Opinion
DOCKET NO. A-3359-13T4
04-26-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. HASANI ABEYOME DAVIS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Currier. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-10-3446. Joseph E. Krakora, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from the denial of his petition for post-conviction relief (PCR), which was denied without oral argument or an evidentiary hearing. We affirm.
Defendant pled guilty pursuant to a plea agreement to: one count of third-degree terroristic threats, N.J.S.A. 2C:12-3(a); one count of third-degree resisting arrest, N.J.S.A. 2C:29-2(a); one count of first-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(b)(1); one count of second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(b); and one count of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7). Consistent with the recommendation in the plea agreement, defendant was sentenced to an aggregate term of ten years with a five-year period of parole ineligibility in November 2003. Defendant did not file a direct appeal.
Defendant filed a pro se PCR petition in March 2013, which was supplemented by a brief submitted by counsel, alleging he received ineffective assistance from his plea counsel. The PCR judge denied defendant's petition on the papers and set forth his reasons in a written opinion. In addition to finding that defendant's petition was time-barred pursuant to Rule 3:22-12, the judge addressed the merits of defendant's petition and concluded he had failed to carry "his burden of establishing a prima facie case of ineffective assistance of counsel" or prejudice.
The trial court treated defendant's "Motion to Vacate/Set Aside/Correct Judgment(s), Conviction(s) and or Sentence Pursuant to 'Coram Nobis/Writ of Error'" as a PCR petition.
On appeal, defendant presents the following arguments:
POINT I
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE CASE REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ TEST.
A. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION BECAUSE TRIAL COUNSEL DID NOT CONDUCT AN ADEQUATE INVESTIGATION.
B. THE TRIAL COURT ERRONEOUSLY ACCEPTED THE DEFENDANT'S PLEAS BECAUSE THEY WERE NOT GIVEN KNOWINGLY AND VOLUNTARILY.
POINT II
THE PCR COURT ERRED BY DENYING ORAL ARGUMENT ON THE ISSUES RAISED IN THE DEFENDANT'S PETITION AND FAILED TO SET FORTH A STATEMENT OF REASONS WHY ORAL ARGUMENT WAS NOT NECESSARY.
POINT III
THE PCR COURT'S RULING THAT THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WAS PROCEDURALLY BARRED BY THE FIVE-YEAR TIME BAR OF R. 3:22-12 WAS CONTRARY TO THE CRITERIA CONTROLLING THE EXCUSABLE NEGLECT EXCEPTION.
After reviewing these arguments in light of the record and applicable legal principles, we conclude that none have any merit.
Rule 3:22-12(a)(1) provides that a first PCR petition must not "be filed . . . more than [five] years after the date of entry . . . of the judgment of conviction that is being challenged." R. 3:22-12(a)(1). However, a court may relax the five-year time bar "if the defendant alleges facts demonstrating that the delay was due to the defendant's excusable neglect or if the 'interests of justice' demand it." State v. Goodwin, 173 N.J. 583, 594 (2002) (quoting State v. Mitchell, 126 N.J. 565, 576 (1992)); see R. 3:22-12(a)(1).
Defendant was sentenced pursuant to his plea in November 2003, and filed this PCR petition in March 2013. Because defendant's petition was filed more than nine years after the judgment of conviction was entered, it is procedurally barred as untimely unless defendant's delay was due to excusable neglect and there is "a reasonable probability" that enforcement of the time-bar would result in a fundamental injustice. R. 3:22-12(a).
Defendant concedes his PCR petition was not timely filed. He contends the five-year limitation should be relaxed because his delay was due to excusable neglect. His claim of excusable neglect is based upon unsupported assertions that he "is a layperson who is developmentally disabled with low self-esteem and a full scale IQ of 64"; he only became aware of his right to PCR at the time this petition was prepared and filed; and the sentencing court failed to advise him "about his right to [PCR] [and] the time period in which to file a petition."
"The concept of excusable neglect encompasses more than simply providing a plausible explanation for a failure to file a timely PCR petition." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). If the petitioner fails to allege sufficient facts, Rule 3:22-12(a)(1) "bars the claim." Mitchell, supra, 126 N.J. at 576. A defendant's "lack[] [of] sophistication in the law does not satisfy the exceptional circumstances required" for relaxation of the time-bar. State v. Murray, 162 N.J. 240, 246 (2000).
Defendant fails to provide sufficient factual detail to support the conclusion that it was excusable for him to file his petition more than five years after the date of entry of the judgment of conviction. The facts presented by defendant provide no more than a plausible explanation for his delay. He has also failed to show that the interests of justice demand relaxation of the Rule. The PCR court correctly dismissed defendant's petition as untimely filed.
We turn then to defendant's contention that the PCR judge erred by disposing of his petition without affording an opportunity for oral argument, and by failing to "set forth a statement of reasons explaining why oral argument was not necessary."
The decision to grant oral argument is "left to the sound discretion of" the PCR judge, and Rule 3:22 does not contain an explicit statement with respect to whether a defendant is entitled to present oral argument in support of a PCR petition. State v. Mayron, 344 N.J. Super. 382, 385-86 (App. Div. 2001).
The Supreme Court in State v. Parker, 212 N.J. 269 (2012) observed the absence of an express directive, but held that a trial court should approach a first PCR application "with the view that oral argument should be granted." Id. at 277-78, 282-83; see Mayron, supra, 344 N.J. Super. at 387-88 ("[T]here should be a significant presumption in favor of oral argument[,] [i]n light of what is at stake for a defendant . . . ."). The Court advised that when deciding whether to hear oral argument, "the facts should be 'view[ed] in the light most favorable to a defendant.'" Parker, supra, 212 N.J. at 282 (alteration in original) (quoting State v. Preciose, 129 N.J. 451, 463 (1992)). The Court stated further that a defendant need not specifically request oral argument and may rely on the "strong presumption in favor of oral argument." Id. at 283.
The Court instructed that when a PCR court determines oral argument is not necessary, it "should provide a statement of reasons . . . tailored to the particular application" explaining why it determined oral argument was not needed. Id. at 282. The Court cautioned, "[a] general reference to the issues not being particularly complex is not helpful to a reviewing court." Ibid.
Here, as in Parker, the Court did not entertain oral argument. Id. at 275. However, the defendant's petition in Parker did not suffer from the procedural flaw that is clearly present in this case. The defendant in Parker timely filed a petition for PCR — approximately four years after he was sentenced. Ibid.; see R. 3:22-12(a)(1). In the present matter, defendant filed this petition almost nine years after sentencing. As discussed, this is well beyond the five-year time limit set forth in Rule 3:22-12(a).
It is unclear from the record whether oral argument was requested or waived. The absence of a specific request does not affect our analysis. See Parker, supra, 212 N.J. at 283. We will not assume defendant waived oral argument in the absence of a clear indication that such action was taken. --------
Although Parker instructed judges to approach each PCR petition with a view in favor of oral argument, it did not hold that every defendant is entitled to present oral argument as a matter of law. We do not disagree that the better practice would have been to conduct oral argument or give a clear statement of reasons as to why oral argument was not necessary. Nevertheless, we are satisfied that the failures to do so here did not constitute an abuse of discretion that warrants reversal. In consideration of the time-bar and defendant's failure to establish excusable neglect or injustice, we fail to see how the purposes underlying post-conviction review would have been furthered by oral argument.
In light of our decision, we need not address the merits of defendant's remaining argument that the PCR judge erred by finding he failed to establish a prima facie case of ineffective assistance of counsel warranting an evidentiary hearing.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION