Opinion
DOCKET NO. A-0483-14T1
05-24-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TROY ALVIN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief). Richard T. Burke, Warren County Prosecutor, attorney for respondent (Kelly Anne Shelton, Assistant Prosecutor, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 97-08-0326. Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief). Richard T. Burke, Warren County Prosecutor, attorney for respondent (Kelly Anne Shelton, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Troy Alvin appeals a July 25, 2014 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
We summarize the pertinent facts from the record. In 1997 defendant was charged in an indictment with three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a), five counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and three counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a).
On November 6, 1997, defendant pled guilty to two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), pursuant to a plea agreement with the State. During the plea proceeding, the judge advised defendant he would be required to comply with Megan's Law, N.J.S.A. 2C:7-1 to -11, and serve community supervision for life (CSL), N.J.S.A. 2C:43-6.4, upon completion of his custodial term.
On April 17, 1998, defendant was sentenced to concurrent five-year custodial terms on each count, compliance with Megan's Law, CSL, and fines and penalties. Defendant did not file a direct appeal. In September 2000, defendant signed paperwork regarding the conditions and obligations of the special sentence of CSL. Defendant was subsequently released from incarceration in 2001.
On April 18, 2013, defendant filed a pro se PCR petition claiming ineffective assistance of his plea counsel. Defendant was assigned PCR counsel, who filed a certification of defendant and a brief in further support of the petition. Defendant alleged that his plea counsel failed to inform him regarding the conditions of CSL and, as a result, he did not make a knowing and voluntary decision to enter his plea. Counsel's brief to the PCR court included the following argument:
POINT I:
THE DEFENDANT'S CLAIMS ARE NOT BARRED BY THE PROVISIONS OF R. 3:22 AS THEY ASSERT CONSTITUTIONAL ISSUES ARISING UNDER THE STATE AND FEDERAL CONSTITUTIONS.
. . . .
B. THE PETITION IS NOT TIME BARRED BECAUSE THE PETITIONER'S FAILURE TO FILE HIS PETITION WITHIN FIVE YEARS OF HIS CONVICTION WAS DUE TO EXCUSABLE NEGLECT AND BECAUSE THE INTERESTS OF JUSTICE WARRANT RELAXATION OF THE TIME BAR.
1. THE TIME BAR SHOULD BE RELAXED BECAUSE DEFENDANT'S DELAY IN FILING HIS PETITION WAS DUE TO EXCUSABLE NEGLECT.
2. THE TIME BAR SHOULD BE RELAXED IN THE INTERERSTS OF JUSTICE.
On June 23, 2014, the PCR court heard argument, issued an oral decision, and entered an order denying defendant's petition without an evidentiary hearing. The court found that the petition was time barred because it was filed beyond the five-year deadline under Rule 3:22-12(a)(1) and defendant failed to establish excusable neglect supporting relief from the deadline. This appeal followed.
The court's order states that defendant's petition was denied for the reasons set forth on the record, but attached to the order is a written statement of the court's findings of fact and conclusions of law. There is no substantive difference between the court's June 23, 2014 oral opinion and its written statement of reasons.
On appeal defendant argues:
POINT ONE:
DEFENDANT'S PETITION FOR POST[-]CONVICTION RELIEF SHOULD BE REMANDED WITH INSTRUCTIONS TO THE TRIAL COURT TO ORDER THE OFFICE OF THE PUBLIC DEFENDER TO APPOINT NEW PCR COUNSEL WHO WILL FULFILL HIS OR HER OBLIGATION TO PROVIDE DEFENDANT WITH THE EFFECTIVE ASSISTANCE OF COUNSEL.
POINT TWO:
THE TIME BAR OF R. 3:22-12 SHOULD NOT BE APPLIED TO DEFENDANT'S PETITION FOR POST[-]CONVICITON RELIEF.
POINT THREE:
THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.
POINT FOUR:
THE FAILURE OF TRIAL COUNSEL TO EXPLAIN THE CONSEQUENCES OF A SENTENCE THAT INCLUDED COMMUNITY SUPERVISION FOR LIFE, DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
We review the legal conclusions of a PCR court de novo. State v. Harris, 181 N.J. 391, 419 (2004) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The de novo standard of review applies to mixed questions of fact and law. Id. at 420. Where an evidentiary hearing has not been held, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court." Id. at 421.
A PCR petition must be filed within five years of the entry of the judgment of conviction unless the defendant demonstrates "excusable neglect" for missing the deadline and that "enforcement of the time bar would result in a fundamental injustice." R. 3:22-12(a)(1). The PCR petition must allege facts sufficient to demonstrate excusable neglect and fundamental injustice under Rule 3:22-12(a)(1). See State v. Mitchell, 126 N.J. 565, 576-577 (1992) (finding that a PCR "petition itself must allege the facts relied on to support the claim."); State v. Cann, 342 N.J. Super. 93, 101-02 (App. Div.) ("A [PCR] petition is time-barred if it does not claim excusable neglect, or allege the facts relied on to support that claim."), certif. denied, 170 N.J. 208 (2001).
We agree with the PCR court that defendant's petition is time barred because it is devoid of any facts demonstrating excusable neglect. Defendant was sentenced to CSL on April 17, 1998, and in his PCR petition he acknowledged being informed of the CSL conditions and obligations prior to his 2001 release from incarceration. Defendant's claim of excusable neglect was based solely upon the contention that he did not file his PCR petition until seventeen years after his conviction because he was unaware he could do so.
As correctly recognized by the PCR court, defendant's lack of knowledge of the PCR remedy does not support a finding of excusable neglect under Rule 3:22-12(a)(1). See State v. Merola, 365 N.J. Super. 203, 218 (Law Div. 2002) ("Ignorance of the law and rules of court does not qualify as excusable neglect" under Rule 3:22-12(a)(1). (citing State v. Murray, 162 N.J. 240, 246 (2000); State v. Dugan, 289 N.J. Super. 15, 22 (App. Div), certif. denied, 145 N.J. 373 (1996))), aff'd, 365 N.J. Super. 82 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
Because defendant failed to establish excusable neglect under Rule 3:22-12(a)(1), it was unnecessary for the court to determine if defendant met his burden of establishing that imposition of the time bar would result in a fundamental injustice. Because a defendant seeking relief from the time bar under Rule 3:22-12(a)(1) must show excusable neglect and that a fundamental injustice will result, we are also convinced that defendant's failure to satisfy his burden of establishing excusable neglect renders it unnecessary to decide if enforcement of the time bar will result in a fundamental injustice. See State v. Brewster, 429 N.J. Super. 387, 399-400 (App. Div. 2013) (finding a seven-year delay beyond the five-year deadline and a three-year delay lapse after defendant knew the consequences of his plea agreement "undercut a finding of excusable neglect and fundamental injustice.").
Even assuming that defendant's petition was not time barred under Rule 3:22-12(a)(1), we are satisfied that defendant failed to sustain his burden of demonstrating an entitlement to PCR relief under the two-pronged test established 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).
Under the first prong of the Strickland/Fritz standard, a petitioner "must show that counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. It must be demonstrated that counsel's representation "fell below an objective standard of reasonableness" and that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 52, 60-61.
Under the second prong of the Strickland/Fritz standard, a defendant "must show that the deficient performance prejudiced the defense." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. There must be a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Defendant must demonstrate that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
In the context of a PCR petition challenging a guilty plea based on the ineffective assistance of counsel, the second prong is established when the defendant demonstrates a "reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial." State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).
"Although a demonstration of prejudice constitutes the second part of the Strickland/Fritz analysis, courts are permitted leeway to choose to examine first whether a defendant has been prejudiced, and if not, to dismiss the claim without determining whether counsel's performance was constitutionally deficient." State v. Gaitan, 209 N.J. 339, 350 (2012) (citations omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). Here, our review of the record reveals that defendant failed to make any showing of prejudice. Although he alleges that his plea counsel's performance was deficient based upon a failure to provide advice concerning the conditions of CSL, his petition and certification are unencumbered by any facts demonstrating that there is a reasonable probability that but for his counsel's alleged failure he would have rejected the plea offer and proceeded to trial.
A petitioner must establish both prongs of the Strickland/Fritz standard in order to obtain a reversal of the challenged conviction. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 52. Defendant's failure to satisfy the second prong of the standard requires the denial of his petition for PCR. Strickland, supra, 466 U.S. at 700, 104 S. Ct. at 2071, 80 L. Ed. 2d at 702; State v. Parker, 212 N.J. 269, 280 (2012).
We are also not persuaded by defendant's contention that the matter should be remanded for the assignment of new PCR counsel. Defendant argues that his PCR counsel violated Rule 3:22-3(d) because counsel's PCR brief did not adequately argue the basis for defendant's excusable neglect under Rule 3:22- 12(a)(1) and counsel rested on his brief at oral argument before the PCR court. We disagree.
We reject defendant's contention that PCR counsel failed to comply with Rule 3:22-6(d), which requires that PCR counsel "advance all the legitimate arguments requested by the defendant that the record will support." PCR counsel made the argument that defendant's petition should not be time barred. In his brief to the PCR court, counsel asserted that defendant should be relieved from the Rule 3:22-12(a)(1) time bar because of excusable neglect. Contrary to defendant's conclusory claim that the argument was inadequate, the record reflects that it was based upon the facts in defendant's certification and grounded in the applicable law. Defendant's brief on appeal fails to identify any deficiency in the argument supporting a conclusion that it was inadequate.
Defendant's reliance on State v. Webster, 187 N.J. 254 (2006), State v. Rue, 175 N.J. 1 (2002), and State v. Hicks, 411 N.J. Super. 370 (App. Div. 2010), is misplaced. The cases interpreted PCR's counsel's obligations under Rule 3:22-6(d), and held that a PCR brief must make the arguments that are supported by the record. Webster, supra, 187 N.J. at 257; Rue, supra, 175 N.J. at 19, Hicks, supra, 411 N.J. Super. at 375-76. As noted, defendant has not demonstrated that PCR counsel violated that obligation.
Although the cases interpreted a prior version of Rule 3:22-6(d), which required that PCR counsel "advance any grounds insisted upon by defendant notwithstanding that counsel deems them without merit," the holdings of the courts applicable here are unaffected by September 1, 2009 amendment to the Rule. --------
Moreover, Rule 3:22-6(d) does not require that counsel make oral argument in further support of the arguments in a PCR petition or brief. In Webster, the Court recognized that "as in any case in which a brief is filed, counsel may choose to stand on it at the hearing, and is not required to further engage in expository argument." Webster, supra, 187 N.J. at 257 (quoting Rue, supra, 175 N.J. at 19).
PCR counsel's brief argued that defendant should be relieved from the Rule 3:22-12(a)(1) time bar based upon defendant's purported excusable neglect. PCR had no obligation under the Rule to offer oral argument in support of defendant's position at the hearing on the PCR petition. We therefore discern no basis under Rule 3:22-6(d) to remand the matter for assignment of new PCR counsel and a rehearing on defendant's petition. See, e.g., Hicks, supra, 411 N.J. Super. at 376 (finding violation of Rule 3:22-6(d) required "a new PCR proceeding").
Defendant's argument regarding PCR counsel is limited to the claim that counsel violated Rule 3:22-6(d). A violation of the Rule, however, "is not predicated upon a finding of ineffective assistance of counsel under the relevant constitutional standards." Hicks, supra, 411 N.J. Super. at 376. Instead, the Rule imposes a standard for PCR counsel that is "independent" of the constitutional obligation to provide effective assistance. Ibid.
We note that any claim that PCR counsel rendered constitutionally ineffective assistance must be analyzed under the two-pronged Strickland/Fritz standard. We generally do not consider "ineffective-assistance-of-counsel claims on direct appeal because [they] involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). We are convinced, however, that it is appropriate to consider defendant's claim that his PCR counsel failed to adequately argue defendant should be relieved from the Rule 3:22-12 time bar because there are no credibility issues relevant to PCR counsel's alleged failure and the pertinent facts appear on the record. Harris, supra, 181 N.J. at 420-21.
Defendant makes no showing that PCR counsel's performance was deficient under the first prong of the Strickland standard. In the PCR brief counsel argued that there was excusable neglect justifying the late filing of defendant's petition based upon the facts contained in defendant's certification. Defendant said he did not timely file the petition because he was unaware he was able to do so.
On appeal, defendant does not make any showing that PCR counsel's legal argument was deficient. "In some cases, the record will give PCR counsel a wealth of grist for his or her mill, in some cases, not." Rue, supra, 176 N.J. at 19. Here, the facts as alleged by defendant did not support a finding of excusable neglect under the law, Merola, supra, 365 N.J. Super. at 218, and on appeal defendant fails to demonstrate that PCR counsel's legal argument based upon those facts "fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
Defendant also fails to satisfy the second prong of the Strickland standard. Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Defendant cannot demonstrate that he suffered prejudice from any purported failure of his counsel to more adequately argue the issue of excusable neglect because defendant's assertions do not support a finding of excusable neglect. Defendant was not prejudiced by his counsel's purported failure to adequately make a legal argument that was unsupported by his own version of the facts. See, e.g., State v. Worlock, 117 N.J. 596, 625 (1990) ("The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel.").
Defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION