DOCKET NO. A-3227-12T4
Ferro and Ferro, attorneys for appellant (Nancy C. Ferro, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (James F. Smith, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and St. John. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 96-01-0199. Ferro and Ferro, attorneys for appellant (Nancy C. Ferro, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (James F. Smith, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Maurice Williams appeals from a January 25, 2013 order denying his petition for post-conviction relief (PCR) as untimely and without merit. Defendant contends he was denied effective assistance of counsel during the plea negotiation and sentencing stage of the proceedings. Having considered defendant's arguments in light of the record and controlling law, we affirm.
On January 31, 1996, under Indictment No. 96-01-0199, defendant was charged with murder, attempted murder, aggravated assault and weapons offenses. In July 1996, defendant was tried before a jury and convicted of all charges, and on September 5, 1996, he was sentenced to thirty years to life and a consecutive term of twenty years with a ten-year parole ineligibility period. We remanded the decision to the Law Division for resentencing but retained jurisdiction. State v. Williams, No. A-0398-97 (App. Div. July 26, 1999), certif. denied, 162 N.J. 486 (1999). On remand, the trial court reaffirmed the sentence. Defendant appealed, and we affirmed. State v. Williams, No. A-0398-97 (App. Div. Mar. 13, 2000), rev'd, 169 N.J. 349 (2001).
Defendant's petition for certification was granted, and on July 30, 2001, the Court overturned defendant's conviction and ordered a new trial. Williams, supra, 169 N.J. at 351. Pursuant to a negotiated plea agreement, on July 22, 2004, defendant pleaded guilty to charges of aggravated manslaughter and aggravated assault. On August 20, 2004, defendant received a sentence of thirty years with parole ineligibility of fifteen years for aggravated manslaughter and a consecutive sentence of ten years with five years parole ineligibility for aggravated assault.
Defendant appealed from the sentence imposed. On September 22, 2005, we remanded the matter to the Law Division for resentencing under State v. Natale, 184 N.J. 458 (2005). State v. Williams, No. A-3066-04 (App. Div. Sept. 22, 2006)(order on SOA calendar). On November 2, 2006, the court imposed the same sentence of thirty years with parole ineligibility of fifteen years, and ten years with parole ineligibility of five years, to be served consecutively.
Defendant filed an amended notice of appeal on November 2, 2006, appealing only his sentence and the order denying reconsideration of his sentence. We considered these issues on appeal which "relate solely to the sentence imposed," and affirmed defendant's sentence. State v. Williams, No. A-3066-04 (App. Div. June 11, 2007)(order on SOA calendar).
On May 12, 2010, defendant filed a motion asking that his appeal be reinstated and that he be permitted to raise other issues. By order entered July 30, 2010, we denied the motion without prejudice to his submission of issues, other than ones related to his sentence, in a petition for PCR. State v. Williams, No. A-3066-04/M-5269-09 (App. Div. July 30, 2010)(order on motion to vacate dismissal and reinstate appeal).
In October 2010, defendant filed a motion asking that his appeal be reinstated. On November 3, 2010, in a supplemental order, we rendered a decision on two issues raised by defendant: whether the trial court failed to explain the plea to defendant on the record and whether to hold a hearing to establish eligibility for sentencing under the Graves Act. See N.J.S.A. 2C:43-6. We concluded the transcript of the plea proceedings did not support the claim that the court failed to explain the plea and that the latter issue was not within the terms of the July 2010 order. However, we noted that "defendant may seek relief through a petition for post-conviction relief." State v. Williams, No. A-3066-04/M-1173-10 (App. Div. November 3, 2010)(order on motion to reinstate appeal).
Defendant filed an application for PCR on October 20, 2012. At oral argument, held on January 25, 2013, the court denied the application and set forth its reasons in an oral opinion. The judge found defendant's application was time-barred, and counsel was not ineffective. Notwithstanding the application of these procedural bars to relief, the court addressed the merits of defendant's application. Because defendant ultimately intended to withdraw his guilty plea, the court relied on the four-part test outlined in State v. Slater, 198 N.J. 145, 157-58 (2009), which weighs the appropriateness of withdrawing a plea. The court determined defendant failed to carry his burden of proof on each of the four points of the test. Defendant appeals the court's decision.
On appeal, defendant presents the following issues for our consideration:
THE COURT BELOW ERRED IN RULING THAT DEFENDANT DID NOT RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE PLEA NEGOTIATION AND SENTENCING STAGE OF THE PROCEEDINGS.
A. Defendant's counsel failed to ensure that the plea form regarding the Graves Act reflected defendant's understanding of the plea.
B. Defendant's counsel failed to explain the plea which is a basis for the retraction of the guilty plea.
C. Defendant's trial counsel failed to ensure that defendant's plea satisfied the statutory requirements.
D. Defendant's trial counsel failed to ensure that the Graves Act procedures were followed.
E. The appropriate remedy in this case is to permit withdrawal of defendant's guilty plea.
We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420-21 (2004); Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Where no evidentiary hearing has been held, we "may exercise de novo review over the factual inferences drawn from the documentary record by the [PCR judge]." Id. at 421 (citing Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991)). Thus, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court." Ibid.
Defendant's PCR application was filed October 20, 2012, nearly eight years after the August 2, 2004 sentencing and nearly six years after the November 2, 2006 Natale resentencing. Although the five-year time limitation properly ran from the 2004 sentencing, see State v. Dugan, 289 N.J. Super. 15, 20 (App. Div.), certif. denied, 145 N.J. 373 (1996), when measured from either the 2004 sentencing or the 2006 resentencing, defendant's request is outside of the five-year period for a first PCR petition. See R. 3:22-12(a)(1).
Defendant alleges his right to a PCR hearing was preserved when we, in our November 3, 2010 decision, denied defendant's motion without prejudice and stated that "[d]efendant may seek relief through a petition for post-conviction relief." Defendant argues, in making the statement that he "may seek relief" through a PCR hearing, we intended to preserve his right to a PCR hearing without regard to Rule 3:22-12(a)(1). However, this interpretation is misplaced.
Rule 3:22-12(a)(1) provides that "no petition shall be filed . . . more than 5 years" after the entry of the challenged judgment of conviction, absent excusable neglect. The five-year time limitation of Rule 3:22-12 runs from the date of the conviction or sentencing, whichever the defendant is challenging. State v. Milne, 178 N.J. 486, 491 (2004); State v. Goodwin, 173 N.J. 583, 594 (2002). The date is not stayed nor tolled by appellate or other post-conviction proceedings. Dugan, supra, 289 N.J. Super. at 19-21; State v. Dillard, 208 N.J. Super. 722, 727 (App. Div.), certif. denied, 105 N.J. 527 (1986).
Applications for PCR, "'New Jersey's analogue to the federal writ of habeas corpus,'" Milne, supra, 178 N.J. at 491 (quoting State v. Preciose, 129 N.J. 451, 459 (1992)), are governed by Rule 3:22. PCR is not a substitute for direct appeal. R. 3:22-3. An application for PCR may not be filed more than five years after the judgment or sentence attacked "unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." R. 3:22-12(a)(1). Such a claim must be made in the application and allege facts sufficient to support it. State v. Cann, 342 N.J. Super. 93, 101-02 (App. Div.), certif. denied, 170 N.J. 208 (2001).
We have applied this rule to bar review of untimely PCR petitions. See State v. Cummings, 321 N.J. Super. 154, 166-67 (App. Div.) (refusing to excuse late PCR petition based on the defendant's purported difficulty with reading and writing and ignorance of right to seek PCR), certif. denied, 162 N.J. 199 (1999); State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div. 1998) (holding that a mistake of law does not amount to excusable neglect and a petition filed beyond five years is barred), aff'd as modified, 162 N.J. 240 (2000); Dugan, supra, 289 N.J. Super. at 22; State v. Miller, 277 N.J. Super. 122, 125, 129 (App. Div. 1994) (holding a petition filed six-and-one-half years after conviction is time-barred), certif. denied, 142 N.J. 449 (1995); State v. Jenkins, 221 N.J. Super. 286, 293 (App. Div. 1987) (holding a petition filed more than five years after judgment of conviction is time-barred), certif. denied, 113 N.J. 343 (1988), cert. denied, 488 U.S. 1032, 109 S. Ct. 843, 102 L. Ed. 2d 975 (1989).
Defendant's application for PCR was clearly out of time. Further, he offered no "excusable neglect" for his untimely filing. Instead, defendant points to an alleged "instruction" we gave stating that defendant "may seek relief" through a PCR hearing.
In noting that the defendant "may" pursue a PCR hearing, we did not excuse defendant's compliance with Rule 3:22-12(a)(1). Indeed, a defendant may pursue relief through a PCR hearing either within the five-year time limitation or by a showing of excusable neglect or a fundamental injustice. By acknowledging the availability of PCR to address such matters, we did not authorize defendant's right to a PCR hearing absent these conditions. Because defendant made no showing of excusable neglect or fundamental injustice, we conclude the PCR court's decision that his application for a PCR hearing is time-barred was not in error.
Although we determine that defendant is time-barred from pursuing his PCR claim, in the interest of completeness, we address his claim that he was provided ineffective assistance of counsel during the plea negotiation and sentencing stage of the proceedings. Defendant grounds his argument on two main points: first, defendant's counsel did not ensure that defendant understood the plea and that his understanding was reflected in the necessary documentation; and second, that his counsel was ineffective by failing to make sure that defendant's plea negotiations satisfied the necessary requirements and procedures. Defendant asserts the appropriate remedy is to permit withdrawal of his guilty plea.
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test by establishing both that: (1) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
Defendant has not satisfied the first prong of the Strickland/Fritz test. See State v. Castagna, 187 N.J. 293, 314 (2006) (ineffective assistance requires a determination that counsel's conduct "fell outside of the wide range of professionally competent assistance considered in light of all of the circumstances of the case" (internal quotation marks and citation omitted)).
Defendant presents no facts beyond bald assertions to support a contention of ineffective assistance of trial counsel. Instead, the record demonstrates that defendant affirmed his understanding of the plea and Graves Act consequences through his answers in the plea colloquy and in written correspondence with his attorney. Regarding his counsel's alleged failure to ensure the necessary procedure was followed, defendant fails to show that there is a reasonable probability that, but for counsel's alleged unprofessional errors, the result of the proceeding would have been different.
Further, in our November 3, 2010 order, we determined that the transcript of the plea proceedings of July 22, 2004 did not support defendant's contention that the trial court failed to explain the plea. As such, these arguments warrant no further discussion. See R. 3:22-5. Defendant does not identify any new rule of constitutional law or other facts that would excuse his failure to raise these issues on a timely basis. Therefore, defendant's petition is time-barred.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION