RECORD IMPOUNDED 

 SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-1091-22 

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v.

LUIS A. RODRIGUEZ, 

a/k/a FREDDIE, 

LUIS RODRIGUEZ, 

LUIS RODREQUEZ, 

LOUIS RODRIGUEZ, 

FREDDY RODRIGUEZ, 

FREDDIE RODRIGUEZ, 

FREDDY RODRIQUEZ, 

FREDED RODRIQUEZ, 

LUIS A. RODRIQUEZ, 

FREDDIE RORIGUEZ, and 

FREDDIE CHEO, 

________________________

Submitted January 18, 2024 – Decided February 2, 2024

Before Judges Firko and Vanek. 

On appeal from the Superior Court of New Jersey, Law 

Division, Monmouth County, Indictment No. 11-01-

0124.

NOT FOR PUBLICATION WITHOUT THE 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-1091-22

Joseph E. Krakora, Public Defender, attorney for 

appellant (John Joseph Bannan, Designated Counsel, 

on the brief). 

Raymond S. Santiago, Monmouth County Prosecutor, 

attorney for respondent (Monica Lucinda Do Outeiro,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM 

 Defendant Luis Rodriguez appeals from a September 16, 2022 order 

denying his subsequent petition for post-conviction relief (PCR) without an 

evidentiary hearing. Defendant contends his trial, appellate, and first PCR 

counsel rendered ineffective assistance. Judge Michael A. Guadagno 

thoroughly considered defendant's contentions and issued a comprehensive 

written decision, with which we substantially agree. We affirm. 

I.

 In January 2011, a Monmouth County grand jury charged defendant with 

third-degree burglary, third-degree attempted aggravated criminal sexual 

contact, third-degree attempted aggravated sexual assault, second-degree sexual 

assault, third-degree endangering the welfare of a child, third-degree terroristic 

threats, third-degree aggravated assault, and third-degree aggravated assault on 

a police officer regarding two incidents that occurred on August 14, 2009. 
3 A-1091-22

 The first incident took place at 2:00 a.m. Defendant entered his neighbor's 

apartment in Long Branch and stood near her bed while masturbating. When 

the neighbor, who was also an acquaintance, questioned defendant about what 

he was doing, he confessed that he loved her. The neighbor escorted defendant 

out of her apartment but was unable to immediately call the police because her 

cell phone was out of minutes, and she could not leave her son alone in the 

apartment. The next day, the neighbor went to the Long Branch Police 

Department, gave a statement to Detective Juan Vasquez, and identified 

defendant from a photo lineup. 

 The second incident occurred after defendant left the neighbor's apartment 

and went to another neighbor's apartment. At 3:30 a.m., twelve-year-old L.O.1

woke up and found defendant inside the bedroom she shared with her ten-yearold brother T.O. Defendant was laying in L.O.'s bed—the bottom of a bunk 

bed—and touched her inner thigh. Defendant put his hand over L.O.'s mouth to 

keep her quiet and told her several times that if she did not remain quiet, he 

would kill her. T.O. awoke and illuminated the bedroom using a gaming device, 

1

 We use initials to protect the confidentiality and identity of the minor victims. 

R. 1:38-3(c)(9). 
4 A-1091-22

which enabled him to see defendant was on his sister's bed and touching her. 

Defendant also told T.O. to remain quiet or he would kill him. 

 L.O. yelled and her father, F.O., came into the children's bedroom. A fight 

ensued between F.O. and defendant resulting in defendant fracturing F.O.'s nose. 

F.O. also sprained his ankle during the struggle. L.O. called 9-1-1. Despite his 

injuries, F.O. was able to detain defendant until the police arrived. The police 

arrested defendant and retrieved his cell phone and a black hat from the 

children's bedroom. 

L.O. and T.O. gave statements to Detective Shawn Murphy of the 

Monmouth County Prosecutor's Office, and F.O. provided a statement to 

Detective Vasquez four days later because he was hospitalized for the injuries 

he sustained. A SANE (Sexual Assault Nurse Examiner) examination was not 

performed on L.O. because the incident occurred during her menstrual cycle, 

and defendant's assault did not involve any type of penetration. 

 Defendant provided a statement to the police. He admitted to entering 

F.O.'s residence but initially denied entering the children's bedroom. However, 

defendant later claimed he entered their bedroom after seeing three black males 

enter the apartment. According to defendant, he assumed the men were there to 

collect money from F.O. Defendant claimed F.O. started the altercation with
5 A-1091-22

him because F.O. thought defendant was one of the intruders and F.O. planted 

his cell phone in the children's bedroom. 

 Following pre-trial motion practice and the plea-cutoff date, the matter 

was marked ready for trial. Defendant petitioned the trial court to enter a guilty 

plea after the plea-cutoff date, which was granted. Defendant agreed to plead 

guilty to third-degree burglary and second-degree sexual assault in exchange for 

an aggregate six-year term of imprisonment subject to the No Early Release Act, 

N.J.S.A. 2C:43-7.2, followed by three years of parole. At the plea allocution 

hearing, plea counsel represented to the trial court that he had "gone over . . . all 

of the discovery in this matter" with defendant and they had "spent numerous 

hours, even today, going through everything to determine what is best for him." 

Plea counsel stated to the trial court that defendant "wishes to enter a plea at this 

time to the deal that was put on . . . the record by the State." 

 During his plea colloquy with the trial court, defendant agreed with his 

plea counsel's representations and stated he was "satisfied with the legal advice

[he] received from" his plea counsel. Defendant testified he entered two Long 

Branch residences on August 14, 2009, at approximately 2:00 a.m., without 

permission, in support of the factual basis supporting his guilty plea with "the 

purpose to commit a crime therein." He also admitted touching L.O.'s upper 
6 A-1091-22

thigh. Defendant testified that his plea was freely and voluntarily made, and he 

acknowledged that absent a plea agreement, he faced up to fifteen years in 

prison. The trial court noted plea counsel had "done a lot of work in the matter" 

since entering the case "over the last number of months." 

 At sentencing, defendant indicated he "was looking to withdraw his guilty 

plea." However, during a colloquy with the sentencing court, defendant stated 

he did not want to vacate his guilty plea and chose to proceed to sentencing. 

Prior to sentencing, the assistant prosecutor discussed the victim impact 

statement provided by L.O.'s family, which detailed the "fear" the family 

continued to have as a result of defendant's conduct. The prosecutor also 

reminded the court about the testimony from the first victim given during a 

pretrial motion hearing, in which she stated she no longer felt safe in her home, 

she installed four deadbolts on her front and back doors, does not leave the 

windows open in the summertime, and is afraid when sleeping. 

In addition, the children said they don't like to go outside and are afraid 

to walk to school alone. L.O. indicated she feels embarrassed because 

individuals at her school are aware of what took place and ask her how she's 

doing.
7 A-1091-22

The sentencing court imposed the sentence contemplated in the plea 

agreement, subject to Megan's Law, N.J.S.A. 2C:7-1 to -23, Parole Supervision 

for Life, N.J.S.A. 2C:43-6.4, a no contact order, a psychiatric and drug 

evaluation upon release, and the requisite fines. Defendant acknowledged he 

could be confined to the Adult Diagnostic and Treatment Center in Avenel. 

Defendant appealed his sentence, which was heard on our Sentencing Oral 

Argument calendar pursuant to Rule 2:9-11. On February 11, 2014, we affirmed 

defendant's sentence. State v. Rodriguez, No. A-1470-13 (App. Div. Feb. 11, 

2014). 

 On February 12, 2016, defendant filed his first pro se PCR petition. PCR 

counsel was assigned, and an amended petition and a supporting brief was filed 

raising six claims of ineffective assistance by plea and appellate counsel: (1) 

trial counsel was ineffective for failing to allow defendant to withdraw his guilty 

plea before sentencing; (2) trial counsel failed to advise defendant of the 

consequences of his guilty plea, specifically that he could be civilly committed 

after serving his prison sentence; (3) trial counsel was ineffective for not having 

a Spanish interpreter present during counsel's communications with defendant; 

(4) appellate counsel was ineffective for failing to bring the claims set forth in 

the PCR; (5) there was an insufficient factual basis for defendant's guilty plea; 
8 A-1091-22

and (6) the sentence was illegal because it double counted defendant's prison 

sentence and his civil commitment. 

 On February 23, 2018, the prior PCR court heard oral argument on 

defendant's first PCR petition. On March 2, 2018, the PCR court denied the 

petition without an evidentiary hearing, noting the petition was procedurally 

barred but the PCR court nonetheless addressed and rejected defendant's 

substantive claims. Defendant appealed the denial of his first PCR petition. We 

affirmed and concluded defendant failed to present a prima facie case of 

ineffective assistance of counsel. State v. Rodriguez, No. A-4333-17 (App. Div. 

Oct. 11, 2019). 

In our decision, we determined that "[d]efense counsel and the plea judge 

both carefully went through the plea and supplemental forms with defendant." 

Ibid. In addition, we noted a Spanish interpreter was used during the plea 

proceedings and that defendant "advised he had read the forms, counsel had gone 

over them with him, and [defendant] told the judge he did not have any questions 

specifically as to the condition of civil commitment." Id., slip op. at 6. 

 Defendant filed a second PCR and requested appointment of counsel while 

his first PCR was pending. On July 24, 2018, the PCR court denied defendant's 
9 A-1091-22

application for assignment of counsel and dismissed the second petition pursuant 

to Rule 3:22-4(b)(2),2 because good cause had not been shown. 

2

 The Rule provides: 

(b) Second or Subsequent Petition for [PCR]. A second 

or subsequent petition for [PCR] shall be dismissed

unless: 

. . . 

(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 sought could 

not have been discovered earlier through the exercise 

of reasonable diligence, and the facts underlying the 

ground for relief, if proven and viewed 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 for 

[PCR]. 

[Rule 3:22-4(b)(2).] 
10 A-1091-22

 Defendant also pursued federal litigation while the first PCR petition was 

pending. The United States District Court for New Jersey denied the petition 

for a writ of habeas corpus and subsequent motion for reconsideration.3

 Defendant filed a third pro se PCR petition, which was dismissed on 

January 4, 2021, on the basis the claims he asserted had already been 

adjudicated.4 On February 25, 2021, defendant then filed his subsequent PCR 

petition, which is the subject of this appeal. In his petition, defendant claimed 

his plea counsel was ineffective because plea counsel: (1) had failed to inform 

him that there was no "victim statement" or a medical report that indicated 

trauma to the victim (L.O.); (2) plea counsel did not interview the victim; the 

victim's brother and father failed to give statements to the police; and (3) plea 

counsel pressured defendant into accepting the guilty plea. 

 PCR counsel was assigned and filed a brief, which raised the following 

additional points:

POINT I 

DEFENDANT WAS DENIED THE EFFECTIVE 

ASSISTANCE OF COUNSEL 

3

 Defendant's second writ for habeas corpus was also dismissed. 

4

 During the pendency, defendant filed six PCR petitions, which were all 

dismissed. 
11 A-1091-22

CONSTITUTIONALLY GUARANTEED TO HIM BY 

THE U.S. AND STATE CONSTITUTIONS. 

 A. TRIAL COUNSEL'S INEFFECTIVE 

REPRESENTATION DURING THE PRETRIAL 

PROCEEDINGS IMPACTED THE PLEA PROCESS 

CAUSING DEFENDANT SUBSTANTIAL 

PREJUDICE. 

B. TRIAL COUNSEL WAS INEFFECTIVE IN 

FAILING TO PERSUADE THE COURT TO APPLY 

MITIGATING FACTORS IN SENTENCING 

DEFENDANT. 

C. APPELLATE COUNSEL WAS INEFFECTIVE BY 

FAILING TO RAISE VARIOUS ISSUES ON DIRECT 

APPEAL. 

POINT II 

THE SENTENCE IMPOSED BY THE TRIAL COURT 

WAS EXCESSIVE AND/OR 

UNCONSTITUTIONAL. 

POINT III 

PETITIONER'S CLAIMS ARE NOT BARRED 

PROCEDURALLY FROM BEING RAISED IN THIS 

PETITION FOR [PCR]. 

POINT IV 

PETITIONER HAS ESTABLISHED A PRIMA FACIE 

CASE SUFFICIENT TO REQUIRE AN 

EVIDENTIARY HEARING. 
12 A-1091-22

POINT V 

PCR INCORPORATES BY REFERENCE ALL 

ISSUES RAISED BY PETITIONER IN HIS 

PETITION. 

POINT VI 

THE ERRORS OF COUNSEL IN THIS MATTER 

WERE SO BAD THAT ACTUAL PREJUDICE NEED 

NOT BE SHOWN. 

POINT VII 

THE EFFECT OF THE CUMULATIVE ERRORS IN 

THIS MATTER RENDERED THE RESULT IN 

VIOLATION OF PETITIONER'S SIXTH 

AMENDMENT RIGHT TO EFFECTIVE COUNSEL. 

 Following oral argument, Judge Guadagno issued a written decision 

denying defendant's subsequent PCR petition without an evidentiary hearing. 

The judge found all claims of ineffective assistance of first PCR counsel were 

procedurally barred under Rule 3:22-4(b)(1) because the claims were untimely 

under Rule 3:22-12(a)(2)(A). In addition, the judge found all other claims failed 

to meet the requirements of Rule 3:22-4(b)(2)(C), as they alleged only the 

ineffective assistance of plea and appellate counsel, and not PCR counsel. 

 Judge Guadagno noted that by his "count, this represents the ninth time 

defendant has sought review of his conviction by state or federal courts." The 

judge explained that even if he were to consider defendant's claims of ineffective 
13 A-1091-22

assistance, "most of them have been previously decided; the others lack merit." 

The judge determined defendant's claim that "errors of counsel (presumably plea 

counsel) were so bad that actual prejudice need not be shown" was not supported 

by the record "or in our jurisprudence." The judge denied defendant's 

subsequent petition as both time-barred and lacking in substantive merit because 

defendant failed to establish a prima facie case of ineffective assistance of trial, 

appellate, or PCR counsel. A memorializing order was entered. This appeal 

followed. 

 Defendant raises the following arguments for our consideration: 

POINT I 

PETITIONER'S CLAIMS ARE NOT 

PROCEDURALLY BARRED FROM BEING RAISED 

IN THIS PETITION FOR [PCR]. 

(A) Defendant's Second PCR Petition Is Timely 

Pursuant To R[ule] 3:22-4(b) And R[ule] 3:22-12(a)(2). 

(B) Petitioner's Claims Are Not Barred By R[ule] 3:22-

5.

(C) Petitioner's Claims Are Not Barred By R[ule]3:22-

12.

POINT II 

BECAUSE [DEFENDANT] RECEIVED 

INEFFECTIVE ASSISTANCE OF FIRST PCR 
14 A-1091-22

COUNSEL, THE PCR COURT ERRED IN DENYING 

[DEFENDANT'S] SECOND PETITION FOR PCR. 

(A) Trial And PCR Counsel's Ineffective 

Representation During The Pretrial Proceedings 

Impacted The Plea Process Causing Defendant 

Substantial Prejudice. 

(B) First PCR Counsel Was Ineffective For Failing To 

Raise The Issue That Trial Counsel Was Ineffective In 

Failing To Present To The Court Mitigating Factors In 

Sentencing Or Argue For A Lesser Sentence. 

(C) First PCR Counsel Was Ineffective For Failing To 

Raise The Issue That Appellate Counsel Was 

Ineffective For Failing To Argue That The Trial Court 

Did Not Adequately Weigh Sentencing Factors. 

POINT III 

IN THE ALTERNATIVE, BECAUSE THERE ARE 

GENUINE ISSUES OF MATERIAL FACT IN 

DISPUTE, THE PCR COURT ERRED IN DENYING 

AN EVIDENTIARY HEARING. 

(A) Legal Standards Governing [PCR] Evidentiary 

Hearings. 

 

(B) In The Alternative, [Defendant] Is Entitled To An 

Evidentiary Hearing. 

II. 

We review the legal conclusions of a PCR court de novo. State v. Harris, 

181 N.J. 391, 419 (2004) (citing Manalapan Realty, L.P. v. Twp. Comm. of 

Manalapan, 140 N.J. 366, 378 (1995)). The de novo standard also applies to 
15 A-1091-22

mixed questions of law and fact. Id. at 420. Where an evidentiary hearing has 

not been held, we "conduct a de novo review of both the factual findings and 

legal conclusions of the PCR court." Id. at 421. We apply that standard here. 

To establish a prima facie case of ineffective assistance of counsel, 

defendant must satisfy the two-prong test articulated in Strickland v. 

Washington, 466 U.S. 668, 687 (1984), which our Supreme Court adopted in 

State v. Fritz, 105 N.J. 42, 58 (1987). "First, the defendant must show . . . . 

counsel made errors so serious that counsel was not functioning as the 'counsel' 

guaranteed . . . by the Sixth Amendment." Fritz, 105 N.J. at 52 (quoting 

Strickland, 466 U.S. at 687). Defendant must then show counsel's deficient 

performance prejudiced the defense. Ibid. To show prejudice, defendant must 

establish by "a reasonable probability" that the deficient performance 

"materially contributed to defendant's conviction . . . ." Id. at 58. 

PCR is New Jersey's analogue to the federal writ of habeas corpus. State 

v. Afanador, 151 N.J. 41, 49 (1997) (citing State v. Preciose, 129 N.J. 451, 459 

(1992)). It is the vehicle through which a defendant may, after conviction and 

sentencing, challenge a judgment of conviction by raising issues that could not 

have been raised on direct appeal and, therefore, ensures that a defendant was 
16 A-1091-22

not unjustly convicted. State v. McQuaid, 147 N.J. 464, 482 (1997) (citation 

omitted). 

Judge Guadagno determined defendant's petition is time-barred under 

Rule 3:22-12(b), which provides the time limitations for filing second or 

subsequent PCR petitions. Defendant argues his subsequent PCR petition was 

timely because it was filed within one year of our decision affirming denial of 

his first PCR petition. Defendant contends the issues raised in the PCR petition 

under review "are of a constitutional nature," and he has satisfied the exceptions 

under subsections (a), (b), and (c) of Rule 3:22-4. Defendant also asserts his 

ineffective assistance of counsel claim against his first PCR counsel and 

appellate counsel is allowed under Rule 3:22-4(b)(2)(C). We are unpersuaded. 

The rules governing PCR petitions are set forth in Rule 3:22. Second or 

subsequent PCR petitions must comply with the requirements of Rule 3:22-4(b) 

and Rule 3:22-12(a)(2). To avoid dismissal of a second—or subsequent—PCR 

petition, as stated, a defendant must present evidence to satisfy one of three 

enumerated exceptions: a new rule of law, newly discovered evidence, or 

ineffective assistance of prior PCR counsel. R. 3:22-4(b)(2). Defendant simply 

makes bald assertions and has not presented any facts in an affidavit or 

certification to support his subsequent PCR petition. Even when a defendant's 
17 A-1091-22

PCR contentions fit within these exceptions, a second or subsequent PCR 

petition must be timely filed. R. 3:22-4(b)(1). 

Rule 3:22-12 prescribes the time limitations for PCR. As applicable in 

this case, Rule 3:22-12(a)(2)(C) provides "no second or subsequent petition 

shall be filed more than one year after . . . the date of the denial of the first . . . 

application for [PCR]" based on ineffective assistance of counsel. Defendant's 

subsequent PCR petition was filed more than one year after the denial of his first 

PCR application. Defendant was required to file the PCR under review within 

one year of March 2, 2018, the date his first PCR was denied, but he did not file 

until March 2021, more than three years later. 

Unlike Rule 3:22-4(a), Rule 3:22-4(b) contains no "fundamental injustice" 

exception for second or subsequent PCR petitions. Similarly, there is no 

fundamental or manifest injustice exception under Rule 3:22-5, which 

establishes prior rulings on appeal are conclusive and precludes reassertion of 

litigated issues in a PCR petition. 

Defendant contends the issues raised in the petition under review are of a 

constitutional nature, and the allegations of ineffective assistance are "clearly 

proper" under Rule 3:22-4(a) (b) and (c). We reject defendant's argument 

because he does not articulate any constitutional issues or cite any case law to 
18 A-1091-22

support his position. Moreover, we reject defendant's assertion that the two 

"second or subsequent" PCRs filed within one year of March 2018 satisfies Rule 

3:22-4 because the prior PCR court dismissed both petitions for not alleging 

grounds upon which a second or subsequent petition can be based under Rule 

3:22-4(b)(2), and for not demonstrating good cause under Rule 3:22-4(b)(2). 

Judge Guadagno correctly held the dismissal of defendant's non-compliant PCR 

filings could not be used as a basis to render the March 2021 petition timely. 

We also reject defendant's arguments because we are satisfied he has not 

presented that rare case requiring relief from the procedural limitations imposed 

on second or subsequent PCR petitions. Moreover, Judge Guadagno correctly 

determined that notwithstanding the untimely filing of defendant's PCR under 

review, the allegations set forth therein did not satisfy the second requirement 

of Rule 3:22-4(b)(2) and were independently subject to dismissal. 

Defendant failed to establish his subsequent PCR petition was timely and 

also failed to establish that the performance of his plea, appellate, and PCR 

counsel was substandard, or but for any of the alleged errors, the result would 

have been different. See Strickland, 466 U.S. at 687-88. As a result, he was not 

entitled to an evidentiary hearing. Preciose, 129 N.J. at 463; R. 3:22-10(b). 

Affirmed.