SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5616-16T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLIE RODRIGUEZ,

Defendant-Appellant.

____________________________

Submitted May 22, 2018 – Decided June 22, 2018

Before Judges Fasciale and Moynihan.

On appeal from Superior Court of New Jersey, 

Law Division, Passaic County, Indictment No. 

04-06-0741.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Kevin G. Byrnes, Designated 

Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, 

attorney for respondent (Christopher W. Hsieh, 

Chief Assistant Prosecutor, of counsel and on 

the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
2 A-5616-16T3

Defendant appeals the denial – without an evidentiary hearing 

— of his petition for post-conviction relief (PCR) involving four 

matters on which he was sentenced1 in October 2003, January 2005,

June 2009 and October 2009,2 arguing:

POINT I

THE FIVE-YEAR PROCEDURAL BAR FOR THE FILING 

OF A PETITION FOR POST-CONVICTION RELIEF (PCR) 

SHOULD NOT APPLY.

A. ENFORCING THE PROCEDURAL BAR 

 

1 Defendant was sentenced pursuant to plea agreements as follows:

1. A two-year probationary term in October 2003 on a 

fourth-degree conspiracy to distribute a controlled 

dangerous substance (CDS), N.J.S.A. 2C:5-2; 2C:35-

5(b)(12) (03-06-0615A).

2. A five-year probationary term in January 2005 on a 

third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) 

(04-06-00741I).

3. A five-year probationary drug-court term in July 

2009 on a third-degree distribution of CDS in a school 

zone, N.J.S.A. 2C:35-7 (09-05-0559A). 

4. A five-year probationary drug-court term in 

November 2009 on a third-degree theft from the person, 

N.J.S.A. 2C:20-2; 2C:20-3 (09-09-1071A).

He pleaded guilty to a violation of probation in January 2014 on 

09-09-1071A, and was sentenced to a three-year prison term.

2 Although defendant was sentenced in late June 2009 and late 

October 2009, the judgments of conviction were not filed until 

July 2009 and November 2009, respectively. See State v. Dugan, 

289 N.J. Super. 15, 20 (App. Div. 1996) (concluding a PCR petition 

"must be filed within five years of entry of the judgment 

memorializing the conviction"); see also R. 3:22-12; R. 3:21-5.
3 A-5616-16T3

 CONSTITUTES A MANIFEST INJUSTICE. 

B. THE PROCEDURAL BAR SHOULD NOT APPLY 

 DUE TO EXCUSABLE NEGLECT. 

POINT II

THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE 

OF COUNSEL AS GUARANTEED BY THE SIXTH 

AMENDMENT TO THE UNITED STATES CONSTITUTION 

AND ART. 1, PAR 10 OF THE NEW JERSEY 

CONSTITUTION.

POINT III

THE DEFENDANT IS ENTITLED TO AN EVIDENTIARY 

HEARING.

We conclude these arguments are meritless and affirm.

Absent an evidentiary hearing, our review of the factual 

inferences drawn by the PCR court from the record is de novo. 

State v. Blake, 444 N.J. Super. 285, 294 (App. Div.), certif. 

denied, 226 N.J. 213 (2016). Likewise, we review de novo the PCR 

court's legal conclusions. Ibid.

All of defendant's arguments center on the contention that 

he was never advised of what he terms "the material collateral

consequences" of his plea agreements: that his New Jersey 

convictions could be used to enhance his sentence on federal 

charges on which he was arrested in May 2016.

We reject that basis as a reason to relax the strictures of 

Rule 3:22-12(a)(1) which, at the time defendant filed his petition, 

provided in pertinent part: 
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no petition shall be filed pursuant to this 

rule more than 5 years after the date of entry 

pursuant to Rule 3:21-5 of the judgment of 

conviction that is being challenged unless it 

alleges facts showing that the delay beyond 

said time was due to defendant's excusable 

neglect and that there is a reasonable 

probability that if the defendant's factual 

assertions were found to be true enforcement 

of the time bar would result in a fundamental 

injustice.

"[A] court should relax Rule 3:22-12's bar only under exceptional 

circumstances. The court should consider the extent and cause of 

the delay, the prejudice to the State, and the importance of the 

petitioner's claim in determining whether there has been an 

'injustice' sufficient to relax the time limits." State v. 

Mitchell, 126 N.J. 565, 580 (1992).

Defendant did not file a petition because he did not know his 

prior convictions would enhance the sentence meted out in 

connection with his 2016 federal charges. "Ignorance of the law 

and rules of court does not qualify as excusable neglect." State 

v. Merola, 365 N.J. Super. 203, 218 (Law Div. 2002), aff'd o.b., 

365 N.J. Super. 82 (App. Div. 2003). Similarly, a defendant's

"lack[] [of] sophistication in the law" is not excusable neglect. 

State v. Murray, 162 N.J. 240, 246 (2000). Further, defendant's 

significant filing delay – ranging from seven to thirteen years —

would obviously prejudice the State if it was required to 

reconstruct these matters for trial. 
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We also determine that the substance of defendant's claim 

presents no injustice to relax the Rule, and that it also fails 

to demonstrate that his trial counsel erred so seriously that he 

failed to function as a constitutionally-guaranteed counsel.3 We 

 

3 To establish a prima facie claim of ineffective assistance of 

counsel, the defendant

must satisfy two prongs. First, he must 

demonstrate that counsel made errors "so 

serious that counsel was not functioning as 

the 'counsel' guaranteed the defendant by the 

Sixth Amendment." Strickland v. Washington, 

466 U.S. 668, 687 (1984); State v. Fritz, 105 

N.J. 42, 52 (1987). An attorney's 

representation is deficient when it "[falls] 

below an objective standard of 

reasonableness." Strickland, 466 U.S. at 688; 

see Fritz, 105 N.J. at 58. 

Second, a defendant "must show that the 

deficient performance prejudiced the 

defense." Strickland, 466 U.S. at 687; Fritz, 

105 N.J. at 52. A defendant will be prejudiced 

when counsel's errors are sufficiently serious 

to deny him "a fair trial." Strickland, 466 

U.S. at 687; Fritz, 105 N.J. at 52. The 

prejudice standard is met if there is "a 

reasonable probability that, but for counsel's 

unprofessional errors, the result of the 

proceeding would have been different."

Strickland, 466 U.S. at 694; Fritz, 105 N.J. 

at 52. A "reasonable probability" simply 

means a "probability sufficient to undermine 

confidence in the outcome" of the proceeding. 

Strickland, 466 U.S. at 694; Fritz, 105 N.J. 

at 52. 

[State v. O'Neil, 219 N.J. 598, 611 (2014)

(alteration in original).]
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previously held the failure of counsel to advise a defendant "of 

possible or even potential enhancement consequences of future 

aberrant conduct is not ineffective assistance of counsel. There 

is no constitutional requirement for such advice. It involves 

only a collateral issue." State v. Wilkerson, 321 N.J. Super. 

219, 227 (App. Div. 1999). Thus none of defendant's counsel were 

ineffective because they did not advise him he would face a greater 

sentence if he was later convicted in federal court. Likewise, 

the failure to so advise him does not implicate an injustice that 

would extend the five-year filing limit.

We determine the balance of defendant's arguments lack 

sufficient merit for discussion in this opinion. R. 2:11-3(e)(2). 

We add, defendant did not present a prima facie case in support 

of his PCR application by demonstrating a reasonable likelihood 

of succeeding to warrant an evidentiary hearing. R. 3:22-10(b); 

State v. Preciose, 129 N.J. 451, 462-63 (1992).

Affirmed.