been raised

until he became aware that he had a right to seek admission into PTI and a right

to appeal the prosecutor's refusal to consent to his entry. Viewing the facts in

the light most favorable to defendant, he filed for PCR within a year after he

became aware of his PTI options.           The State did not challenge this

representation. Thus, defendant had "excusable neglect" for filing his petition

almost fourteen years after his conviction. R. 3:22-12(a)(1)(A).

      Defendant's claim that counsel was ineffective for not seeking dismissal

of his second-degree charges was not procedurally barred. Defendant only


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                                      11
became aware of the benefit of dismissing the charges when he learned about

his PTI options and that his prospects for being admitted into PTI were enhanced

if the charges were dismissed. A defendant must demonstrate amenability to the

rehabilitative process or compelling reasons for PTI admission to overcome the

strong presumption against admission when: (1) the application is over the

prosecutor's objection; and (2) defendant is charged with a second-degree crime.

Guidelines for Operation of Pretrial Intervention in New Jersey, Pressler,

Current N.J. Court Rules, cmt. on Guideline 2, Guideline 3(i), at 1166-67

(2005); State v. Baynes, 

148 N.J. 434

, 442 (1997) (stating that under Guideline

3 there is a presumption against PTI admission for a defendant facing first- or

second-degree charges).6 A person charged with a second-degree offense must

establish compelling reasons to benefit from PTI, meaning more than just being

a first-time offender and accepting responsibility for the crime. State v. Nwobu,

139 N.J. 236

, 252 (1995).

      Considering the heavy burden to overcome the prosecutor's objection to

defendant's PTI admission because he faced second-degree charges, dismissal



6
   The criteria for admission to PTI, as well as the procedures concerning
applications for admission to the program, are set forth in N.J.S.A. 2C:43-12 to
- 22 and, Rule 3:28 and the PTI Guidelines, which were in effect when defendant
would have applied to PTI in 2005, were repealed effective July 1, 2018.
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                                      12
of those charges would have greatly enhanced his opportunity to get into the

program. The PCR court found defendant would not have been successful in

moving to dismiss the second-degree charges; thus, he was not prejudiced by

counsel's failure to file a motion. We see it differently.

      The second-degree charges accuse defendant with agreeing with others to

pay a state DMV official more than $200 to give him a driver's permit that he

was not legally entitled to receive. See N.J.S.A. 2C:5-2; N.J.S.A. 2C:30-2;

N.J.S.A. 2C:2-6. A prosecutor "must present proof of every element of an

offense to the grand jury and specify those elements in the indictment." State v.

Campione, 

462 N.J. Super. 466

, 491-92 (App. Div. 2020) (quoting State v. Dorn,

233 N.J. 93-94

(2018)) (quoting State v. Fortin, 

178 N.J. 540

, 633 (2004)).

Thus, only an indictment that is "manifestly deficient or palpably defective"

shall be dismissed. State v. Hogan, 

144 N.J. 216

, 229 (1996) (citation omitted).

"In a nutshell, a court examining a grand jury record should determine whether,

viewing the evidence and the rational inferences drawn from that evidence in

the light most favorable to the State, a grand jury could reasonably believe that

a crime occurred and that the defendant committed it." State v. Feliciano, 

224 N.J. 351

, 380-81 (2016) (citation and internal quotation marks omitted).




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                                       13
      Based upon our review of the grand jury transcripts, the State presented

no evidence that defendant conspired or was an accomplice to further or promote

official misconduct involving Hagenson to obtain fraudulent driver's licenses.

A public servant is guilty of second-degree official misconduct when he obtains

a benefit valued at more than $200 for knowingly conducting "an unauthorized

exercise of his official functions[.]" N.J.S.A. 2C:30-2(a). Conspiracy requires

proof of an agreement to commit a crime. N.J.S.A. 2C:5-2(a); State v. Samuels,

189 N.J. 236

, 254 (2007). A person can be guilty of conspiring to commit a

crime with an unknown person as long as he "knows that a person with whom

he conspires to commit a crime has conspired with another person or persons to

commit the same crime[.]" N.J.S.A. 2C:5-2(b). To act as an accomplice, a

defendant must act with purpose or knowledge in promoting the prohibited acts .

N.J.S.A 2C:2-6(c); State v. Savage, 

172 N.J. 374

, 388 (2002). An accomplice

cannot be guilty of "official misconduct in the absence of proof that he shared

with [the government employee] the intent to abuse [the governmental] office."

State v. Hinds, 

143 N.J. 540

, 551 (1996).

      The grand jury testimony of the State's sole witness, Detective Jones,

merely demonstrated that defendant and two others paid $1700 to Andree-

Quesada in exchange for shepherding them through a process to illegally obtain


                                                                       A-4708-18T1
                                     14
driver's licenses. There was no indication defendant worked with Andree-

Quesada or anyone else to further the scheme or its operation. There was no

indication he recruited others to take advantage of the illegal acquisition of

driver's licenses. There was no indication defendant was aware of Andree-

Quesada's arrangement with Hagenson to secure his illegal driver's license.

Simply put, defendant was a mere consumer of Andree-Quesada's operation.

Based on the record before us, we conclude there was a reasonable probability

that defendant would have been successful in dismissing the second-degree

charges of conspiracy, bribery, and official misconduct. Thus, there is prima

facie evidence that counsel was ineffective in not moving to dismiss the charges,

which prejudiced him from being a more viable PTI candidate as a first-time

offender facing only non-violent third- and fourth-degree charges.

      Accordingly, we reverse and remand to the PCR Court to conduct an

evidentiary hearing. The hearing will allow parties to present evidence and legal

arguments as to whether trial counsel's conduct prejudiced defendant in not

moving to dismiss the second-degree charges in order to enhance his PTI

application. Should the court determine defendant was prejudiced, he shall be

given a reasonable time to withdraw his guilty plea and move to dismiss the




                                                                         A-4708-18T1
                                      15
second-degree charges against him. If successful, he may then apply to PTI.

We intimate no views on the outcome of these future proceedings.

     Reversed and remanded.




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                                    16

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