Opinion
DOCKET NO. A-3266-13T3
02-08-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PAUL CHISOLM, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Milton Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Kennedy and Gilson. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 96-09-1114. Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Milton Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals the January 14, 2014 order of the Law Division denying his second application for post-conviction relief (PCR) from his 2001 conviction, following a jury trial, of reckless manslaughter of Peter Sizemore, as a lesser-included offense of murder; aggravated manslaughter of Cathy Brown, as a lesser-included offense of murder; two counts of felony murder; and kidnapping. Before sentencing, the trial judge granted defendant's motion to vacate the jury's verdict on the charge of possession of a weapon for an unlawful purpose, and he thereafter sentenced defendant to an aggregate term of life imprisonment subject to thirty years of parole ineligibility.
Defendant appealed and we affirmed his conviction and sentence. See State v. Chisolm, No. A-4637-00 (App. Div. Dec. 8, 2003). The Supreme Court denied defendant's petition for certification. See State v. Chisolm, 180 N.J. 358 (2004). Defendant then filed his first PCR application, which the Law Division denied. Thereafter, defendant appealed the order denying his PCR application and argued:
POINT I - THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A) TRIAL COUNSEL FAILED TO CROSS EXAMINE KIESHA HOWELL IN AN EFFECTIVE MANNER.
B) TRIAL COUNSEL FAILED TO REQUEST A CHARGE ON AN AFFIRMATIVE DEFENSE TO FELONY-MURDER.
C) TRIAL COUNSEL FAILED TO CONSULT AND PRESENT THE TESTIMONY OF EXPERTS.
D) TRIAL COUNSEL FAILED TO MOVE FOR A JUDGMENT OF ACQUITTAL OR FOR A NEW TRIAL BASED ON THE VERDICT BEING AGAINST THE WEIGHT OF THE EVIDENCE.
E) TRIAL COUNSEL FAILED TO ADEQUATELY INVESTIGATE AND PREPARE THE CASE.
F) TRIAL COUNSEL FAILED TO CONSULT WITH DEFENDANT REGARDING A WADE HEARING.
We carefully reviewed the arguments and, finding none to be persuasive, we affirmed. State v. Chisolm, Docket No. A-4512-06 (April 7, 2009 App. Div.). The Supreme Court denied certification. State v. Chisolm, 199 N.J. 542 (2009).
POINT II - THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
POINT III - THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT IV - THE TRIAL COURT ERRED IN NOT CHARGING THE JURY ON A DEFENSE SUA SPONTE AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
POINT V - THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
POINT VI - THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.
In 2011, defendant filed a second PCR application that was denied by Judge William A. Daniel. Defendant now appeals that decision and presents the following arguments for our consideration:
POINT I - PETITIONER'S CLAIMS WERE NOT PROCEDURALLY BARRED FROM BEING RAISED IN HIS SECOND PETITION FOR POST CONVICTION RELIEF.
A) DEFENDANT'S CLAIMS WERE NOT BARRED BY R. 3:22-4(b).
B) DEFENDANT'S CLAIMS ARE NOT BARRED BY R. 3:22-5.
C) DEFENDANT'S CLAIMS WERE NOT BARRED BY R. 3:22-12.
POINT II - POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED WHERE DEFENDANT ESTABLISHED THAT TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO INADMISSIBLE N.J.R.E. 404(b) EVIDENCE.
POINT III - POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED WHERE DEFENDANT ESTABLISHED THAT TRIAL COUNSEL FAILED TO REQUEST A LIMITING INSTRUCTION AFTER IMPROPER HEARSAY EVIDENCE WAS PRESENTED TO THE JURY.
POINT IV - POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED WHERE DEFENDANT ESTABLISHED THAT TRIAL COUNSEL FAILED TO OBJECT TO INTRODUCTION OF MUGSHOTS THAT WERE USED TO IDENTIFY DEFENDANT.
POINT V - BOTH APPELLATE AND PCR COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL IN FAILING TO RAISE THE ABOVE ISSUES DURING ALL PRIOR PROCEEDINGS.
POINT VI - DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING.We have carefully considered these arguments in light of the law and the record, and we affirm essentially for the reasons thoughtfully expressed by Judge Daniel in his written opinion. We add only the following.
In brief, defendant and his co-defendant, Beth Smallwood (collectively, defendants), were charged with the kidnapping and murders of two fellow drug dealers, Peter Sizemore and Cathy Brown. Because the victims allegedly had stolen drugs from defendants, they forced the victims into a room in a boarding house where defendants had been selling drugs. Witnesses heard thumping sounds and muffled squeals from Brown. While Smallwood struck Brown, defendant beat Sizemore unconscious. When Brown became loud and hysterical, defendant threw her into a closet. Then, Smallwood gave defendant a knife with which he repeatedly stabbed Sizemore. Later, defendants moved the bodies of Sizemore and Brown to the basement of the boarding house, and then removed them to a park where they burned them.
Smallwood was tried separately. --------
Judge Daniel held that the arguments advanced by defendant in his second petition for PCR — which had been filed on or about February 3, 2011, approximately ten years after the entry of the judgment of conviction in February 2001 — were time barred under Rule 3:22-4(b). He explained that defendant had a full trial record at least as early as 2004; that record had been identified by defendant as the basis for his present arguments; and that defendant has not alleged sufficient facts showing excusable neglect or that the factual basis for the claims could not have been raised earlier.
Defendant responds by asserting that it was the failure of his appellate counsel and his first PCR counsel to raise these issues, and that, as a consequence, he should not be precluded from raising the issues now.
A defendant seeking relief from the time bar under Rule 3:22-12(a)(1) must show excusable neglect and that a fundamental injustice will result. Here, we are convinced that defendant failed to satisfy his burden of establishing excusable neglect. Thus, it is unnecessary to decide if enforcement of the time bar will result in a fundamental injustice. See State v. Brewster, 429 N.J. Super. 387, 399-401 (App. Div. 2013) (finding a seven-year delay beyond the five-year deadline and a three-year delay lapse after defendant knew the consequences of his plea agreement "undercut a finding of excusable neglect and fundamental injustice.").
To relax the five-year time limitation for filing a PCR petition, the New Jersey Supreme Court has required a showing of "compelling, extenuating circumstances," see State v. Milne, 178 N.J. 486, 492 (2004), or alternatively, "exceptional circumstances," see State v. Goodwin, 173 N.J. 583, 594 (2002); State v. Murray, 162 N.J. 240, 246 (2000); State v. Mitchell, 126 N.J. 565, 580 (1992). A procedural rule otherwise barring post-conviction relief may be overlooked to avoid a fundamental injustice where the deficient representation of counsel affected "a determination of guilt or otherwise wrought a miscarriage of justice." State v. Nash, 212 N.J. 518, 546 (2013) (quoting Mitchell, supra, 126 N.J. at 587 (internal quotations omitted)). In determining whether a defendant has demonstrated excusable neglect, we "consider the extent and cause of the delay, the prejudice to the State, and the importance of petitioner's claim in determining whether there has been an 'injustice' sufficient to relax the time limits." Milne, supra, 178 N.J. at 492 (quoting State v. Afanador, 151 N.J. 41, 52 (1997)). To succeed on a claim of fundamental injustice, the petitioner must show that "an error or violation played a role in the determination of guilt." Nash, supra, 212 N.J. at 547 (internal quotation marks and citation omitted).
Applying these standards to defendant's claim of excusable neglect, we affirm substantially for the reasons set forth by Judge Daniel. Rule 3:22-4(b) states:
Second or Subsequent Petition for Post-Conviction Relief. 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 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.
In addition, Rule 3:22-12(a)(2) states:
Second or Subsequent Petition for Post-Conviction Relief. Notwithstanding any other provision in this rule, no second or subsequent petition shall be filed more than 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 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.
Defendant argues that Judge Daniel erred in finding that his petition was time barred under Rule 3:22-12. Rule 3:22-12(a)(1) provides that "no petition shall be filed . . . more than 5 years after the date of entry pursuant to Rule 3:21-5 of the judgment of conviction being challenged[.]" Here, defendant's judgment of conviction was entered on February 16, 2001. We affirmed the conviction by an opinion dated December 8, 2003. His first petition for PCR was denied by the trial court on March 20, 2007. We affirmed the PCR court ruling on April 7, 2009. However, he did not file his second PCR petition until February 3, 2011, just two weeks shy of ten years after the judgment of conviction was entered.
The PCR court ruled that defendant's petition was barred under Rule 3:22-4(b) because it did not satisfy the first prong of that rule, namely a timely filing under Rule 3:22-12(a)(2). The court held the factual predicate for the relief defendant sought was clearly discoverable within the time constraints of Rule 3:22-12(a)(2). The PCR court also found that defendant failed to provide any substantive facts that would support the establishment of excusable neglect or that an injustice occurred sufficient to warrant the relaxation of the time bar of Rule 3:22-12(a)(2).
Nonetheless, being cautious and considerate, Judge Daniel reviewed the substantive claims alleged by defendant in his petition and found them to be without merit. He held the "character evidence" at issue was properly admitted to show motive under N.J.R.E. 404(b) and, as such, trial counsel was not deficient for failing to object to it. Additionally, the court ruled defendant failed to show how counsel's failure to object prejudiced the defense.
Judge Daniel also ruled counsel was not deficient for failing to request a limiting instruction regarding the proper use of "other crimes" evidence. He explained the trial court issued a proper limiting instruction and, thus, counsel was not ineffective for failing to request an additional instruction. He added that defendant failed to provide any factual submissions in support of his claim that he was prejudiced.
Additionally, the PCR court held defendant's claim that counsel was ineffective for failing to object to certain hearsay statements and for failing to request a limiting instruction regarding others was without merit. The PCR court found counsel objected to the first hearsay statement of LoBracio and that the trial court appropriately instructed the jury.
The PCR court also found trial counsel was not deficient for failing to object to testimony about the photo array used to identify defendant. The court held the instant situation differed from State v. Cribb, 281 N.J. Super. 156 (App. Div. 1995), and that the witnesses never referred to the photos in issue as "mug shots" or "photos taken by the police." The PCR court ruled defendant's claim of ineffective assistance of counsel was meritless as the admission of photos was appropriate. Moreover, the court found defendant failed to demonstrate prejudice and, thus, failed to meet the second prong of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Furthermore, as we have suggested earlier in this opinion, defendant failed to provide any reason for his untimely filing, let alone excusable neglect. Rather, defendant ignores this requirement, and instead provides a vague argument stating that his trial, appellate, and previous PCR counsel rendered ineffective assistance. The only justification defendant appears to proffer is his lack of knowledge of the law. However, ignorance of the law does not constitute excusable neglect. See State v. Murray, 162 N.J. 240, 246 (2000). The time limits set forth in Rule 3:22-12 are clear; because neither defendant's certification nor counsel's brief sets forth a valid reason for the delay in filing, nor alleges any basis for excusable neglect, his petition was properly dismissed on procedural grounds.
Moreover, even if defendant had shown excusable neglect, he failed to show "that there is a reasonable probability that if [his] factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice." R. 3:22-12(a)(1).
As we stated earlier, we reject defendant's claims on the merits substantially for the reasons given by Judge Daniel in his August 27, 2014 opinion. "When a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Porter, 216 N.J. 343, 353 (2013) (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)). Defendant failed to do so.
"A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief[.]" R. 3:22-10(b). "[T]o establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." Porter, supra, 216 N.J. at 355 (quoting Cummings, supra, 321 N.J. Super. at 170). Rather, "the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Defendant failed to make that showing.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION