Opinion
DOCKET NO. A-0708-13T1
04-15-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. EUGENE I. KELLY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer L. Gottschalk, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-04-0953. Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer L. Gottschalk, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief). PER CURIAM
The original source for the adage "be careful what you wish for" may be untraceable, but it may well date back more than 200 years, to Johann Wolfgang von Goethe (1749-1832). Reyes v. AT&T Corp., 801 F. Supp. 2d 1350, 1361 n.7 (S.D. Fla. 2011) (quoting James Joyce, Ulysses, Episode 9 (Scylla and Charybdis)). This appeal surely illustrates the wisdom of that aphorism.
In 2007, a grand jury sitting in Atlantic County returned an indictment charging defendant Eugene I. Kelly with third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); fourth-degree unlawful possession of hollow-point bullets, N.J.S.A. 2C:39-3(f); and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7.
After his motion to suppress was denied, Kelly entered into a plea agreement whereby he pled guilty to one count of third-degree unlawful possession of a handgun in satisfaction of all charges. In return, the State agreed to recommend a sentence not to exceed five years and to dismiss counts two and three of the indictment. Kelly also agreed to waive his right to appeal pursuant to Rule 3:9-3(d).
Prior to his sentencing, Kelly moved pro se to withdraw his guilty plea. Judge Bernard E. DeLury, Jr., denied Kelly's motion and informed him that, as part of the plea bargain, he waived his right to appeal, and if he decided to appeal, "the State can withdraw from this guilty plea pursuant to the rule and then reinstate the dismissed charges against you and proceed along the prosecution's path to trial." Kelly indicated that he understood. Judge DeLury then imposed the agreed-upon five-year term in accordance with the plea agreement.
Kelly then filed a pro se notice of appeal, and the State moved to annul the plea agreement. Judge DeLury granted the State's motion, vacated Kelly's conviction, and restored all charges. Kelly then withdrew his appeal and moved for reconsideration of his motion to suppress, which was denied.
The matter proceeded to trial and Kelly was convicted of second-degree possession of a weapon by a convicted person. Judge DeLury granted the State's motion to impose an extended term and sentenced Kelly to a sixteen-year term with an eight-year minimum term.
The State elected to try defendant on this single charge and dismissed the other two counts.
Kelly appealed and we affirmed. State v. Kelly, No. A-1096-09 (App. Div. Jan. 31, 2012). The Supreme Court denied certification. 210 N.J. 480 (2012).
Kelly then filed a pro se petition for post-conviction relief (PCR). After the appointment of counsel and briefs were submitted, Judge DeLury heard oral argument. On April 3, 2013, Judge DeLury filed a sixteen-page decision denying Kelly's petition without a hearing. He determined that Kelly's arguments were procedurally barred under Rule 3:22-5, because they were "identical to those raised on appeal." The judge further found that, even if Rule 3:22-5 were not applied, Kelly had not established a prima facie case for ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and State v. Fritz, 105 N.J. 42 (1987).
On appeal, Kelly raises three points:
POINT ONE
THE TRIAL COURT ERRED BY RULING THAT DEFENDANT'S PCR CLAIMS WERE PROCEDURALLY BARRED.
POINT TWO
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO APPRISE [DEFENDANT] OF THE WAIVER OF HIS RIGHT TO APPEAL AS A CONDITION OF HIS GUILTY PLEA AND OF THE CONSEQUENCES OF PURSUING AN APPEAL ONCE HE HAD BEEN SENTENCED PURSUANT TO THE TERMS OF THE PLEA AGREEMENT.
POINT THREE
THE PCR COURT ERRED BY DENYING DEFENDANT AN EVIDENTIARY HEARING ON HIS CLAIMS.
We find insufficient merit in these arguments to warrant discussion in a written opinion, Rule 2:11-3(e)(2), and affirm on the basis of Judge DeLury's thorough and comprehensive April 3, 2013 decision. We add only the following brief comments.
A PCR petitioner is barred from presenting a claim that had been previously adjudicated. R. 3:22-5. In his 2011 appeal, Kelly raised the following points:
[(1)] The trial court erred in denying [defendant's] motion to suppress evidence where the basis for the Terry stop was that [defendant] was swaying as he spoke on a cellular phone at 2:30 a.m. in front of a multi-dwelling building where he happened to live, and when [defendant] told Officer Gorman that he was just using his phone, his words sounded slurred[;]
. . . .
[(2)] [He] was unlawfully stopped and seized by police and the evidence found on defendant was the fruit of the unlawful stop and seizure[;]
. . . .
[(3)] The trial court did not obtain a valid waiver of appeal from [defendant] (Not Raised Below)[;]
. . . .
[(4)] The sixteen-year extended-term sentence, with eight years parole ineligibility, following four prior probation sentences, was excessive, was contrary to the concept of progressive punishment inherent in our sentencing scheme and penalized [defendant] for defending against the charges[; and]
. . . .
[(5)] Defendant received ineffective assistance of counsel, and not the counsel guaranteed under the United States' Constitution's 6th Amendment.
[State v. Kelly, supra, slip op. at 3-13.]
Kelly now claims that his arguments are not identical to those that he previously raised, because he did not raise the "sufficiency of the assistance of his counsel." In his direct appeal, Kelly argued that his trial counsel was ineffective because she failed to move for a judgment of acquittal. Id. at 14. We found that, based on the evidence adduced at trial, "a motion for a judgment of acquittal would have certainly been denied." Id. at 15.
Kelly's PCR arguments alleging ineffective assistance of counsel center on his plea counsel's alleged failure to inform him of the ramifications of his guilty plea, specifically the consequences if he were to later appeal his conviction. Kelly's direct appeal also addressed this contention, albeit as a claim of trial court error in "not obtain[ing] a valid waiver of appeal" from him. Id. at 10-11. Even though Kelly's current claim that he was not fully informed of the consequences of appealing his conviction is now framed as an ineffective-assistance-of-counsel claim, we considered and addressed the substance of this claim on direct appeal.
At a minimum, Kelly's current claims are the substantial equivalent of, if not identical to, those that he raised on direct appeal and are procedurally barred. See State v. McQuaid, 147 N.J. 464, 484 (1997) (applying Rule 3:22-5 and noting that courts may preclude consideration of arguments presented in PCR proceedings if the issues raised are either identical or substantially equivalent to points previously adjudicated on the merits); see also State v. Preciose, 129 N.J. 451, 476 (1992) ("[A] prior adjudication on the merits ordinarily constitutes a procedural bar to the reassertion of the same ground as a basis for post-conviction review.").
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION