                        NOT FOR PUBLICATION WITHOUT THE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-3540-15T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

LUIS F. DASILVA,

     Defendant-Appellant.
___________________________________

              Submitted March 12, 2018 – Decided August 21, 2018

              Before Judges Ostrer and Rose.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No. 03-
              06-2254.

              Luis F. DaSilva, appellant pro se.

              Robert D. Laurino, Acting Essex County
              Prosecutor, attorney for respondent (Tiffany
              M. Russo, Special Deputy Attorney General/
              Acting Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM

        Defendant appeals from the denial of his second petition for

post-conviction relief (PCR) after an evidentiary hearing.                         He

collaterally challenges his 2004 convictions for murder, felony
murder, robbery and other related crimes.      He contends he received

ineffective   assistance   of   counsel   at   the   pretrial,    trial,

appellate, and PCR stages. He also argues that his trial counsel's

representation was per se ineffective because it was hampered by

a conflict of interest and he was deprived the counsel of his

choice.   He asserts that the underlying facts that support his

conflict of interest claim – that his attorney had been arrested

in New York and was under investigation for other suspected crimes

at the time of defendant's trial – are newly discovered and entitle

him to PCR.

     Because the record does not demonstrate that defendant's

petition was timely, we are constrained to reverse the PCR court's

order and remand for further proceedings.        See R. 3:22-4(b), -

12(a)(2), -12(b).

     We presume familiarity with the underlying facts, which we

reviewed in defendant's previous appeals.       See State v. DaSilva,

No. A-4633-12 (Oct. 28, 2014) (DaSilva III) (appeal of order

dismissing second PCR); State v. DaSilva, No. A-3334-10 (Jul. 25,

2012) (DaSilva II) (appeal of denial of first PCR); State v.

DaSilva, No. A-2039-06 (Jul. 8, 2009) (DaSilva I) (direct appeal).

However, we briefly recount the procedural history surrounding his

second PCR petition.



                                  2                              A-3540-15T4
     On October 3, 2011, defendant filed his second PCR petition

while his appeal from the denial of his first PCR petition was

pending.      The    PCR    court    dismissed     the    petition;       the     court

mistakenly concluded the second filing was premature because the

appeal involving the first PCR petition was still pending.                        After

that appeal concluded, defendant in 2013 requested permission to

file a second PCR petition and reinstate his 2011 claims.                            The

trial   court      viewed   that    request     for     permission    to   file        as

defendant's actual petition and dismissed it for lack of factual

support.    Defendant appealed.

     We    found    in   DaSilva    III   that    the    trial    court    erred       in

dismissing the October 2011 petition.              The trial court misapplied

Rule 3:22-6A.      See DaSilva III, slip op. at 9.           We recognized that

the October 2011 petition was filed within one year of the denial

of defendant's first PCR petition.               Id. at 8.       But, the October

2011 petition was not included in the record; so, we could not

determine its timeliness.           Id. at 9-10.        We allowed defendant to

file a second petition, and instructed the trial court to apply

Rule 3:22-12(a)(2) and Rule 3:22-4(b) on remand to determine

whether defendant's second petition "would be deemed timely if it

had been filed in October 2011."              Id. at 9-10.       Treating that new

petition as if it were filed in October 2011, the court had to

examine the new petition, to ascertain whether it timely raised

                                          3                                     A-3540-15T4
points based on a newly recognized constitutional right, R. 3:22-

12(a)(2)(A), newly discovered evidence, R. 3:22-12(a)(2)(B), or

ineffective assistance of PCR counsel, R. 3:22-12(a)(2)(C).1

       We also found defendant's 2013 request for permission to file

was dismissed in error.         DaSilva III, slip op. at 10.       Defendant

alleged in vague terms that "new evidence ha[d] come to light to

support PCR."       Ibid.   Under Rule 3:22-12(a)(2)(B), defendant was

entitled to file a second or subsequent PCR petition within one

year of "the date on which the factual predicate for the relief

sought was discovered, if that factual predicate could not have

been   discovered     through   the   exercise   of   reasonable   diligence

. . . ."    Ibid.

       Upon our remand, the PCR court did not expressly address

whether, or to what extent, defendant's petitions were timely.

Instead, it entertained oral argument on defendant's substantive

claims and ordered an evidentiary hearing solely on defendant's

claim pertaining to his right to counsel of his choice.            Defendant

and his parents testified, as well as the assistant prosecutor who

tried his case.       Their testimony centered on defendant's claims

that his trial attorney had a conflict of interest, and he was


1
  New claims of ineffectiveness by trial counsel would be time-
barred.   Defendant was obliged to cast his claims in terms of
ineffective assistance of PCR counsel, newly discovered evidence,
or newly recognized rights, in compliance with Rule 3:22-12(a)(2).

                                       4                             A-3540-15T4
denied his constitutional right to counsel of his choice.       The

hearing testimony also touched on the effectiveness of defendant's

trial counsel. In oral and written decisions, the PCR court denied

defendant relief, relying on the hearing testimony and documentary

record.

     Defendant raises the following points for our consideration:

          POINT I
          THE PCR COURT ERRED WHEN IT RULED THAT
          APPELLANT WAS NOT DENIED THE RIGHT TO
          EFFECTIVE ASSISTANCE OF PRETRIAL, TRIAL,
          APPELLATE, AND PCR COUNSEL, AS GUARANTEED BY
          THE U.S. CONT. AMEND VI, AND THE N.J. CONST.
          ART. I, PAR. 10.

          POINT II
          APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE
          OF PCR COUNSEL BECAUSE COUNSEL ARGUED AN ISSUE
          FROM AN UNRELATED CASE IN APPELLANT'S BRIEF
          IN VIOLATION OF U.S. CONST. AMEND. VI.

          POINT III
          THE PCR JUDGE ERRED WHEN IT [sic] RULED THAT
          APPELLANT WAS NOT DEPRIVED HIS RIGHT TO
          COUNSEL OF CHOICE DUE TO THE UNEXPLAINED
          WITHDRAWAL OF HIS RETAINED ATTORNEY AND THE
          SUBSTITUTION OF AN ASSOCIATE ATTORNEY WITHOUT
          DEFENDANT'S WRITTEN CONSENT, IN VIOLATION OF
          THE U.S. CONST. AMEND VI AND N.J. COURT RULE
          1:11-2.

          POINT IV
          THE PCR JUDGE ERRED IN HER RULING WHEN SHE
          STATED THAT APPELLANT WAS NOT DEPRIVED OF HIS
          RIGHT TO BE PRESENT AT EVERY CRITICAL STAGE
          OF HIS DEFENSE AND WAS NOT DEPRIVED OF
          CRITICAL INFORMATION NECESSARY TO MAKE A
          KNOWING AND INTELLIGENT DECISION TO PERMIT
          SUBSTITUTION OF COUNSEL, IN VIOLATION OF THE
          U.S. CONST. VI, XIV.

                                5                          A-3540-15T4
POINT V
THE PCR JUDGE ERRED IN ITS [sic] RULING THAT
APPELLANT WAS NOT DENIED THE EFFECTIVE
ASSISTANCE OF TRIAL, APPELLATE, AND PCR
COUNSEL FOR THEIR INDIVIDUAL FAILURE TO
PROPERLY OBJECT OR ADVANCE THE APPELLANT'S
RIGHT TO CONFRONT THE STATE'S WITNESS [sic]
ABOUT THEIR OTHER CRIMES OR BAD ACTS, IN
VIOLATION OF U.S. CONST. AMENDS. VI, XIV.

POINT VI
THE PCR JUDGE ERRED IN HER DETERMINATION THAT
THE PROSECUTOR DID NOT IMPLY THAT ONCE A
CRIMINAL APPELLANT CHOOSES TO TAKE THE WITNESS
STAND AND TESTIFY, HE THEN HAS THE BURDEN TO
PRODUCE EVIDENCE TO ESTABLISH HIS INNOCENCE.
AND THAT NO CURATIVE INSTRUCTION WAS NEEDED
IN THE FINAL JURY CHARGE, AND THAT THE TRIAL
JUDGE DID NOT FAIL TO INSTRUCT THE JURY THAT
THE BURDEN OF PROOF NEVER SHIFTS TO THE
APPELLANT, OR THE APPELLANT HAVE [sic] AN
OBLIGATION TO PROVE HIS INNOCENCE OR OFFER ANY
PROOF OF HIS INNOCENCE IN VIOLATION OF THE DUE
PROCESS CLAUSE, AND RIGHT TO A FAIR TRIAL, AS
GUARANTEED BY U.S. CONST. AMENDS V, XIV.

POINT VII
THE PCR JUDGE ERRED WHEN IT DETERMINED THAT
THE TRIAL COURT DID NOT MAKE NUMEROUS ERRORS,
OMISSIONS, AND ABBREVIATIONS TO THE FINAL JURY
CHARGE, WHICH DEPRIVED THE APPELLANT OF A
PROPERLY INSTRUCTED JURY AND A FAIR TRIAL, IN
VIOLATION OF U.S. CONST. AMENDS. VI AND XIV.

POINT VIII
THE PCR JUDGE ERRED IN HER RULING THAT
APPELLANT DID NOT SATISFY THE SECOND PRONG OF
THE STANDARD SET IN STRICKLAND WHEN SHE STATED
THAT HIS PRETRIAL COUNSEL FAILED TO FILE
PRETRIAL MOTIONS TO SUPPRESS OR SANITIZE
PREJUDICIAL   TESTIMONY   BY   THE   ARRESTING
OFFICERS AND N.J.R.E. 404(B) EVIDENCE SEIZE
[sic] PURSUANT TO THE DEFENDANT'S ARREST.
EVIDENCE THAT WAS SEIZED OVER SIX MONTHS AFTER

                      6                          A-3540-15T4
           THE INSTANT OFFENSE, WAS UNRELATED TO THE
           INSTANT OFFENSE WAS IMPROPERLY ADVANCED BY THE
           STATE TO PROVE "FLIGHT."       THEREFORE, THE
           APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL
           RIGHT TO THE EFFECTIVE ASSISTANCE AND A FAIR
           TRIAL. ADDITIONALLY APPELLATE AND PCR COUNSEL
           WERE INEFFECTIVE FOR FAILING TO ADVANCE THIS
           CLAIM.

           POINT IX
           THE PCR JUDGE ERRED IN HER DECISION THAT
           PRETRIAL   AND   TRIAL    COUNSEL   WERE   NOT
           INEFFECTIVE WHEN THEY EACH FAILED TO FILE
           MOTIONS TO COMPEL THE STATE TO PROVIDE CALL
           LOG EVIDENCE FOR OTHER PHONE AND BEEPER
           NUMBERS RELATED TO THIS CASE, AS WELL AS THE
           CALL OUT LOGS FOR POLICE AND OTHER EMERGENCY
           RESPONDER [sic], TO REFUTE THE VERACITY OF THE
           STATE'S STAR WITNESSES AGAINST THIS APPELLANT.

           POINT X
           THE PCR JUDGE ERRED IN HER DECISION THAT
           APPELLANT DID NOT PRESENT NEWLY DISCOVERED
           EVIDENCE TO REVEAL THAT HIS TRIAL COUNSEL,
           PAUL BERGRIN, ESQ. AND HIS LAW OFFICE SHOULD
           HAVE BEEN RELIEVED AS COUNSEL DUE TO A
           CONFLICT OF INTEREST TO THE DEFENDANT.

           POINT XI
           THE PCR JUDGE ERRED WHEN HE [sic] STATED THAT
           THE CUMULATIVE ERRORS DETAILED IN THIS
           APPELLANT'S BRIEF DID NOT RENDERED [sic] THE
           TRIAL UNFAIR THUS DENYING THE APPELLANT A NEW
           TRIAL.

     We decline to reach the merits of defendant's claims.                    In

DaSilva   III,   we   reversed   the       PCR   court's   orders   dismissing

defendant's 2011 and 2013 petitions and remanded with instructions

that the court apply Rule 3:22-12(a)(2) and 3:22-4(b) to: (1) the

petition we permitted defendant to file instead of the mistakenly


                                       7                               A-3540-15T4
dismissed October 2011 petition, which would be treated as if

filed in October 2011; and (2) the petition we permitted defendant

to file, raising the newly discovered evidence claims he referenced

in his March 2013 filing, which would be treated as if filed in

March 2013.     DaSilva III, slip op. at 9-10.    We appreciate the

time and effort the PCR court has already expended in reviewing

this matter, conducting an evidentiary hearing, and preparing its

two opinions.    Yet, the PCR court was obliged, consistent with our

decision in DaSilva III, to address the timeliness of defendant's

petitions.    See Triffin v. Automatic Data Processing, Inc., 411

N.J. Super 292, 306 (App. Div. 2010) (stating that the trial court

must comply with the appellate court's mandate).      The PCR court

did not do so.

     Rule 3:22-12(a)(2) imposes strict time limitations on the

filing of second or subsequent PCR petitions.     "[E]nlargement of

Rule 3:22-12's time limits 'is absolutely prohibited.'"    State v.

Jackson, 454 N.J. Super. 284, 293 (App. Div. 2018) (quoting Aujero

v. Cirelli, 110 N.J. 566, 577 (1988)).     We held that Rule 3:22-

12(a)(2)'s time limits cannot be relaxed because "the Supreme

Court in 2009 and 2010 amended Rule 1:3-4, Rule 3:22-4(b), and

Rule 3:22-12 to preclude enlargement or relaxation."    Id. at 287;

see also R. 3:22-12(b) (stating that except where indicated, the

time limitations of Rule 3:22-12 "shall not be relaxed").

                                  8                          A-3540-15T4
       An untimely petition "shall be dismissed" under Rule 3:22-

4(b).    Addressing an untimely first PCR petition, we recently held

that    "[a]bsent   sufficient    competent   evidence   to   satisfy"   the

standard for enlargement of time under Rule 3:22-12(a)(1)(A), "the

court does not have the authority to review the merits of the

claim" for PCR.      State v. Brown, ___ N.J. Super. ___, ___ (App.

Div. 2018) (slip op. at 14).              Rather, the PCR court "has an

independent, non-delegable duty to question the timeliness of the

petition . . . ."     Ibid.      The same principle applies to a second

petition, which is subject to non-enlargeable time constraints.

       Absent the PCR court's threshold timeliness determination,

we decline to reach the merits of defendant's claims.            Nor shall

we attempt to address the timeliness issue ourselves, as the record

on appeal does not include copies of the petitions defendant filed

after our decision in DaSilva III.          We are constrained to remand

again for resolution of that issue.

       Reversed and remanded.      We do not retain jurisdiction.




                                      9                            A-3540-15T4
