SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-2742- 21 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. CARLOS LOPEZ, a/k/a CARLOS M. LOPEZ, Defendant-Appellant.

_______________________

Submitted September 26, 2023

– Decided December 21, 2023 Before Judges Gilson and DeAlmeida. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 13

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- 0511. Carlos Lopez, appellant pro se. Yolanda Ciccone, Middlesex County Prosecutor, attorney for respondent (Patrick F. Galdieri, II, 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 2742

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Defendant Carlos Lopez appeals from the March 3, 2 022 order of the Law Division den ying his second petition for post-conviction relief (PCR) as untimely and his application for appointment of cou nsel. We affirm.
I. The following facts are derived from the record. In 2014, a jury convicted defendant of first-degree armed robbery, N.J.S.A. 2 C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J .S.A. 2C:39-4(a); thirddegree theft by unlawful taking, N.J.S.A. 2C:20-3(a ); third-degree terroristi c threats, N.J.S.A. 2C:12-3(b); and fourth-degree agg ravated assault, N.J.S.A. 2C:12-1(b)(3). In a separate trial that immediatel y followed, the jury convicted defendant of second-degree certain persons not to h ave weapons, N.J.S.A. 2C:39-7(b)(1). On the armed robbery conviction, the trial court s entenced defendant to a twenty-year term of incarceration, with an eighty-f ive-percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The remaining convictions relating to the robbery were merged into the armed robbery conviction. The trial court also sentenced defendant to a conse cutive seven-year term of incarceration, with a five-year period of parole ineligibility, on the certain persons offense.3 A- 2742

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Defendant's convictions arose from the armed robbe ry of a gas station attendant in Highland Park. At trial, the victim t estified that a man in a gray hooded sweatshirt and black jacket approached the s tation on foot, pointed a gun at his head, and demanded money. After taking appr oximately $800, the gunman fled toward Woodbridge Avenue. During the r obbery, the victim tried to touch the gun, causing a plastic piece to fall o ff the weapon. The following day, the victim told a detective he could easily id entify the robber because he had come to the gas station to try to sell him a bi cycle three days earlier. In addition, the victim reported that the robber ha d previously attempted to sell him raincoats or ponchos from a green Dodge minivan. The detective who was interviewing the victim recalled that a yea r earlier he encountered defendant with a box of raincoats in the back of a green Dodge min ivan. Three days after the robbery, the victim identified defen dant from a photo array. The following day, officers arrested defendant at his home. During the arrest, the officers saw, but did not seize, a gray hooded sweatshirt that matched the description the victim had given of the suspect 's clothing. After waiving his Miranda 1 rights, defendant initially denied knowing the gas station in question, but eventually admitted that the gas station was ne ar a Bank of America branch

1 Miranda v. Arizona, 384 U.S. 436 (1966).4 A- 2742

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he used frequently, that he sold raincoats out of h is minivan at gas stations, and that he tried to sell a bicycle to the attendant ab out a week before the robbery. He stated he was at home with his wife and cousin o n the night of the robbery. During a subsequent search of defendant's home, po lice seized the gray hooded sweatshirt, as well as a black jacket matchi ng the victim's description of the robber's clothing. In addition, officers found two handguns, one with a broken piece of plastic, and a stun gun in a closet belonging to Ralph Cruz, a friend of defendant's wife, with whom the couple li ved. Cruz testified that on the night of the robbery he drove defendant, who wa s wearing a gray hooded sweatshirt, to a pharmacy a few blocks from the gas station. According to Cruz, after defendant completed his purchase, he returned to the car. As Cruz drove to a convenience store, defendant asked him to turn onto a side street near the gas station and park. Defendant left the car, said he "would be right back," and headed on foot toward Woodbridge Avenue in the dire ction of the gas station. Six minutes later, defendant returned and said he h ad "just robbed a gas station." While Cruz did not see a gun in defendant's possess ion, he noticed "something was bothering" defendant in the area of his waist. At trial, Cruz identified defendant in a video rec ording captured by a surveillance camera at the pharmacy about twenty mi nutes prior to the robbery.5 A- 2742

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Defendant was wearing a gray hooded sweatshirt. In addition, a surveillance recording from the Bank of America branch showed so meone fitting the suspect's description running from the gas station toward Woodbridge Avenue. On direct appeal, we affirmed defendant's convicti ons and sentence. State v. Lopez, No. A-4552-14 (App. Div. Apr. 11, 2017). The Supreme Court denied defendant's petition for certification. State v. L opez, 233 N.J. 111 (2017). Defendant subsequently filed a PCR petition allegi ng he received ineffective assistance of counsel at trial. He arg ued his attorney failed to investigate defendant's wife as an alibi witness. In a certification attached to the petition, defendant's wife attested that she was at work on the night of the robbery and made numerous phone calls to the landli ne at the couple's house. She certified that she spoke with defendant on the landline "at various times throughout the afternoon and into the evening." Sh e also certified that had she been called as a witness she would have testified t he couple regularly paid their bills, even though defendant had been out of work f or several months at the time of the robbery. Defendant submitted a nearly ident ical certification. Both defendant and his wife certified that trial counsel advised them the proposed alibi testimony was not strong and should not be us ed at trial.6 A- 2742

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On December 14, 2018, the trial court issued an or der denying defendant's first PCR petition without an evidentiary hearing. We affirmed the trial court's decision. State v. Lopez, No. A- 2838 -18 (App. Div. Oct. 15, 2020). The Supreme Court denied defendant's petition for certi fication. 245 N.J. 58 (2021). On March 2, 2021, defendant filed a second PCR pet ition in the Law Division. He alleged his trial counsel was ineffective for: (1) "breach ing attorney[-]client confidentiality by informing th e court on" defendant ; (2) "telling [defendant ] that he was getting a mistrial that never came to fruition[ ;]" (3) " putting himself in [the] position of becoming a potential State's witness against" defendant; and (4) "telling the court that he wanted to be relieved from representation of [defendant] and not continuing to zealously represent [defendant's] best interest, when the court prejudi cially tainted and tampered with the individual jurors during its [] voir dire." In addition, defendant alleged that his first PCR counsel was ineffective for not rai sing these claims in his first PCR petition. Defendant also alleged that his tria l counsel was ineffective for failing to request DNA testing on the gun found in Cruz's room and for not presenting as a witness an investigator to whom def endant alleges the victim admitted not touching the gun during the robbery. Defendant moved for the appointment of second PCR counsel.7 A- 2742

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In support of his allegations, defendant alleged t hat during his trial he had a conversation with his counsel, which his counsel subsequently revealed to the court. In addition, defendant alleged that his cou nsel informed him that as a result of the disclosure the court would declare a mistrial. Defendant's petition cited the following passage from the trial court tr anscript:

The Court: Before we broke you indicated that you h ad confidence in your lawyer, that he was doing a good job for you. And I will tell you, Mr. Lopez, he is doi ng a good job for you. He's a very competent lawyer. B ut he also has an absolute ethical obligation to be ca ndid with the court. So, don't blame him for what he ha s done. He's doing what he must do legally. Do you understand that? Defendant: [Y]es, Sir. The Court: He's reported to the court . . . there w as a conversation in which you intimated, or indicated t hat in fact there was some other person who was going t o have somebody reach out for one of the jurors. Do you understand that? That is a crime. And I'm sure yo ur lawyer has told you, don't talk about it, follow yo ur lawyer's advice. There are several different things we can do. Firs t I'm going to ask each and every individual juror if in fact anybody has approached them to talk to them. And I suspect they are going to say no. I'm going to say good, please, don't infer anything from this conversation , thank you very much, please come back tomorrow. Go back in and then come back tomorrow. And then we'r e going to finish this case, okay?8 A- 2742

- 21 Because I don't think you can benefit, by the way, [from] a mistrial by causing it yourself. The court thereafter questioned each of the jurors . When questioning juror number 1, the court stated "I've been asked to make an inquiry, so I'm going to do that " before asking if the juror had been contacted by an yone outside of the court. The court did not make a similar remark to any of the remaining jurors , stating instead something to the effect of what the court said to juror number 2: "[o]n occasion, we ask this question just to make s ure everything is okay." The next day, defendant's counsel moved to be reli eved as counsel. He stated th at he was "in a position in which the prosecutor is a t least leaving open the possibility of me being a witness in a future c riminal case against" defendant , which he described as "an unresolvable conflict." The attorney also stated he

was unc omfortable with having been ethically compelled to reveal his conversation with defendant. The court denied the motion. After defendant's conviction, he obtained new coun sel. In support of a motion for a new trial, defendant's new counsel arg ued that the trial court's voir dire of the jurors inquiring whether anyone had con tacted them was prejudicial and reversible error

. Counsel argued that the court tainted juror number 1 by suggesting that defendant had done something inappr opriate, which caused the court to make an inquiry of the juror. In support of this position, counsel argued9 A- 2742

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that the trial court implicitly acknowledged its mi stake when it changed its questioning for the remaining jurors. The trial co urt denied that motion. Defendant alleged that his first trial counsel was ineffective for revealing his conversation with defendant to the court and fo r not represe nting his interests during the voir dire of the jurors. In addition, h e alleged that his first PCR counsel was ineffective for not raising these issue s in his first PCR petition. On March 3, 2022, the trial court issued a written opinion dismissing defendant's second PCR petition. The court found t hat defendant's second PCR petition was untimely because it satisfied none of the factors set forth in Rule
3:22 -12(b). The court found that the petition: (1) did not raise a newly recognized constitutional ri ght ; (2) was not based on evidence that could not have been discovered earlier through the exercise o f reasonable diligence ; and (3) was not filed within a year of the denial of de fendant's first PCR petition. 2
See R. 3:22 -12(2)(A) to (C). The court noted that relaxation of the time limit for filing a second PCR petition is prohibited by t he court rule. As a result of its conclusions with respect to the timeliness of t he petition, the court also

2 The trial court's opinion states that defendant's second p etition was filed more than three years after the denial of his first peti tion. The record establishes, however, that the second petition was filed on Marc h 2, 2021, two years and three months after the December 14, 2018 dismissal of the first petition.10 A- 2742

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concluded defendant had not demonstrated good cause for the appointment of counsel. A March 3, 2022 order memorializes the court's deci sion. This appeal follows. Defendant raises the following arguments.

POINT I THE SUPPORTING FACTS OUTLINED IN POINT I , AND POIN[T] II OF THIS SUBSEQUENT PETITION FOR POST CONVICTION RELIEF DEMONSTRATE HOW BOTH TRIAL COUNSEL AND FIRST (PCR) COUNSEL WERE INEFFECTIVE IN THEIR REPRESENTATION OF THIS APPELLANT; THEREBY DEPRIVING HIM OF HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL DURING HIS TRIAL, AND POST TRIAL JUDICIAL REVIEWS. POINT II IT WOULD BE A FUNDAMENTAL INJUSTICE NOT TO RELAX THE PROCEDURAL BAR WHERE APPELLANT'S FIRST PCR LAWYER AND HIS DIRECT APPEAL LAWYER FAILED TO ARGUE THE INEFFECTIVE COUNSEL CLAIMS ON [(SIC)] HIS TRIAL LAWYER FOR THE ISSUES HE ASSERTS IN HIS SUBSEQUENT PCR.
II. We review de novo the trial court's legal conclusio n that defendant's second PCR petition is barred by R. 3:22 -4 and R. 3:22

- 12( a)(2). State v. Harris , 181 N.J. 391, 419 (2004).11 A- 2742

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Rule 3:22 -4(b) provides, in relevant part: A second or subsequent petition for post-conviction relief shall be dismissed unless: (1) it is timely under R. 3:22-12(a)(2); and (2) it alleges on its face either: (A) that the petition relies on a new rule of constitutional law, made retroactive to defendant's petition by the United States Supreme Court or the Supreme Court of New Jersey, that was unavailable during the pendency of any prior proceedings; or (B) that the factual predicate for the relief sough t could not have been discovered earlier through the exercise of reasonable diligence, and the facts underlying the ground for relief, if proven and vie wed in light of the evidence as a whole, would raise a reasonable probability that the relief sought would be granted; or (C) that the petition alleges a prima facie case of ineffective assistance of counsel that represented the defendant on the first or subsequent application fo r post -conviction relief. Rule 3:22 -12(a)(2) provides that "no second or subsequent pe tition shall be filed more than one year after the latest of" th e following:

(A) the date on which the constitutional right asse rted was initially recognized by the United States Supre me 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 c ases on collateral review; or12 A- 2742

- 21 (B) the date on which the factual predicate for the relief sought was discovered, if that factual predi cate could not have been discovered earlier through the exercise of reasonable diligence; or (C) the date of the denial of the first or subseque nt application for post-conviction relief where ineffe ctive assistance of counsel that represented the defendan t on the first or subsequent application for post-convic tion relief is being alleged. "These time limitations shall not be relaxed, excep t as provided herein." R. 3:22 -12(b). Defendant does not allege he is entitled to relief based on a newly recognized constitutional right. His second petiti on, therefore, does not fall within subsection (A) of the rule. Nor does defend ant allege that his second petition is based on facts he recently discovered. His second petition, therefore, does not fall within subsection (B) of the rule. Defendant's second petition alleges he was denied the effective assistance of counsel with respect to his first petition. Sub section (C) of the rule requires that a second petition alleging such claims must be filed no more than a year after the date of the denial of the first petition. Defendant's first petition was denied on December 14, 2018 . He did not file his second petition until March 2, 2021 , more than two years later.13 A- 2742

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Defendant mistakenly argues that the one-year peri od for filing the claims
in the second PCR petition alleging ineffective assist ance of first PCR counsel began to run on January 22, 2021, when the Supreme Court denied his petition for certification of our decision affirming the dismi ssal of his first petition. The

one -year period, however, began on the day that his fi rst petition was denied by the trial court. Se e State v. Jackson, 454 N.J. Super. 284, 292 (App. Div. 2018) (beginning calculation of one-year period on the day that fi rst PCR petition was denied, even though the defendant filed an appeal w ith this court and subsequently filed a petition for certification wit h the Supreme Court). As a general rule, the court may not relax the tim e limit for filing a second PCR petition. Id. at 292

- 94 . Defendant's claim of fundamental injustice , therefore, does not provide refuge from the denial of his untimely second petition. Unlike Rule 3:22 -12(a)(1)(A), which applies to the filing deadline for a first PCR petition, Rule 3:22 -12(a)(2) does not allow relief from a mandatory time bar based on fundamental injustice. See Id. at 293- 94. In addition, the claims alleged by defendant in his second petition are not the equivalent of the "compelling" constitutional i ssues before the Court in State in the Interest of C.K., 233 N.J. 44, 58 (2018). T here, the Court made an exception to the general rule to consider a late-fi led second PCR petition that14 A- 2742

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challenged the constitutionality of Megan's Law lif etime registration and notification requirements on juvenile offenders. Defendant's second PCR petition raises ineffective assistance of counsel c laims specific to the allegations made in his first PCR petition. Defendant's claims are limited to the performance of his PCR counsel and whether he effec tively raised claims relating to the performance of defendant's trial co unsel. Defendant's second petition raises no compelling constitutional claim of widespread application that would warrant departure from the time limits establ ished in Rules 3:22 -4 and
3:22

- 12 (b). Finally, because defendant's untimely petition does not raise "a substantial issue of fact or law[,]" R. 3:22 -6(b), the trial court properly denied his application for appointment of counsel. Affirmed.