Opinion
DOCKET NO. A-1169-12T1
07-24-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALI RILEY, a/k/a ALI MYRICKS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Ian C. Kennedy, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Maven.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-03-0830.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the briefs).
John J. Hoffman, Acting Attorney General, attorney for respondent (Ian C. Kennedy, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Ali Riley appeals from a June 29, 2012 Law Division order, denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
On June 16, 2000, defendant pled guilty to second-degree robbery, N.J.S.A. 2C:15-1(b). On July 28, 2000, the court sentenced defendant to a seven-year term of imprisonment with an eighty-five percent period of parole ineligibility and a three-year term of parole supervision upon his release, and imposed appropriate fees and assessments. Defendant did not file a direct appeal.
On September 12, 2007, a federal jury found defendant guilty of a gun offense. The district court sentenced defendant in June 2008 to 92 months imprisonment.
Over ten years after the Superior Court sentence, defendant filed his first PCR petition, which he supplemented with a certification on January 1, 2012, following the appointment of counsel. Therein, defendant claimed his trial counsel was ineffective for failing to (1) "discuss procedure with [him];" (2) present him with a defense plan; (3) advise him that his conviction could be used to enhance a sentence for a subsequent conviction; and (4) advise him of his right to appeal. Defendant also argued the petition was timely since he only became aware that the 2000 conviction would be used to enhance his federal sentence in June 2008.
After oral argument, the judge did not address the procedural time bar issue, however, rejected defendant's substantive arguments. The judge relied on State v. Wilkerson, 321 N.J. Super. 219 (App. Div.), certif. denied, 162 N.J. 128 (1999), stating:
I am not persuaded by the argument of [defendant] with respect to his failure to know that any guilty plea could [be] used in any future matters. Criminal histories are always considered in any future sentencing. I find the Wilkerson case to be appropriate, that there is no requirement that a defense attorney must advise a client or a defendant that if they commit future criminal offenses[,] there may be adverse consequences by way of enhancement of . . . any penalties or otherwise.Thereafter, the judge entered an order denying the petition.
This appeal followed, with defendant raising the following issue:
[DEFENDANT] IS ENTITLED TO A HEARING ON HIS CLAIM THAT HIS TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO INFORM [HIM] ABOUT THE PENAL CONSEQUENCES OF HIS PLEA.In a supplemental brief, defendant raises one additional issue:
THIS COURT SHOULD REJECT THE STATE'S ARGUMENT THAT [DEFENDANT'S] PETITION IS TIME-BARRED.
Defendant argues he is entitled to an evidentiary hearing because he has established a prima facie claim of ineffective assistance of counsel, namely that but for counsel's actions, he would not have pled guilty. We reject defendant's contentions and conclude the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.
Although the PCR judge did not address the issue in her ruling, defendant and assigned counsel both addressed the timeliness issue in their PCR briefs. Rule 3:22-12 provides that, with the exception of a petition to correct an illegal sentence, "[n]o . . . petition shall be 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 defendant's excusable neglect."
Defendant claims only that he was not aware that the sentence could be used to enhance future sentences until it occurred in 2008. We reject that notion and conclude defendant failed to offer exceptional circumstances that would justify relief from the Rule's bar pursuant to Rule 1:1-2. State v. Mitchell, 126 N.J. 565, 579-80 (1992); see also State v. Afanador, 151 N.J. 41, 52 (1997) (discussing the standard to relax the Rule 3:22-12 time bar). Furthermore, ignorance of the law and of the time limits applicable to the filing of PCR petitions does not establish excusable neglect. State v. Cummings, 321 N.J. Super. 154, 166-67 (App. Div.) (difficulty reading and writing and defendant's ignorance of law did not excuse late filing), certif. denied, 162 N.J. 199 (1999).
Next, defendant argues counsel's failure to inform him about the collateral consequences of his plea evidences ineffective assistance of counsel entitling him to review of his claim. In order for defendant to obtain relief based on ineffective assistance of counsel grounds, he is obliged to show not only the particular manner in which his counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard in New Jersey).
Here, defendant has failed to demonstrate that counsel's performance was deficient. In Wilkerson, supra, 321 N.J. Super. at 227, we held that an attorney who does not advise a client "of possible or even potential enhancement consequences of future aberrant conduct is not ineffective . . . . There is no constitutional requirement for such advice. It involves only a collateral issue." Wilkerson makes clear defendant's counsel cannot be deemed ineffective under these circumstances. Thus, defendant's claim that his attorney should have advised him in 2000 that his guilty plea could potentially cause him to receive an enhanced sentence if he committed future offenses plainly lacks merit.
To prevail, defendant must "do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). In this instance, defendant has not satisfied the first prong of the Strickland/Fritz test. See State v. Castagna, 187 N.J. 293, 314 (2006) (internal quotation marks omitted) (ineffective assistance requires a determination that counsel's conduct "fell outside the wide range of professionally competent assistance considered in light of all of the circumstances of the case.").
Defendant further argues the court erred in denying him an evidentiary hearing. The determination of whether to hold an evidentiary hearing on an ineffective assistance of counsel claim is left to the sound discretion of the PCR judge. State v. Preciose, 129 N.J. 451, 462 (1992). "An evidentiary hearing . . . is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-10 (2014).
From our review of the record, we discern no mistaken exercise of discretion by the PCR court in deciding defendant's petition without an evidentiary hearing. We are satisfied that defendant has failed to establish a prima facie case of ineffective assistance of counsel, as he has not shown that his trial attorney's performance was deficient. See Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
Affirmed.
I hereby certify at the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION