Opinion
DOCKET NO. A-5561-13T1
02-11-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SHAWN COPELAND, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 03-01-0289 and 03-03-0891. Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, 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 Shawn Copeland appeals from the June 6, 2014 order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
In January 2003, a grand jury sitting in Essex County returned a six-count indictment charging defendant with third-degree possession, possession with intent to distribute cocaine and heroin, and weapons charges.
In March 2003, a second grand jury returned an indictment charging defendant with two counts of second-degree sexual assault and one count of third-degree endangering the welfare of a child.
On February 23, 2004, defendant resolved both indictments by entering guilty pleas pursuant to a negotiated plea agreement. On the first indictment, defendant pled guilty to two counts of third-degree possession of heroin and cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1), and one count of third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b). On the second indictment, defendant pled guilty to second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4).
On July 23, 2004, defendant was sentenced consistent with the plea agreement. On the sexual assault charge, he received a seven-year term subject to Megan's Law with community supervision for life. On the remaining charges, he received concurrent five-year terms with a thirty-month parole disqualifier.
No direct appeal was taken from the judgments of conviction. On November 7, 2013, defendant wrote a letter to the court requesting the assignment of counsel to assist him in having his "case re-opened, and correct this wrongful conviction." In a document attached to his letter, defendant claimed that he informed his plea counsel that he would plead guilty to the drug charges but wanted to go to trial on the sexual assault charges.
The sentencing judge had retired and a different judge heard the PCR petition. --------
After counsel was assigned, a brief in support of defendant's PCR petition was filed. On June 6, 2014, the PCR judge heard argument. Defendant was in federal custody and PCR counsel did not request his production. The judge denied the petition, finding procedurally it was time-barred, and substantively it lacked merit.
On appeal, defendant raises two points:
POINT ONE
DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING BECAUSE PLEA COUNSEL WAS INEFFECTIVE IN FAILING TO ADEQUATELY INVESTIGATE AND ADVISE HIM REGARDING THE SEXUAL ASSAULT CONVICTION, THEREFORE HIS PLEA WAS NOT KNOWINGLY AND VOLUNTARILY GIVEN.
POINT TWO
THE FIVE YEAR TIME BAR SHOULD BE RELAXED DUE TO DEFENDANT'S EXCUSABLE NEGLECT AND/OR THE INTERESTS OF JUSTICE.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-pronged test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). A defendant must show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). A defendant must also prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d. at 696. That is, the defendant must show by a "reasonable probability" that the outcome of the case was affected by the deficient performance. Fritz, supra, 105 N.J. at 58.
"[W]hen a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) certif. denied, 162 N.J. 199 (1999).
PCR petitions are subject to a five-year time limit. R. 3:22-12. The five-year period commences when the judgment of conviction is entered, and a court should only relax the bar under "exceptional circumstances." State v. Afanador, 151 N.J. 41, 52-53 (1997).
Defendant's judgment of conviction was entered on July 23, 2004; his PCR petition was filed more than nine years later. Absent a showing of exceptional circumstances, his petition is barred by Rule 3:22-12.
Defendant argues that the five-year time bar should be relaxed due to excusable neglect, or alternatively, in the interests of justice. In support of this claim, defendant maintains that his petition "raises substantial constitutional questions, such as not being fully apprised of the evidence against him or understanding the elements of the sexual assault conviction."
The PCR judge carefully reviewed each of these claims and found them without merit. We agree. Defendant claims that his trial counsel failed to investigate the DNA evidence, but does not state how an investigation would have changed the result. Defendant was charged with having intercourse with a fourteen- year-old who was staying in the home of defendant's cousin. The victim knew defendant and identified him as her attacker. In addition, defendant was identified as the source of DNA found on the victim's underwear. Defendant was informed by plea counsel of the DNA evidence and that it would present compelling proof of his guilt if he went to trial.
Defendant's claim that he did not understand the implication of the sexual assault conviction is flatly contradicted by the record. The plea transcript indicates the judge engaged in extensive questioning of defendant as to his understanding of the consequences of his plea, including that he would be subject to a sexual offender evaluation at the Adult Diagnostic and Treatment Center at Avenel to determine if his conduct was repetitive or compulsive. The judge also advised defendant that he would be required to register as a sex offender under Megan's Law and would be subject to community supervision for life.
The remaining arguments made by defendant lack sufficient merit to warrant further discussion in our 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