                                      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                                NOT FOR PUBLICATION WITHOUT THE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-0044-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

HECTOR M. TIRADO II,

     Defendant-Appellant.
____________________________

                   Submitted March 16, 2020 – Decided July 27, 2020

                   Before Judges Messano and Ostrer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Somerset County, Indictment No. 05-02-
                   0071.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Monique D. Moyse, Designated Counsel, on
                   the brief).

                   Michael H. Robertson, Somerset County Prosecutor,
                   attorney for respondent (Lauren E. Bland, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      In November 2005, defendant Hector M. Tirado entered an open plea of

guilty to two counts of fourth-degree sexual contact, N.J.S.A. 2C:14-3(b)

(counts one and three); and third-degree endangering the welfare of a child,

N.J.S.A. 2C:24-4(a) (count two).1 At the plea hearing, the judge questioned

defendant about his understanding of the terms of the plea bargain and waiver

of his rights, after which, defense counsel elicited a factual basis for the charges.

The prosecutor also questioned defendant, specifically about the ages of both

defendant and the victim when the alleged offenses took place. Given the nature

of the charges, the judge informed defendant that he would be sentenced to

community supervision for life (CSL). Defendant also completed plea forms to

that effect.

      At the February 2007 sentencing, defense counsel argued for a non-

custodial probationary sentence. The judge denied counsel's request, stating that

although defendant did not "need the time in jail to reinforce the lesson" of his

wrongdoing, it was "necessary in order to promote a public perception that this


1
  "An 'open plea' [is] one that did not include a recommendation from the State,
nor a prior indication from the court, regarding sentence." State v. Kates, 426
N.J. Super 32, 42 n.4 (2012), aff'd 216 N.J. 263 (2014). Defendant was
originally charged in count one with second-degree sexual assault, N.J.S.A
2C:14-2(c), but that charge was downgraded to fourth-degree sexual contact
with a minor at the time of defendant's guilty plea.


                                                                             A-0044-18T3
                                         2
. . . conduct has serious consequences." Defendant was sentenced to a term of

eighteen months' probation conditioned on serving 120 days in the county jail.

In addition, defendant was ordered to register pursuant to Megan's Law and

placed on parole supervision for life (PSL).2

      Defendant moved to amend the judgment of conviction (JOC), arguing the

sentence, which included both probation and parole, was illegal. Pursuant to a

December 2, 2008 consent order, the JOC was amended to remove the

probationary term previously imposed, and to correct the statutory citation

regarding count one of the indictment. The amended JOC reflected defendant

was serving a sentence of parole supervision for life. The JOC was amended

yet again, in January 2011, to correct statutory references and to merge counts

one and three into count two of the indictment. The 2011 JOC again reflected

defendant's sentence to PSL.

      In 2017, more than six years after the entry of the final amended JOC, and

ten years after his initial sentencing, defendant filed a PCR petition alleging

ineffective assistance of counsel (IAC), and a motion to withdraw his guilty



2
  On the JOC, the word "community" was crossed out, and the handwritten word
"parole" was inserted prior to the words "supervision for life."



                                                                        A-0044-18T3
                                       3
plea.3 Defendant averred that although plea counsel told him he "would be on

[CSL]," counsel never advised him that a consequence of his guilty plea would

be a sentence to PSL. He also claimed that plea counsel "was confident that

[defendant] would do no jail time."

      Defendant argued that his petition was not time-barred because he was not

aware of the full consequences of a PSL sentence until 2013, when he was

arrested on a parole violation, and his life spiraled downward as a result.

Defendant claimed that he would not have entered a guilty plea if he knew about

the consequences of a PSL sentence. Defendant's motion to vacate his guilty

plea was predicated on the assertion that the plea was made "without a knowing

and voluntary waiver of rights," because he was never informed that he would

be sentenced to PSL.

      Judge Kevin M. Shanahan, who was not the judge at any of the previous

hearings, considered the arguments of counsel, and, in a well-reasoned written

opinion, denied the PCR petition without an evidentiary hearing and also denied

defendant's motion to withdraw his guilty plea. Judge Shanahan found that

defendant's PCR petition was filed well beyond the five-year time limit



3
   Counsel who represented defendant at the time of his guilty plea and at
sentencing passed away in 2010.
                                                                       A-0044-18T3
                                      4
contained in Rule 3:22-12, and defendant had failed to establish excusable

neglect. As the judge noted, defendant's 2008 amended JOC made it clear that

he was sentenced to PSL, and defendant's certification acknowledged that as of

2008, he began reporting to parole, not probation. As a result, Judge Shanahan

rejected defendant's claim that only his subsequent violation of PSL made him

aware that PSL was a component of his sentence that "possessed its own

conditions, requirements, and penalties distinct from those of [p]robation or

CSL . . . ."

      The judge also rejected defendant's claim that application of the time-bar

would result in a "fundamental injustice" by addressing the merits of defendant's

IAC claim.     Noting the differences between CSL and PSL and accepting

defendant's certification that plea counsel never discussed PSL with defendant,

the judge assumed arguendo that defendant had demonstrated "a reasonable

probability that counsel's performance was deficient," the first prong of the

Strickland/Fritz standard.4

      However, Judge Shanahan concluded defendant failed to demonstrate a

reasonable probability that plea counsel's deficient performance affected t he



4
  Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J.
42, 52 (1987).
                                                                         A-0044-18T3
                                       5
outcome. Fritz, 105 N.J. at 58. He noted the beneficial plea counsel secured for

defendant, which reduced count one of the indictment from a second- to fourth-

degree crime. The judge reasoned, "[W]ithout any plausible claim of innocence

or defense, defendant would have faced a harsher sentencing exposure, and,

more importantly, he would have faced the same PSL requirements had he

proceeded to trial, as opposed to entering a guilty plea." In sum, Judge Shanahan

concluded defendant's petition was time-barred, but, even if it were not,

defendant failed to satisfy the second prong of the Strickland/Fritz standard.

      The judge also addressed defendant's motion to withdraw his guilty plea

by considering the factors enunciated by the Court in State v. Slater, 198 N.J.

145 (2009).5 Judge Shanahan noted that defendant "present[ed] no claim of

innocence." The judge concluded that the nature and strength of defendant's

reasons for withdrawing did not justify relief, because defendant delayed

asserting prejudice from his PSL sentence for years. Judge Shanahan placed

little weight of the third Slater factor, recognizing that although defendant

benefited from a downgraded first count of the indictment, his guilty plea was


5
  These factors are: "(1) whether the defendant has asserted a colorable claim
of innocence; (2) the nature and strength of [the] defendant's reasons for
withdrawal; (3) [was the plea entered as part] of a plea bargain; and (4) whether
withdrawal would result in unfair prejudice to the State or unfair advantage to
the accused." Slater, 198 N.J. at 157–58.
                                                                         A-0044-18T3
                                        6
an open plea without any commitment from the State as to a sentence

recommendation.     Finally, the judge concluded permitting withdrawal of

defendant's guilty plea would likely prejudice the State "as more than thirteen

years ha[d] passed from the time of the underlying incident, and witnesses'

memories have likely faded during this time." The judge entered an appropriate

order, and this appeal followed.

      Defendant raises the following points for our consideration:

            POINT ONE

            [DEFENDANT]    IS  ENTITLED    TO   AN
            EVIDENTIARY HEARING ON HIS CLAIM THAT
            HIS ATTORNEY RENDERED INEFFECTIVE
            ASSISTANCE OF COUNSEL FOR MISINFORMING
            HIM ABOUT THE PENAL CONSEQUENCES OF
            HIS PLEA.

            POINT TWO

            [DEFENDANT'S] GUILTY PLEA MUST BE SET
            ASIDE.

            POINT THREE

            THE PCR COURT ERRONEOUSLY RULED THAT
            [DEFENDANT]'S INEFFECTIVENESS CLAIM WAS
            TIME-BARRED BECAUSE ANY DELAY IN FILING
            THE PETITION WAS DUE TO DEFENDANT'S
            EXCUSABLE NEGLECT AND THERE IS A
            REASONABLE PROBABILITY THAT IF THE
            DEFENDANT'S FACTUAL ASSERTIONS WERE
            FOUND TO BE TRUE, ENFORCEMENT OF THE

                                                                       A-0044-18T3
                                       7
             TIME[]BAR WOULD      RESULT                       IN      A
             FUNDAMENTAL INJUSTICE.

Having considered these arguments in light of the record and applicable legal

standards, we affirm, substantially for the reasons expressed by Judge Shanahan.

We add only the following.

      Rule 3:22-12(a)(1)(A) generally requires that absent a defendant's

"excusable neglect" and the "reasonable probability" that a "fundamental

injustice" would result if "defendant's factual assertions were . . . true [,]" a first

PCR petition must be filed no more than five years "after the date of entry . . .

of the judgment of conviction that is being challenged . . . ." The time bar is not

tolled by the pendency of appellate review, State v. Dillard, 208 N.J. Super. 722,

727 (App. Div. 1986), or by the entry of an amended JOC following re-

sentencing, State v. Dugan, 289 N.J. Super. 15, 20–21 (App. Div. 1996). When

a PCR petition is filed more than five years after the JOC,

             a PCR judge has an independent, non-delegable duty to
             question the timeliness of the petition, and to require
             that defendant submit competent evidence to satisfy the
             standards for relaxing the rule's time restrictions
             pursuant to Rule 3:22-12. Absent sufficient competent
             evidence to satisfy this standard, the court does not
             have the authority to review the merits of the claim.

             [State v. Brown, 455 N.J. Super. 460, 470 (App. Div.
             2018).]


                                                                               A-0044-18T3
                                          8
      We agree with Judge Shanahan's reasoning in rejecting defendant's claim

of excusable neglect. Defendant was fully aware in 2008 that he was subject to

PSL as a result of his earlier guilty plea. "A defendant cannot decide to remain

intentionally ignorant of the legal consequences of his decision as a means of

establishing excusable neglect." Id. at 471. Nor has defendant shown that

enforcing the five-year time bar would cause fundamental injustice. The Court

has said, "Our courts will find fundamental injustice when the judicial system

has denied a 'defendant with fair proceedings leading to a just outcome' or when

'inadvertent errors mistakenly impacted a determination of guilt or otherwise

wrought a miscarriage of justice.'" State v. Nash, 212 N.J. 518, 546 (2013)

(quoting State v. Mitchell, 126 N.J. 565, 587 (1992)). Defendant's claim that

mistaken references at the time he pled guilty to CSL, instead of PSL, led him

to plead guilty when he otherwise would not have pled guilty and instead would

have gone to trial, is not rational. See, e.g., State v. O'Donnell, 435 N.J. Super.

351, 371 (App. Div. 2014) ("[T]o obtain relief from a conviction following a

plea, 'a petitioner must convince the court that a decision to reject the plea

bargain would have been rational under the circumstances.'" (quoting Padilla v.

Kentucky, 559 U.S. 356, 372 (2010))).




                                                                           A-0044-18T3
                                        9
      The standards applicable to a defendant's motion to withdraw his guilty

plea differed from those required in considering his PCR petition. Id. at 368–

72.   Judge Shanahan properly considered the Slater factors in denying

defendant's motion to withdraw his guilty plea, and we find no mistaken exercise

of his discretion in this regard. Slater, 198 N.J. at 156.

      Affirmed.




                                                                        A-0044-18T3
                                       10
