Opinion
DOCKET NO. A-6229-11T2
03-17-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL DARBY, Defendant-Appellant.
Michael Darby, appellant pro se. Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Meghan O. Price Furfari, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges St. John and Leone.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment NO. 91-08-8251.
Michael Darby, appellant pro se.
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Meghan O. Price Furfari, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Michael Darby appeals the trial judge's corrected order of July 30, 2012, denying defendant's motion to have counsel appointed to pursue defendant's post-conviction relief (PCR) application, and the judge's July 31, 2012 order denying defendant's motion for reconsideration. We affirm.
On October 24, 1991, defendant pled guilty to murder and four counts of armed robbery. On December 3, 1991, defendant was sentenced to a life sentence with a thirty-year period of parole ineligibility for the murder and to a consecutive fifteen-year term for the robberies. Defendant did not appeal.
Defendant filed his first petition for PCR on October 11, 2005, more than fourteen years after his sentencing. He claimed ineffective assistance of counsel and an illegal sentence. The Law Division denied relief because the petition was time-barred and because it had no merit.
On appeal, in an unpublished opinion we affirmed, holding that defendant had not shown excusable neglect for the late filing, that counsel had not been deficient, and that it was not illegal to run the sentences consecutively. The Supreme Court denied certification. State v. Darby, 196 N.J. 464 (2008). Defendant then filed a second PCR petition on June 16, 2009. He argued that the prior decision, finding that his counsel did not provide ineffective assistance and that his petition was time-barred, was wrong. On November 9, 2009, the trial judge held that the second petition was filed out of time, that the issues raised had already been decided against defendant on appeal, and that they were without merit.
Defendant's third PCR petition was filed on August 4, 2011. The trial judge dismissed it as time-barred by Rule 3:22-12(a)(2) on October 6, 2011. We affirmed.
Defendant also filed a writ of habeas corpus and a PCR in the federal courts which were denied.
Defendant petitioned the trial court for appointment of counsel to assist him in pursuing yet another PCR. The trial judge, by order filed on July 10, 2012, and a corrected order filed on July 30, 2012, denied the request, and by order filed on July 31, 2012, denied defendant's motion for reconsideration. It is from those orders that defendant appeals.
Defendant claims that the trial court erred in denying his request for appointed counsel. However, defendant was entitled to the appointment of a public defender only for "the first [PCR petition] filed . . . attacking the conviction" in question. R. 3:22-6(a). For a subsequent petition, the court could have ordered the assignment of a public defender only upon a "showing of good cause." R. 3:22-6(b); State v. McIlhenny, 333 N.J. Super. 85, 87 (App. Div. 2000).
We have characterized such "good cause" as a finding "that the petition conceivably raises an issue with any merit." State v. Ellis, 116 N.J. Super. 330, 335 (App. Div. 1971). See also Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-6(b) (2013)("Presumably, a good cause finding in this context means the court's satisfaction that there is some merit in the subsequent petition and that it is not wholly frivolous."). The basis for the trial court's decision to deny defendant assigned counsel was that defendant "failed to demonstrate that the allegations contained within his petition are sufficient on their face to prevent dismissal."
We have recognized the right to competent PCR counsel notwithstanding that there may be no federal constitutional right to PCR counsel. Cf. McIlhenny, supra, 333 N.J. Super. at 87 n.1 (stating unqualifiedly "there is no federal constitutional right to counsel 'in state collateral proceedings after exhaustion of direct appellate review'") (quoting Coleman v. Thompson, 501 U.S. 722, 756, 111 S. Ct. 2546, 2568, 115 L. Ed. 2d 640, 673 (1991)). If there is no constitutional right to counsel in a post-conviction proceeding, then "a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings." Coleman, supra, 501 U.S. at 752, 111 S. Ct. at 2566, 115 L. Ed. 2d at 671.
Although the panel of our court in McIlhenny stated that there is no federal constitutional right to counsel in PCR proceedings, the United States Supreme Court has recognized that the issue is still open as it pertains to issues that a defendant is barred from raising on direct appeal. Martinez v. Ryan, 566 U.S. ____, 132 S. Ct. 1309, 1315, 182 L. Ed. 2d 272, 282 (2012).
The U.S. Supreme Court explained the basis for arguably finding a constitutional right to counsel in "initial review collateral proceedings":
Coleman, supra, left open, and the Court of Appeals in this case addressed, a question of constitutional law: whether a prisoner has a right to effective counsel in collateral proceedings which provide the first occasion to raise a claim of ineffective assistance at trial. These proceedings can be called, for purposes of this opinion, "initial-review collateral proceedings." Coleman had suggested, though without holding, that the Constitution may require States to provide counsel in initial-review collateral proceedings because "in [these] cases . . . state collateral review is the first place a prisoner can present a challenge to his conviction." Id. at 755, 111 S. Ct. 2546, 115 L. Ed. 2d 640. As Coleman noted, this makes the initial-review collateral proceeding a prisoner's "one and only appeal" as to an ineffective-assistance claim, id. at 756, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (emphasis deleted; internal quotation marks omitted), and this may justify an exception to the constitutional rule that there is no right to counsel in collateral proceedings. See id. at 755, 111 S. Ct. 2546, 115 L. Ed. 2d 640; Douglas v. California, 372 U.S. 353, 357, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963) (holding States must appoint counsel on a prisoner's first appeal).However, the Supreme Court declined "to resolve whether that exception exists as a constitutional matter." Ibid.
[Martinez, supra, 566 U.S. at ____, 132 S. Ct. at 1315, 182 L. Ed. 2d at 282.]
Because defendant has no constitutional entitlement to have appointed counsel to prosecute his fourth PCR, he must make "a showing of good cause" under Rule 3:22-6(b). He has failed to do so. The trial judge's conclusion that defendant "failed to demonstrate that the allegations contained within his petition are sufficient on their face to prevent dismissal" is amply supported by the record.
We conclude that defendant did not meet his burden of a "showing of good cause" to support the assignment of a public defender to present his PCR. R. 3:22-6(b).
In a pro se brief, defendant raises numerous issues not raised in connection with his petition for assigned counsel, and unrelated to his appeal of the orders in question. "Generally, issues not raised below, even constitutional issues, will ordinarily not be considered on appeal unless they are jurisdictional in nature or substantially implicate public interest." State v. Walker, 385 N.J. Super. 388, 410 (App. Div.), certif. denied, 187 N.J. 83 (2006).
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Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION