The opinion
NOT FOR PUBLICATION WITHOUT THE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-0004-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROCCO MALDONADO,
Defendant-Appellant.
_______________________
Submitted November 8, 2023 – Decided December 27, 2023
Before Judges Sumners and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 10-07-1246.
Rocco Maldonado, appellant pro se.
Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel J. Marzarella, Chief
Appellate Attorney, on the brief).
PER CURIAM
Defendant, convicted on multiple robbery and weapons charges, appeals
from the trial court's denial of his motion for a new trial. For the reasons that
follow, we affirm.
I.
After a trial in 2011, defendant was convicted of two counts of first-degree
robbery, N.J.S.A. 2C:15-1, second-degree burglary, N.J.S.A. 2C:18-2, and two
fourth-degree weapons charges for possession of a stun gun and an imitation
firearm. The trial court imposed an aggregate prison term of forty years, with
an eighty-five percent period of parole ineligibility, pursuant to the No Early
Release Act, N.J.S.A. 2C:43-7. On direct appeal, we affirmed the conviction
and sentence. State v. Maldonado, No. A-4047-11 (App. Div. Jan. 15, 2015)
(Maldonado I).
Defendant filed a petition for post-conviction relief (PCR) in 2015,
alleging he had accepted a plea offer which the State improperly withdrew. The
first PCR court denied the application without an evidentiary hearing, and we
affirmed on appeal. State v. Maldonado, No. A-2368-16 (App. Div. Mar. 22,
2018) (Maldonado II). After the federal district court denied defendant's writ of
habeas corpus making the same claim, defendant filed a second PCR petition.
We recount the next stage of the procedural history as set forth in State v.
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Maldonado, No. A-2175-19 (App. Div. May 19, 2021) (Maldonado III) (slip op.
at 3):
On July 19, 2019, defendant pro se filed his second
petition for PCR, this time alleging trial counsel was
ineffective in advising him of the essential elements of
first-degree robbery; he believed he could not be
convicted of first-degree robbery because "nothing was
taken from the home" during the home invasion.
Defendant claims, in reliance on this alleged improper
advice, [that] he chose to go to trial rather than accept
a lesser sentence through a plea. The PCR court issued
an order requiring defendant to show cause as to why
his second PCR petition was timely. After receiving
defendant's response, the PCR court denied defendant's
second petition in a December 2, 2019 order because
defendant failed to file his second petition within one
year of the denial of his first petition. See R. 3:22-4(b);
R. 3:22-12(a)(2).
We affirmed on appeal.
On May 4, 2022, defendant filed a motion for a new trial, alleging newly
discovered evidence warranted relief. Defendant contended that he recently
discovered that his trial counsel was the Asbury Park, Monmouth County
municipal prosecutor while he simultaneously represented defendant on his
Ocean County criminal charges. He also argues that trial counsel was
ineffective when he advised defendant he would not be convicted of first-degree
robbery, and he would at most be found guilty of theft.
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The motion court rejected defendant's arguments and made written
findings. It found no conflict of interest, "because [trial counsel's]
representation of the State at the municipal level in Monmouth County was not
directly adverse to [defendant's Ocean County matter]," and there was "no
indication . . . [of a] significant risk that the representation of the State at the
municipal level in another county materially limited [trial counsel's]
responsibilities to the defendant." The motion court concluded trial counsel had
no duty to obtain defendant's informed consent. The motion court also found
trial counsel's service as municipal prosecutor in a different county did not
constitute "newly discovered evidence." The court found trial counsel's position
as municipal prosecutor was a matter of public record and could have been
discovered by defendant's due diligence beforehand. The motion court rejected
defendant's argument that trial counsel was ineffective because he should have
known defendant was likely to be convicted on his robbery charges, finding the
arguments "conclusory."
Defendant appeals, arguing:
POINT ONE
The Trial Court Erred In Denying Defendant's Motion
For New Trial Based On Newly Discovered Evidence
Without An Evidentiary Hearing As There Is No
Evidence On Record To Establish That Defendant
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Waived His Right To Conflict Free Representation By
Defense Counsel Warranting Reversal Of Defendant's
Convictions [and] Sentence And Remand For New
Trial
POINT TWO
Defense Counsel's Failure To Render Effective
Assistance Resulted In Prejudice And Injury Toward
Petitioner Because There Is A Reasonable Probability
Defendant Would Have Accepted By The Trial Court
And Defendant Would Not Have Been Exposed To An
Extended Term Conviction
II.
"[A] motion for a new trial is addressed to the sound discretion of the trial
judge, and the exercise of that discretion will not be interfered with on appeal
unless a clear abuse [of discretion] has been shown." State v. Armour, 446 N.J.
295 (App. Div. 2016) (first alteration in original) (quoting State v. Russo, 333
N.J. Super. 119, 137 (App. Div. 2000)). "A trial court's ruling on a motion for
a new trial 'shall not be reversed unless it clearly appears that there was a
miscarriage of justice under the law.'" Id. at 305 (quoting R. 2:10-1).
Rule 3:20-1 states: "The trial judge on defendant's motion may grant the
defendant a new trial if required in the interest of justice." "[P]ursuant to Rule
3:20-1, the trial judge shall not set aside a jury verdict unless 'it clearly and
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convincingly appears that there was a manifest denial of justice under the law.'"
Armour, 446 N.J. Super. at 305-06.
The Supreme Court has stated:
[T]o qualify as newly discovered evidence entitling a
party to a new trial, the new evidence must be (1)
material to the issue and not merely cumulative or
impeaching or contradictory; (2) discovered since the
trial and not discoverable by reasonable diligence
beforehand; and (3) of the sort that would probably
change the jury's verdict if a new trial were granted.
[State v. Fortin, 464 N.J. Super. 193, 216 (App. Div.
2020) (quoting State v. Carter, 85 N.J. 300, 314
(1981)).]
"All three [prongs of the] test[] must be met before the evidence can be said to
justify a new trial." Ibid. (quoting Carter, 85 N.J. at 314). "The defendant has
the burden to establish each prong is met." Ibid. (quoting State v. Smith, 29 N.J.
561, 573 (1959)).
III.
Defendant's first point on appeal falls flat as the record contains sufficient
factual support for the motion court's findings. The court correctly determined
there was no conflict of interest. While that ended the substantive inquiry, the
court went on to note that trial counsel's status could have been discovered by
defendant's reasonable diligence before he pleaded guilty. The motion court
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properly exercised its discretion, and we see no need to disturb its order denying
a new trial.
We briefly comment on defendant's second point on appeal, alleging
ineffectiveness of counsel. Defendant's argument is framed as part of the new
trial motion appeal, and the court rejected the argument as improperly included
in the new trial motion. Nevertheless, we analyze the second point as defendant's
third motion for post-conviction relief.
Rule 3:22-4(b) places strict limitations on second and subsequent petitions
for PCR. It compels dismissal of a subsequent PCR petition unless the
defendant's claim is: (1) brought within the applicable time period; and (2) falls
within one of three grounds for relief. See R. 3:22-4(b).
Rule 3:22-4(b)(1) requires second and subsequent PCR petitions to be
timely filed under Rule 3:22-12(a)(2), which instructs that petitions cannot be
filed beyond one year after the latest of:
(A) the date on which the constitutional right asserted
was initially recognized by the United States Supreme
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 cases
on collateral review; or
(B) the date on which the factual predicate for the relief
sought was discovered, if that factual predicate could
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not have been discovered earlier through the exercise
of reasonable diligence; or
(C) the date of the denial of the first or subsequent
application for post-conviction relief where ineffective
assistance of counsel that represented the defendant on
the first or subsequent application for post-conviction
relief is being alleged.
The one-year limitation for second or subsequent petitions cannot be
relaxed. R. 3:22-12(b); see also R. 1:3-4(c) (prohibiting the court and parties
from enlarging the time to file a petition for PCR under Rule 3:22-12).
Regarding the allowable grounds for relief, Rule 3:22-4(b)(1) requires that a
second or subsequent petition for PCR allege 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
post-conviction relief.
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When we apply these rules, we simple conclude that defendant's third PCR
petition is time-barred. Defendant fails to satisfy the first requirement of Rule
3:22-4(b)(1)—the time limitation set forth in Rule 3:22-12(a)(2). Defendant did
not claim a new constitutional right, so his petition cannot be considered timely
under Rule 3:22-12(a)(2)(A). Next, defendant's petition is untimely under Rule
3:22-12(a)(2)(B) as the factual predicate of his claims, that he received improper
advice about not taking the plea offer, was known to him more than a year before
he filed this third petition. Finally, defendant's petition is not timely under Rule
3:22-12(a)(2)(C) because his petition was beyond the one-year time
requirement.
Affirmed.
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