NOT FOR PUBLICATION WITHOUT THE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
DOCKET NO. A-2175-19
STATE OF NEW JERSEY,
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-
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).
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.
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.
[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
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.
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:
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.
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
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
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
application for postconviction relief is being
"These time limitations shall not be relaxed, except as provided herein." R.
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
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
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.