STATE OF NEW JERSEY VS. IRVIN MORALES (01-08-0292, SUSSEX 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                                 NOT FOR PUBLICATION WITHOUT THE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-5690-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

IRVIN MORALES,

     Defendant-Appellant.
________________________

                   Submitted September 16, 2020 – Decided November 17, 2020

                   Before Judges Whipple and Firko.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Sussex County, Indictment No. 01-08-0292.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Andrew R. Burroughs, Designated Counsel,
                   on the briefs).

                   Francis A. Koch, Sussex County Prosecutor, attorney
                   for respondent (Shaina Brenner, Assistant Prosecutor,
                   of counsel and on the briefs).

                   Appellant filed a pro se supplemental brief.

PER CURIAM
      Defendant Irvin Morales appeals from the April 17, 2019, denial of his

petition for post-conviction relief (PCR) without an evidentiary hearing. He

also appeals from the concurrent denial of his motion to compel DNA testing of

certain crime scene evidence. We affirm.

      Defendant raises the following issues on appeal.

            POINT I.
            MR. MORALES WAS ENTITLED TO RELAXATION
            OF THE TIME BAR BECAUSE HE HAD SHOWN
            EXCUSABLE NEGLECT AND THAT THE
            INTERESTS OF JUSTICE DEMANDED THAT HIS
            CLAIMS BE ADJUDICATED ON THE MERITS.

            POINT II.
            THE PCR COURT ERRED WHEN IT DENIED MR.
            MORALES' MOTION TO TEST THE DNA ON
            CIGARETTE BUTTS FOUND AT THE CRIME
            SCENE.

In his pro se supplemental brief, defendant raises these additional points.

            POINT I.
            MR. MORALES WAS ENTITLED TO HAVE JUDGE
            CONFORTI RECUSE HIMSELF BECAUSE HE HAD
            MADE A SHOWING THAT THE JUDGE WAS
            ACTUALLY BIASED AND/OR HIS ACTIONS
            GAVE THE APPEARANCE OF BIAS.

            POINT II.
            MR. MORALES' PCR COUNSEL PROVIDED
            INEFFECTIVE ASSISTANCE OF COUNSEL AS IT
            RELATES TO THE MOTION FOR RECUSAL.


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                                        2
       The facts underlying defendant's conviction for the victim's death are

stated in our decision on defendant's direct appeal, 1 and need not be repeated at

length herein. Because the basis of the PCR court's dismissal was the time bar

imposed under Rule 3:22-12(a), we focus on the relevant procedural history.

       On November 28, 2005, defendant pleaded guilty to felony murder,

N.J.S.A. 2C:11-3a(3), pursuant to Rule 3:9-2. Because he was charged with an

offense then punishable by death, the defendant was not required to provide a

factual basis, so numerous exhibits were offered. Upon receiving that evidence,

Judge Peter Conforti confirmed with defendant that he was freely and

voluntarily entering his plea of guilty with the full knowledge and advice of his

counsel, and the defendant acknowledged that no one was pressuring him to

plead guilty. The court then accepted the defendant's guilty plea.

       Defendant was sentenced in February 2006 to a thirty-year aggregate

prison term subject to an eighty-five percent period of parole ineligibility. We




1
    State v. Morales, No. A-6138-09T4 (App. Div. December 16, 2013).


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                                        3
affirmed his conviction and sentence, and certification 2 was denied in June

2014.3

        In June 2015, defendant filed a pro se PCR petition, and in August 2015

the court granted his request for assignment of counsel. A month later, the court

also granted the Office of the Public Defender's request for 120 days from

assignment to file an amended petition. Thereafter, two lawyers were assigned



2
    State v. Morales, 

218 N.J. 275

(2014).
3
   Extensive post-judgment litigation followed defendant's conviction. In July 2009,
more than three years after the entry of the judgment, defendant moved to file an appeal
as within time. The motion was returned unfiled. Three months later, in October 2009,
defendant filed a certification in support of a motion to file out of time, dated June 26,
2009. That motion was returned to him unfiled. In November 2009, defendant submitted
a certification in support of his motion to proceed as an indigent. A few weeks later, the
Office of the Public Defender advised defendant he was out of time to file an appeal and
advised him he could file a petition for PCR. That December, defendant filed a Notice
of Appeal, a Criminal Case Information Statement, a Notice of Motion for Leave to
Appeal as Indigent, an Indigency Certification, and a Certification of Service. In August
2010, defendant filed another Certification in Support of his Motions for Leave to Appeal
as Within Time; for the Assignment of Counsel; and for Transcripts.
        In August 2011, we granted defendant's motion to file his appeal as within time.
In January 2012, defendant filed a Notice of Motion to Remand for a State v. Coon, 

314 N.J. Super. 426

(App. Div. 1998), hearing and to Relieve the Public Defender as Counsel,
which we granted. The hearing was held on April 18, 2012, before Judge Conforti, and
defendant was assigned a new public defender.
        After resolving the defendant's representation issues, on July 26, 2012, we
removed defendant's appeal from the Excessive Sentence Calendar and placed it on the
plenary docket and entered a Scheduling Order on August 1, 2012. On December 16,
2013, we affirmed defendant's conviction.


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                                            4
in succession by the Public Defender's Office to represent defendant, and Judge

Conforti conducted dozens of Case Management Conferences and granted

liberal adjournments to confer, conduct investigations, and to ensure defendant's

participation in proceedings via remote appearances from New Hampshire .

      On January 5, 2017, through counsel, defendant moved to recuse Judge

Conforti, and in February 2018, moved to compel DNA testing of cigarette butts

from the area around the crime scene. Defendant's petition and the two motions

were then scheduled, and defendant was ordered to be present for the hearing.

On April 17, 2019, after hearing oral argument from counsel and defendant, the

court denied the motion to recuse and denied defendant's motion to compel DNA

testing.   Finally, the court denied the PCR petition without an evidentiary

hearing because it was time-barred. This appeal followed.

      Having conducted a de novo review, we reject defendant's arguments; we

agree that defendant's petition was time-barred, and defendant made no showing

of excusable neglect. Moreover, defendant made no showing that enforcement

of the time bar would result in a fundamental injustice. Rule 3:22-12(a)(1)

precludes PCR petitions filed more than five years after entry of a judgment of

conviction unless the delay was "due to defendant's excusable neglect and . . .

there is a reasonable probability that if the defendant's factual assertions were


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                                       5
found to be true enforcement of the time bar would result in a fundamental

injustice." Our Supreme Court has stated that "[t]he time bar should be relaxed

only 'under exceptional circumstances' because '[a]s time passes, justice

becomes more elusive and the necessity for preserving finality and certainty of

judgments increases.'" State v. Goodwin, 

173 N.J. 583

, 594 (2002) (second

alteration in original) (quoting State v. Afanador, 

151 N.J. 41

, 52 (1997)). When

a first PCR petition is filed more than five years after the date of entry of the

judgment of conviction, the PCR court should examine the timeliness of the

petition, and defendant must submit competent evidence to satisfy the standards

for relaxing the rule's time restriction. State v. Brown, 

455 N.J. Super. 460

, 470

(App. Div. 2018).

      To establish "excusable neglect," a defendant must demonstrate "more

than simply . . . a plausible explanation for a failure to file a timely PCR

petition." State v. Norman, 

405 N.J. Super. 149

, 159 (App. Div. 2009). Factors

to be considered include "the extent and cause of the delay, the prejudice to the

State, and the importance of the [defendant's] claim in determining whether

there has been an 'injustice' sufficient to relax the time limits." 

Afanador, 151 N.J. at 52

(quoting State v. Mitchell, 

126 N.J. 565

, 580 (1992)).




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       Defendant was sentenced on February 3, 2006. His petition for PCR was

filed on June 15, 2015, more than four years beyond the five-year time limit.

Defendant contends that there was excusable neglect for the late filing because

he was serving his New Jersey sentence in New Hampshire4 and was pursuing

his direct appeal.

       We reject these arguments. Defendant was housed in New Hampshire

after he requested a transfer; however, the assertion he was incapable of

pursuing post-judgment legal remedies from there is belied by the extensive

record of post-judgment litigation he conducted. In his pro se petition he

asserted he was actively engaged in challenging his conviction on direct appeal.

However, we have long rejected the argument that a direct appeal tolls the

restrictions of Rule 3:22-12. State v. Dillard, 

208 N.J. Super. 722

, 727 (App.

Div. 1986). Moreover, the Public Defender's Office advised him as early as

November 24, 2009, that he could file a petition for PCR.

       Defendant argues the court erred when it determined the motions without

the submission of briefs. We reject this argument as well. During oral argument

at the PCR hearing on April 17, 2019, Judge Conforti stated, "I gave counsel for

the defendant . . . an additional four months to, I believe, to submit an amended


4
    Defendant requested a transfer to New Hampshire to be near his family.
                                                                         A-5690-18T4
                                        7
petition to address relaxation of the five-year ban." There is no record that an

amended petition was ever filed despite the opportunity, and indeed, the

suggestion for defendant to do so.

      Defendant has also failed to show a reasonable probability that

enforcement of the time bar would result in a fundamental injustice. Defendant

asserts that he did not commit the offense and his attorney did not investigate .

He claims he only pleaded guilty because he was afraid of the death penalty.

Despite having entered a guilty plea, which he acknowledged under oath as free

and voluntary, he now asserts a third person killed the victim. This allegation

is the basis of his unsuccessful motion to have cigarette butts, which were

located at the scene where the victim's body was discovered, tested to see if

DNA matched the third person he identified.

      N.J.S.A.    2A:84A-32(a)(d)(4)      mandates    what    factors   must     be

demonstrated for the court to grant an application for post-conviction DNA

testing: "The court shall not grant the motion for DNA testing unless, after

conducting a hearing, it determines that . . . the eligible person has made a prima

facie showing that the evidence sought to be tested is material to the issue of the

eligible person's identity as the offender[.]"




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      Judge Conforti found that the cigarette butts were located in a public area

near the victim's body. The defendant's request for DNA testing was denied, the

judge stated, because testing would not exculpate the defendant if the butts did

not contain his DNA. We agree that defendant's request therefore does not meet

the standard of the statute, and affirm Judge Conforti's decision to reject the

petition for DNA testing of the cigarette butts.

      Finally, there was no showing that required an evidentiary hearing on

defendant's PCR petition. A defendant is entitled to an evidentiary hearing if he

establishes a prima facie case in support of the PCR petition. R. 3:22-10(b). To

establish a claim of ineffective assistance of counsel, a defendant must satisfy a

two-part test: (1) "counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment,"

and (2) "the deficient performance prejudiced the defense."         Strickland v.

Washington, 

466 U.S. 668

, 687 (1984); State v. Fritz, 

105 N.J. 42

, 52 (1987).

      Defendant's remaining arguments are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




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                                        9

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