Summary
holding that a mistake of law does not amount to excusable neglect and a petition filed beyond five years is barred
Summary of this case from State v. FowlerOpinion
Submitted September 24, 1998.
Decided October 30, 1998.
Appeal from Superior Court of New Jersey, Law Division, Mercer County, Kleiner, J.A.D.
Before Judges BROCHIN and KLEINER.
Ivelisse Torres, Public Defender, attorney for appellant ( Kevin G. Byrnes, Designated Counsel, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Peter Verniero, Attorney General, attorney for respondent ( Catherine A. Foddai, Deputy Attorney General, of counsel and on the brief).
The opinion of the court was delivered by
Defendant, Neal Murray, appeals from the denial without an evidentiary hearing of his petition for post conviction relief. Under the factual circumstances set forth in this particular petition, we conclude defendant was improvidently denied the opportunity to demonstrate that he was denied effective assistance of counsel when he was sentenced to a custodial term of imprisonment. We reverse and remand for an evidentiary hearing.
Tried to a jury, defendant was convicted of the following crimes: robbery, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:151 (counts one, two and three); aggravated sexual assault, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:14-2a (count four); possession of two handguns with the purpose to use them unlawfully, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-4a (count five); and possession of a knife for an unlawful purpose, contrary to N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-4d (count six).
At sentencing on March 4, 1988, the trial judge merged defendants conviction on count five into defendants convictions on counts one, two, and three. Defendants conviction on count six was merged into the convictions on counts one and four. His conviction on count three was merged into the convictions on counts one and two. The judge then sentenced defendant to concurrent twenty year terms of imprisonment with ten years of parole ineligibility on counts one, two, and four. The judge also ordered each sentence to be served concurrently with a separate sentence imposed on an unrelated indictment.
Defendants conviction and the sentence imposed were affirmed in an unreported decision, A-3725-87T7, on December 28, 1988. In that decision we offered the following summary:
The convictions arose from the armed robbery of a Pizza Hut restaurant in Hamilton Township by two armed men dressed in ski masks. Defendants guilt was overwhelmingly proved by the testimony of his confederate, amply confirmed by defendants own statements and real evidence in the form of weapons and lost recovered from defendant, a ski mask and gloves found nearby when he was arrested and a revolver and ski mask were recovered from his confederate [John Sheil].
Certification was denied on February 9, 1989. Thereafter, on August 14, 1990, defendants petition for a writ of habeas corpus in the Federal District Court was denied; the order entered that same date provided, in part, "there is no probable cause for appeal."
Murray v. Rafferty, Civil No. 89-2650(CSF).
Defendant filed a petition for post-conviction relief on December 10, 1995. Essentially defendant contended that the trial judge committed reversible error in the jury charge on the issue of accomplice liability and that he was denied effective assistance of counsel in that: (1) his trial attorney never communicated to him a favorable plea offer received prior to trial and (2) his trial counsel had a conflict of interest with counsel for co-defendant John Sheil.
Recognizing the five-year time-bar to post-conviction relief proceedings, R. 3:22-12, defendant attempted to demonstrate excusable neglect by arguing: (1) his lack of legal knowledge; (2) his having been led "astray" by his original counsel who had advised him as to the futility of continuing litigation; and (3) his having been led "astray" by the inclusion in the Federal Court order denying his petition for a writ of habeas corpus of a determination that "there is no probable cause to appeal."
R. 3:22-12 on "Limitations" provides:
A petition to correct an illegal sentence may filed at any time. No other petition shall he filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendants excusable neglect.
The motion judge concluded that defendants petition for postconviction relief was time-barred, having been filed seven years and nine months after his conviction. R. 3:22-12. The judge also determined that defendant had not shown excusable neglect for the delay and specifically rejected defendants claim that his lack of legal education should excuse his delay or that his trial counsels advice or the wording of the Federal Court order justified or excused defendants delay. Additionally, the judge noted that defendants claims of trial error were bared by R. 3:22-4, as those errors could have and should have been raised on direct appeal. The judge dismissed defendants petition without an evidentiary hearing.
The motion judge did not specifically discuss defendants claim that his trial counsel provided ineffective assistance in failing to communicate to defendant a favorable plea offer received from the State. We presume that the motion judge concluded this claim was time-barred. R. 3:22-12. The motion judge did discuss plaintiffs claim that he was denied effective assistance of counsel arising from a conflict of interest between his counsel and counsel for his co-defendant. Petitioners specific claim and the motion judges decision is discussed infra.
On appeal, defendant raises four points of error: POINT I
In a pro se supplemental brief and appendix defendant amplified Points Two, Three, and Four of the merits brief filed on his behalf.
THE PROCEDURAL BAR TO THE DEFENDANTS MOTION FOR POSTCONVICTION RELIEF SHOULD HAVE BEEN RELAXED.POINT II
THE DEFENDANTS TRIAL ATTORNEY HAD A CONFLICT OF INTEREST.
POINT III
THE DEFENDANTS RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PART OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PCR COURTS REFUSAL TO HOLD A POST-CONVICTION RELIEF EVIDENTIARY HEARING TO ADJUDICATE THE DEFENDANTS CLAIM THAT HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.POINT IV
THE DEFENDANTS RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PART OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT ERRED IN ITS LEGAL INSTRUCTIONS TO THE JURY: THE INSTRUCTION ON ACCOMPLICE LIABILITY WAS INCOMPLETE AND ERRONEOUS.
We agree with the motion judges conclusion: that any judicial error at the time of trial should have and could have been raised by defendant in his direct appeal, R. 3:22-4, and with her general conclusion that petitioners petition was time barred, R. 3:22-12, and her conclusion that defendants reasons offered to justify his untimely petition were without merit. However, we conclude that defendants contention that he was deprived of effective assistance of counsel due to his counsels conflict of interest warrants an evidentiary hearing because the conflict of interest renders the sentence illegal. See State v. Preciose, 129 N.J. 451, 609 A.2d 1280 (1992).
Defendants claim alleges a "substantial denial in the conviction proceeding of defendants rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey," R. 3:22-2, and as such, if established, it taints defendants entire trial and renders the sentence thereafter imposed illegal within the purview of R. 3:22-12, which provides, in part: "[a] petition to correct an illegal sentence may be filed at any time." See State v. Levine, 253 N.J. Super. 149, 155-56, 601 A.2d 249 (App.Div. 1992); State v. Paladino, 203 N.J. Super. 537, 549-50, 497 A.2d 562 (App.Div. 1985).
We specifically part ways with the motion judges analysis of defendants claim of ineffective assistance of counsel arising from an alleged conflict of interest between defendants counsel "and counsel for Sheil, his co-defendant.
In defendants post-conviction petition, he alleged that his assigned trial counsel, Jules Kollar, Esq., had a conflict of interest with his co-defendants counsel, Nicholas Stroumtsos, Jr., Esq. The full extent of the alleged conflict of interest was not detailed in defendants initial petition or in the certification he filed in support of his petition. It is evident from the record on appeal that defendants petition was amplified by additional pleadings filed with the. motion judge by defendants assigned counsel; however, the amplification has not been included in the record on appeal. We are, however, able to glean the exact nature of defendants contentions from the motion judges decision denying defendants petition. More precisely, defendant asserted that as of the date of his indictment, he was represented by Frances Hartman, Esq., and Sheil was represented by Stroumtsos.
Respondent erroneously spells counsels name as "Stromtsos" in the brief.
Prior to defendants trial, Sheil entered into a plea agreement with the State. In exchange for Sheil's plea of guilty to one robbery count of the indictment and his agreement to testify for the State at defendants trial, the State agreed to recommend that Sheil be sentenced to a custodial term of fifteen years with a seven and a half year period of parole ineligibility. Shell was sentenced after defendants trial.
Defendant asserted that as of the date of his indictment he was represented by Frances Hartman, Esq., and Shell was represented by Stroumtsos. Prior to defendants trial, Hartman, defendants counsel, withdrew. Defendant then retained Kollar, who represented him at trial and sentencing. In defendants petition for post-conviction relief, he asserted that Kollar shared an office and a telephone with Stroumtsos and that their relationship violated the precepts enunciated in State v. Bellueci, 81 N.J. 531, 410 A.2d 666 (1980), and the Rules of Professional Conduct, particularly, RPC 1.7.
RPC 1.7 Conflict of Interest: General Rule, provides:
(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client unless:
(1) the lawyer reasonably believes that representation will not adversely affect the relationship with the other client; and
(2) each client consents after a full disclosure of the circumstances and consultation with the client, except that a public entity cannot consent to any such representation.
(b) A lawyer shall not represent a client if she representation of that client may be materially limited by the lawyers responsibilities to another client or to a third person, or by the lawyers own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after a full disclosure of the circumstances and consultation with the client, except that a public entity cannot consent to any such representation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.
(c) This rule shall not alter the effect of case law or ethics opinions to the effect that:
(1) in certain cases or categories of cases involving conflicts or apparent conflicts, consent to continued representation is immaterial, and
(2) in certain cases or situations creating an appearance of impropriety rather than an actual conflict, multipie representation is not permissible, that is, in those situations in which an ordinary knowledgeable citizen acquainted with the facts would conclude that the multiple representation poses substantial risk of disservice to either the public interest or the interest of one of the clients.
The motion judge rejected defendants contention, stating:
Petitioner makes much of the fact but does not support it with anything other than photocopied pages of a New Jersey Lawyers Diary which indicates that in 1988 that the attorneys shared the same address. It does indicate that they shared one office space, or perhaps a secretary or firm name. There is no indication that they were in fact anything more than partners in space, but not in the law firm. The address may have been for a large office complex or an office space shared by a number of attorneys. That is not an uncommon practice for solo practitioners.
Rather, it merely indicates the attorneys practiced out of the same building and for three years may have shared a "phone number. The fact that the attorneys phone number is the same for the years 83 and 90 is not the type of proof necessary for this court to find proof of a partnership with the association between the two attorneys which would in fact amount to a conflict of interest. Simply stated, petitioner has failed to provide credible evidence of the type necessary for this court to find that the attorneys were partners or associates.
After recognizing that defendants contentions were premised on State v. Bellucci, 81 N.J. 531, 410 A.2d 666, the motion judge concluded:
In the case at bar, petitioner has not demonstrated prima fade entitlement to an evidentiary hearing with regard to the main issue, whether counsel was ineffective due to the alleged conflict of interest. Petitioner has not given any evidence in support of his claim that a conflict of interest should ha presumed since he failed to demonstrate that Kollar and Stroumtsos were partners or were associated in any manner beyond their office sharing arrangement.
The motion judge also concluded that petitioner could not rely solely upon the alleged conflict but had the additional duty to demonstrate that his claim met the two-prong test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted in New Jersey in State v. Fritz, 105 N.J. 42, 519 A.2d 336 (1987).
We conclude that the motion judge misread Bellucci which established "an absolute bar to multiple representation unless defendants are fully advised of the potential problems involved," 81 N.J. at 545, 410 A.2d 666, and erred in dismissing defendants petition without affording him an evidentiary hearing. In Bellucci, the Court reaffirmed its decision in State v. Land, 73 N.J. 24, 372 A.2d 297 (1977), that: "[O]nce a potential conflict exists, prejudice will be presumed in the absence of waiver, even if associated attorneys are involved instead of the same attorney." Betlueci, 81 N.J. at 543, 410 A.2d 666 (citing Land, 73 N.J. at 35, 372 A.2d 297). The Court also noted, "Such a presumption is necessary to protect adequately the "fundamental and absolute right to effective assistance of counsel." Bellucci, 81 N.J. at 543, 410 A.2d 666 (citation omitted). It also stressed, "The harmful effects of a conflict of interest . . . will not ordinarily be identifiable on the record. Requiring a showing of prejudice would place an impossible burden on the accused and force the reviewing courts to engage in "unguided speculation.'" Ibid. (citations omitted). It seems clear that once a defendant demonstrates his attorneys conflict of interest, no obligation is imposed on defendant to meet the two-prong test enunciated in Strickland or in Fritz.
The precepts enunciated in Bellucci were revisited in State v. Norman, 151 N.J. 5, 697 A.2d 511 (1997). In Norman, the Supreme Court premised its decision with this introduction:
The central issue in these two cases is the constitutional right to the assistance of counsel and the extent to which that right requires representation by counsel who is conflict-free. Each defendant alleges that the relationship between their attorneys created a prejudicial conflict of interest that necessitates reversal of their murder convictions. The two attorneys involved in representing defendants shared office space, eventually became partners, and were paid their fees by one of the defendants. In addition, one defendants attorney appeared at the other defendants arraignment, and representation of one defendant on "appeal continued after the actual formation of the partnership
[ Id. at 10, 697 A.2d 511.]
The Court, in reviewing its decision in Bellucci particularly noted:
Thus, whether the joint representation had occurred through a single attorney or by associated attorneys, "once a potential conflict exists, prejudice will be presumed in the absence of waiver." That per se rule was needed, we determined, because "[t]he harm in dual representation is caused by the restraints placed on attorneys advocacy, and independent judgment . . . . [and because] [t]he harmful effects of a conflict . . . will not ordinarily he identifiable on the record."
[ Id. at 24, 697 A.2d 511] (citations omitted)
Our opinion is also buttressed by the rationale expressed in United States v. Stalks, No. 94-195, 1994 WL 606060 (D.N.J. Nov. 1, 1994). The court discussed New Jersey Ethics Opinions construing New Jersey Court Rule 1:15, where the Committee defined "office associate" as including two attorneys who maintain separate offices but share a common conference room (New Jersey Supreme Court Advisory Committee on Professional Ethics. Opinion No. 74), and including the instance where a solo practitioner shared office space with a two-person partnership, paid rent to the partnership, and had use of the law library and the copy machine (New Jersey Supreme Court Advisory Committee on Professional Ethics, Opinion No. 185).
Here, petitioner provided the motion judge with photocopies of pages of the New Jersey Lawyers Diary and Manual which listed Kollar's and Stroumtsos' addresses. The addresses were the same. The telephone number for each attorney was also the same.
Although it is not specifically clear under the facts here presented, the sharing of an office address and a common telephone number, that there was, in fact, a conflict within the purview of Bellucci or Norman, it is a fair inference that both Kollar and Stroumtsos utilized, if not employed, at least one individual who was responsible to answer telephone calls directed to each attorney. As noted in n. 7, supra, R. 1:15, sharing a common conference room or sharing a common law library and copy machine are sufficient to create a conflict between sole practitioners who maintain separate offices at a common address.
The record indicates Kollar represented defendant at trial and the testimony leading to defendants conviction was offered by Sheil. Sheil negotiated a favorable plea agreement in exchange for his testimony at defendants trial but had not yet been sentenced pursuant to his plea agreement. Stroumtsos, who then represented Shell, ostensibly shared an office with Kollar. The potential conflict between Kollar and Stromtsos was evident from the record as presented. Kollar's duty to attack the States case against his client conflicted with Stroumtsos duty to protect Shells favorable plea negotiation.
As noted in Bellucci, "The trial court is equally obligated to protect defendants rights to effective assistance of counsel. When multiple representation is involved, the situation must be explored on the record both to ensure the defendant is aware of the potential hazards and to secure a proper waiver." 81 N.J. at 545, 410 A.2d 666. Here, in response to defendants motion, the State did not assert that the motion judge adhered to the Bellueci mandate.
On defendants petition for post-conviction relief it was incumbent upon the motion judge to recognize the apparent conflict and to afford defendant an evidentiary hearing to further elicit facts demonstrative of the conflict. See State v. Preciose, 129 N.J. 451, 609 A.2d 1280 (1992). As noted in Preciose, "[A] defendants claim of ineffective assistance of trial . . . counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorneys testimony may be required." Id. at 462, 609 A.2d 1280. Our decision shall not be construed as concluding that in this instance there was, in fact, a conflict between defendants counsel and counsel for his co-defendant. We leave resolution of that question to the motion judge. We merely conclude that the judge misconstrued Bellucci and failed to consider Norman, and that the issues raised by defendant were sufficient to require an evidentiary hearing. State v. Preciose, 129 N.J. at 462, 609 A.2d 1280.
Since a remand to the motion judge is required, we conclude that the motion judge shall fully consider the merits of defendants initial additional claim that he was denied effective assistance of counsel when his trial counsel failed to communicate a favorable plea offer to defendant prior to commencement of defendants trial. In considering defendants contention, the motion judge shall specifically determine whether the alleged failure of defendants counsel, if proven, taints defendants subsequent trial and renders the sentence thereafter imposed "illegal" within the purview of R. 3:22-12 so as to exempt that claim from the five-year limitation encompassed by that rule.
Because this issue was not specifically briefed either defendant or the State, we decline to consider the issue in this appeal.
Reversed and remanded for further proceedings.