Opinion
DOCKET NO. A-0805-12T2
05-14-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEITH STEWART, a/k/a KEITH TERRELL STEWART, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, 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NOT FOR PUBLICATION WITHOUT THE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 Waugh and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 95-05-1725 and 95-06-2357.
Joseph E. Krakora, Public Defender, attorney for appellant (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Keith Stewart appeals from the denial of his petition for post-conviction relief (PCR) filed fifteen years after entry of his convictions. Because we agree that the petition was time-barred and no evidentiary hearing was required, we affirm.
On February 6, 1995, defendant was arrested and subsequently indicted in Essex County, along with Joseph Bennett, for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1), second-degree possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5b(2), third-degree possession of cocaine with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7, and second-degree conspiracy to possess cocaine with the intent to distribute, N.J.S.A. 2C:5-2. (Indictment No. 95-05-1725).
While on bail for those charges, defendant was again arrested for selling drugs on May 6. Defendant was indicted the following month, along with Frederick Smith, for third-degree possession of CDS, N.J.S.A. 2C:35-10a(1), third-degree possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5b(3), second-degree possession of cocaine with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7, and third-degree conspiracy to possess cocaine with the intent to distribute, N.J.S.A. 2C:5-2. Defendant, and not Smith, was also charged in the same indictment with fourth-degree aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1b(5)(a), and fourth-degree resisting arrest, N.J.S.A. 2C:29-2. (Indictment No. 95-06-2357).
Pursuant to a negotiated agreement, defendant pled guilty to conspiracy and possession of cocaine with intent to distribute within 1000 feet of school property on Indictment No. 95-05-1725, in exchange for the State's recommendation of five years imprisonment with twenty months of parole ineligibility. In the plea colloquy, defendant stated that he was arrested on South 8th Street in Newark within 1000 feet of Martin Luther King School with over a half ounce of cocaine, which he intended to distribute and share with his friends. He acknowledged that he and Bennett were selling the drugs together. Defendant also acknowledged signing the plea form and the supplemental plea form for drug offenses and that he understood that "under this plea bargain [he] could be sentenced up to five years in prison and . . . could be required to serve up to twenty months without parole."
On Indictment No. 95-06-2357, defendant agreed to plead guilty to conspiracy, possession of cocaine with intent to distribute within 1000 feet of school property, and resisting arrest, and to provide truthful testimony against Smith, in exchange for the State's agreement to waive its right to seek an extended term and recommendation of five years imprisonment with twenty months of parole ineligibility to run concurrent to the sentence on Indictment No. 95-05-1725. In the plea colloquy of December 4, 1995, defendant acknowledged selling drugs with Smith within 1000 feet of Martin Luther King School and pushing the sheriff's officer who attempted to arrest him.
Defendant was sentenced in accordance with his plea agreements. He did not appeal either conviction. He served both prison terms and successfully completed his parole supervision.
In 2009, defendant was convicted by a jury in the federal district court of conspiring to distribute, and to possess with intent to distribute, one kilogram or more of heroin and five kilograms or more of cocaine, in violation of 21 U.S.C.A. §§ 841(a),(b)(1)(A), and 846, and with possessing with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C.A. § 841(a) and (b)(1)(B). He was sentenced as a "career offender" pursuant to U.S.S.G. § 4A1.3, to two concurrent terms of 360 months of imprisonment, ten years of supervised release, and fined $30,000. The Third Circuit affirmed his conviction and sentence in 2010. United States v. Stewart, 378 F. App'x 201 (3d Cir. 2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1467, 179 L. Ed. 2d 311 (2011).
In 2011, fifteen years after his state court convictions, defendant filed a first petition for PCR claiming with respect to Indictment No. 95-05-1725 that his counsel advised him that if he pled guilty "to the offense mentioned in the indictment, the [count] charging possession with[in] 1,000 [feet] of a school would be dismissed and the possession count would be downgraded to a lesser included offense of 'simple possession[,'] and that he would receive a sentence not to exceed twelve months to be served at the Essex County Jail, and that after completion of said sentence . . . the conviction would appear on his record as a misdemeanor and not a felony." Defendant further contended that he advised his plea counsel that he had only accepted a ride in a cab offered by Bennett and was not in possession of the drugs Bennett and another man, Walter Simmons, had in the cab. Defendant contended that the officers "placed [the bag] on him" after the officers failed to catch Simmons "who the officers . . . actually saw exit the cab with it and ordered to halt." He maintained that he told his counsel that Bennett and Simmons both would be willing to sign affidavits to that effect. Defendant also contended that he informed his plea counsel that he had been racially profiled by the officers. Defendant maintained that his plea counsel never advised him that his state convictions could later be used as an enhancement factor for sentencing purposes and, had he been so advised, he would have insisted on going to trial. Finally, defendant claimed that despite his request, counsel failed to file an appeal on his behalf.
As to Indictment No. 95-06-2357, defendant contended that he is entitled to withdraw his plea on the basis of newly discovered evidence, that is, his recent receipt of an affidavit by Calvin Green. In the affidavit, Green contends that on May 6, 1995, he was approached by two Newark detectives in the vicinity of South 8th Street who attempted to arrest him for selling drugs. Green avers that before he could be arrested, he "struck the officer in the face and ran." Green claims to have learned "[a]bout two months later . . . from some friends that Keith Stewart had gotten arrest[ed] and charged with the drugs the detective took from me as well as [the] assault on the detective." Green claims that although he was bothered "tremendously" by this incident for many years, he had decided to come forward now as part of his drug and alcohol rehabilitation and religious faith to "clear my debts and [conscience]."
The judge denied defendant's petition on the basis that it was time-barred, and he failed to establish ineffective assistance under the test formulated by the United States Supreme Court in Strickland v. Washington, 4 66 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
On appeal, defendant contends that the five-year time bar should be relaxed because the delay was owing to excusable neglect and enforcement of the bar would result in fundamental injustice; the judge should have conducted an evidentiary hearing; and the matter should be remanded for a ruling on his motion to withdraw his guilty plea to Indictment No. 95-06-2357 on the basis of newly discovered evidence.
Defendant also contends that his PCR counsel was ineffective for failing to file a supplemental certification as to the claims included in his petition. Although the judge mentioned defendant's failure to provide "affidavits," she was clearly not referring to a supplemental certification by defendant. As the failure to provide a supplemental certification played no part in the judge's evaluation of defendant's PCR petition, the argument is plainly without merit and we do not address it. See R. 2:11-3(e)(2).
We reject those arguments. Under Rule 3:22-12(a)(1), a first petition for PCR must be filed no more than five years after entry of the judgment of conviction "unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice." As the Supreme Court explained in State v. Mitchell:
There are good reasons for such a Rule. As time passes after conviction, the difficulties associated with a fair and accurate reassessment of the critical events multiply. Achieving "justice" years after the fact may be more an illusory temptation than a plausibly attainable goal when memories have dimmed, witnesses have died or disappeared, and evidence is lost or unattainable. . . . Moreover, the Rule serves to respect the need for achieving finality of judgments and to allay the uncertainty associated with an unlimited possibility of relitigation. The Rule therefore strongly encourages those believing they have grounds for post-conviction relief to bring their claims swiftly, and discourages them from sitting on their rights until it is too late for a court to render justice.
[State v. Mitchell, 126 N.J. 565, 575-76 (1992).]
Defendant contends that the time bar should be relaxed because he had no reason to file a PCR petition until his state convictions were used to enhance his sentence for his federal crimes, relying on State v. Maldon, 422 N.J. Super. 475, 482 (App. Div. 2011). Maldon, however, is inapposite because it was Maldon's plea that exposed him to the collateral consequence of involuntary civil commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, not the commission of crimes he had yet to commit as in defendant's case. Defendant's predicament is controlled by State v. Wilkerson, 321 N.J. Super. 219, 223 (App. Div.), certif. denied, 162 N.J. 128 (1999), in which we held that
[a]side from the fact that . . . individuals should be aware as a matter of common sense that a continuing course of antisocial or criminal conduct may lead to increased penalties, [there is] no constitutional requirement that a defense attorney must advise a . . . defendant that if he . . . commits future criminal offenses that there may be adverse consequences by way of enhancement of the penalty.That these convictions allowed defendant to be sentenced as a "career offender" following his subsequent conviction for federal crimes is thus not grounds for relaxing the five-year bar of Rule 3:22-12(a)(1).
Accordingly, defendant's PCR petition with respect to Indictment No. 95-05-1725 is clearly time-barred. Further, we agree with the trial judge that defendant's claim that his trial counsel misinformed him as to the terms of the plea are obviously belied by the record of the plea colloquy. Defendant's claims that Bennett and Simmons would exonerate him are nothing more than bald assertions. As the judge noted, defendant did not provide an affidavit from those individuals to support his claims. See State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div.) (holding that when a petitioner claims inadequate investigation by trial counsel, he must assert the facts an investigation would have revealed, supported by affidavits or certifications), certif. denied, 162 N.J. 199 (1999). His claims that he was the victim of racial profiling and that trial counsel failed to file a requested appeal suffer the same defect.
As to Indictment No. 95-06-2357, defendant alternatively contends that his newly discovered evidence in the form of Green's affidavit makes his PCR petition timely and requires that he be allowed to withdraw his plea to charges included in that indictment. We disagree.
Under Rule 3:21-1, a guilty plea may not be withdrawn after sentencing except "to correct a manifest injustice."
[T]rial judges are to consider and balance four factors in evaluating motions to withdraw a guilty plea: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.Defendant's claim - that he should be permitted to withdraw his plea on the basis of Green's affidavit - is relevant to the second Slater factor, "the nature and strength of defendant's reasons for withdrawal." Id. at 157-58. Because this was a post-sentence motion, defendant was required to substantiate the claim with "strong, compelling reasons," id. at 160, which Green's affidavit does not provide.
[State v. Slater, 198 N.J. 145, 157-58 (2009).]
First, as the State notes, Green has provided no identifying information other than his name. He does not give his address, a telephone number, or any means of contacting him or otherwise verifying his statements. Although he avers that defendant was arrested and charged with possession of "the drugs the detective took from me as well as assault on the detective," he does not do so on the basis of his own personal knowledge. He did not witness the events. He instead contends that he "never knew what happened" after he ran from two Newark detectives trying to arrest him for selling drugs in the area of "South 8th Street and 11th Ave[nue]" on May 6, 1995.
Green provides no details about the drugs, his encounter with "the detectives," or whether he even knew defendant fifteen years ago. The only basis Green asserts for believing that defendant was arrested with Green's drugs is what he was told by some unidentified "friends" two months later. Viewing the affidavit in the light most favorable to defendant, State v. Preciose, 129 N.J. 451, 462-63 (1992), does not alter that it amounts to nothing more than inadmissible hearsay from an untraceable person. Further, according to Green, he and others were aware that defendant was arrested with Green's drugs almost five months before defendant pled guilty. Defendant does not explain how he came to acquire the affidavit, when he learned of Green's claim, or why he could not have learned of it before entering his plea. See State v. Carter, 85 N.J. 300, 314 (1981) (discussing the requirement of newly discovered evidence having not been previously discoverable by reasonable diligence).
The State also notes that the statute of limitations having long since expired for the drug offenses, N.J.S.A. 2C:1-6b, "anyone could come forward to proclaim his own guilt and defendant's innocence with total impunity."
Moreover, the Green affidavit is at odds with the factual basis defendant provided for the entry of his plea when he admitted that he was selling cocaine with Smith and pushed a "sheriff's officer" attempting to effect his arrest. See State v. Mustaro, 411 N.J. Super. 91, 105-06 (App. Div. 2009) (declining to adopt a rule requiring a court evaluating a motion to withdraw a plea to assume that the defendant would have testified to facts in direct conflict with those facts he stated, under oath, at the time of his guilty plea). His account and Green's are in direct conflict. Accordingly, defendant cannot be said to have set forth "'particular, plausible facts' that, if proven in court, would lead a reasonable factfinder to determine the claim is meritorious." State v. Munroe, 210 N.J. 429, 442 (2012) (quoting Slater, supra, 198 N.J. at 158-59). He has thus not asserted a colorable claim of innocence under the first Slater factor. Slater, supra, 198 N.J. at 158-59, 162-63; see also Munroe, supra, 210 N.J. at 445 (noting that as in Slater, Munroe's plea colloquy was not inconsistent with his sworn testimony in support of his motion to withdraw his guilty plea).
Although both parties refer to the pre-sentence reports for additional facts concerning the State's evidence of these crimes, which apparently was based on surveillance conducted by a Sheriff's Office task force, neither included the reports in the appendix on appeal and they are thus unavailable to us.
We note that defendant's conviction on Indictment No. 95-05-1725 was also for selling drugs on South 8th Street in Newark within 1000 feet of Martin Luther King School.
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Although the third Slater factor is accorded little weight, it also cuts against defendant here as defendant received a favorable plea agreement. In addition to agreeing to a concurrent term to the one imposed arising out of Indictment No. 95-05-1725, the State waived its right to seek an extended term. In contrast, the fourth Slater factor, prejudice to the State and consequent unfair advantage to defendant, would appear significant. Although the State need not demonstrate prejudice in the absence of defendant's proof of the other factors, Slater, supra, 198 N.J. at 162, the difficulty in prosecuting the crimes given the lapse of fifteen years since this plea, is manifest.
As the record did not permit a finding that a grant of defendant's motion to vacate his guilty plea was necessary to correct a manifest injustice, there is no reason to remand for the purpose of allowing the trial court to consider such a motion. Further, as this discussion illustrates, Green's hearsay statements, although cloaked in the formality of an affidavit, cannot be considered material or of the sort that would probably alter the outcome of a trial so as to qualify as newly discovered evidence, even assuming, arguendo, the information were not discoverable prior to defendant's plea. See State v. Ways, 180 N.J. 171, 187-88 (2004). Accordingly, we agree with the trial judge that defendant's PCR petition as to Indictment No. 95-06-2357 could not be considered timely under Rule 3:22-12(a)(2)(b), on the basis of the Green affidavit. See State v. Brewster, 429 N.J. Super. 387, 399 n.4 (App. Div. 2013) (noting that a defendant's first petition when filed more than five years after his conviction on the basis of newly discovered evidence could be considered timely only if it met the requirements of R. 3:22-12(a)(2), and the judge concluded that the petition was based on a new factual predicate not previously discoverable by the exercise of reasonable diligence). Finally, because Green's affidavit consists only of inadmissible hearsay, no evidentiary hearing was required to test its credibility. See State v. Marshall, 148 N.J. 89, 158 (instructing that an evidentiary hearing need not be granted when the defendant's allegations are "too vague, conclusory, or speculative" to warrant an evidentiary hearing), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION