STATE OF NEW JERSEY VS. ROCCO MALDONADO (10-07-1246, OCEAN COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE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-2175-19

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

ROCCO MALDONADO,

     Defendant-Appellant.
_______________________

                   Submitted April 19, 2021 – Decided May 19, 2021

                   Before Judges Hoffman and Smith.

                   On appeal from the Superior Court of New Jersey,
                   Ocean County, Law Division, Indictment No. 10-07-
                   1246.

                   Rocco Maldonado, appellant pro se.

                   Bradley D. Billhimer, Ocean County Prosecutor,
                   attorney for respondent (Samuel Marzarella, Chief
                   Appellate Attorney, of counsel; Shiraz Deen, Assistant
                   Prosecutor, on the brief).

PER CURIAM
      Defendant Rocco Maldonado appeals from the December 2, 2019 Law

Division order denying his second petition for post-conviction relief (PCR)

without an evidentiary hearing. We affirm.

                                       I.

      On October 14, 2011, in connection with a home invasion robbery, a jury

found defendant guilty of first-degree robbery, N.J.S.A. 2C:15-1 (counts one

and two); second-degree burglary, N.J.S.A. 2C:18-2 (count three); fourth-degree

possession of a prohibited devices, N.J.S.A. 2C:39-3(h) (count four); and fourth-

degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(e)

(count five). After the jury returned its verdict, defendant pled guilty to one

count of fourth-degree possession of a weapon by a convicted person, N.J.S.A.

2C:39-7 (count six).

      In our prior opinion addressing the denial of defendant's first PCR

petition, we summarized the underlying facts in this case:

            In summary, defendant was captured soon after the
            robbery. At the time of his arrest, he spontaneously
            admitted that he "broke in" and was "sorry." The State
            presented additional, overwhelming evidence of
            defendant's guilt, including evidence that his DNA was
            found on a black face mask that the robber left at the
            victims' home. His DNA was also found on some
            gloves in a black bag, which contained burglary tools
            and was found near the victims' home.


                                       2                                  A-2175-19
            [State v. Maldonado (Maldonado II), No. A-2368-16
            (App. Div. March 22, 2018) (slip op. at 2).]

      On February 10, 2012, the trial court sentenced defendant to an aggregate

prison term of forty years, with a mandatory eighty-five percent period of parole

ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.

We affirmed defendant's conviction and sentence on direct appeal. State v.

Maldonado (Maldonado I), No. A-4047-11 (App. Div. Jan. 15, 2015).

      On November 23, 2015, defendant filed his first petition for PCR, alleging

ineffective assistance of trial counsel for failing to make certain objections and

denial of due process.     The PCR court heard oral argument and denied

defendant's petition in a written opinion on December 2, 2016. We affirmed the

PCR court's decision, Maldonado II, slip op. at 4, on March 22, 2018. The

Supreme Court denied certification on December 13, 2018. State v. Maldonado,

236 N.J. 230

(2018).

      On July 19, 2019, defendant pro se filed his second petition for PCR, this

time alleging trial counsel misadvised him of the essential elements of first-

degree robbery; he believed he could not be convicted of first-degree robbery

because "nothing was taken from the home" during the home invasion.

Defendant claims, in reliance on this misadvise, he chose to go to trial rather

than accept a lesser sentence through a plea.

                                        3                                  A-2175-19
      The PCR court issued an order requiring defendant to show cause as to

why his second PCR petition was timely. After receiving defendant's response,

the PCR court denied defendant's second petition in a December 2, 2019 order

because defendant failed to file his second petition within one year of the denial

of his first petition. See R. 3:22-4(b); R. 3:22-12(a)(2).

      On this appeal, defendant raises the following arguments:

            POINT I

            THE PCR COURT ERRED BY DENYING
            DEFENDANT’S SECOND PCR PETITION FOR
            POST-CONVICTION      RELIEF     WITHOUT
            ADDRESSING THE MERITS OF HIS INEFFECTIVE
            ASSISTANCE OF PCR COUNSEL CLAIM FOR PCR
            COUNSEL’S FAILURE TO RAISE ON THE INITIAL
            PCR PETITION THAT DEFENDANT WAS
            [DENIED] THE EFFECTIVE ASSISTANCE OF
            COUNSEL DURING PLEA NEGOTIATIONS.

            POINT II

            THE DEFENDANT’S MOTION FOR POST-
            CONVICTION RELIEF SHOULD NOT BE BARRED
            BY PROCEDURAL CONSIDERATION BECAUSE
            DEFENDANT’S CLAIMS OF INEFFECTIVENESS
            OF COUNSEL FALL WITHIN BOTH STATE AND
            FEDERAL CONSTITUTION AND NEW JERSEY
            COURT RULES GOVERNING SECOND PCR
            PETITIONS.




                                        4                                  A-2175-19
                                        II.

      We review the PCR court's legal conclusions de novo. State v. Harris,

181 N.J. 391

, 419 (2004). Where an evidentiary hearing has not been held, it is

within our authority "to conduct a de novo review of both the factual findings

and legal conclusions of the PCR court."

Id. at 421.

      "A second or subsequent petition for post-conviction relief shall be

dismissed unless . . . it is timely under Rule 3:22-12(a)(2) . . . ." R. 3:22-4(b).

Rule 3:22-12(a)(2) provides,

            Notwithstanding any other provision in this rule, no
            second or subsequent petition shall be filed more than
            one year after the latest of:

               A. 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; or

               B. 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; or

               C. the date of the denial of the first or subsequent
                  application for post-conviction relief where
                  ineffective assistance of counsel that represented
                  the defendant on the first or subsequent



                                        5                                   A-2175-19
                   application for postconviction relief is being
                   alleged.

"These time limitations shall not be relaxed, except as provided herein." R.

3:22-12(b).

      Defendant's second petition is untimely under Rule 3:22-12(a)(2). First,

defendant's petition is untimely under Rule 3:22-12(a)(2)(A) because he asserts

no newly recognized constitutional right. Next, defendant's petition is untimely

under Rule 3:22-12(a)(2)(B) because his claim, based on alleged ineffective

assistance of counsel prior to trial in 2011, asserts no evidence or information

that could not have been discovered earlier through the exercise of reasonable

diligence. Lastly, defendant's petition is untimely under Rule 3:22-12(a)(2)(C)

because the PCR court denied his first petition on December 2, 2016, more than

two years and seven months before he filed his second petition on July 19, 2019.

See also State v. Dillard, 

208 N.J. Super. 722

, 727 (App. Div. 1986) (holding

that the time bar is not tolled by the pendency of appellate review).

      Defendant's claim of fundamental injustice provides no refuge from the

time bar because Rule 3:22-12(a)(2) does not allow relief based on fundamental

injustice. See State v. Jackson, 

454 N.J. Super. 284

, 293-94 (App. Div. 2018)

(explaining that Rule 3:22-12(a)(1)(A), which allows for the late filing of a first




                                        6                                   A-2175-19
PCR petition where excusable neglect and a fundamental injustice are shown,

"has no application to second or subsequent petitions").

      Because "enlargement of Rule 3:22-12's time limits 'is absolutely

prohibited[,]'"

id. at 292

(citations omitted), defendant's second PCR petition

was properly dismissed as mandated by Rule 3:22-4(b) and we need not reach

the merits of defendant's remaining arguments.

Id. at 297.

      Affirmed.




                                       7                                A-2175-19

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