Opinion
DOCKET NO. A-1037-09T4
04-03-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LEONARD STEVENS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief). Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Stephanie Davis-Elson, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Baxter.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 87-10-1150.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief).
Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Stephanie Davis-Elson, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Leonard Stevens appeals from a May 26, 2009 Law Division order denying his first petition for post-conviction relief (PCR). Defendant was charged in 1987, and convicted in 1988, of felony murder, robbery and weapons offenses and sentenced to a life prison term, subject to a thirty-year period of parole ineligibility. We affirmed his conviction in 1991, State v. Stevens, No. A-0310-88 (App. Div. April 25, 1991), and the Supreme Court denied certification, State v. Stevens, 127 N.J. 552 (1991).
This -- defendant's first PCR petition -- was filed in 2009, nearly twenty-one years after his conviction. Defendant maintains that the five-year time bar of Rule 3:22-12 should not apply to him because "applying the bar would work a fundamental injustice" and would "elevat[e] the [time] bar to an absolute prohibition [that] would virtually destroy the concept of ineffective assistance of appellate counsel, a proposition firmly and securely fixed in case law." He argues the PCR judge wrongly rejected these arguments and improperly applied the Rule 3:22-12 time bar when he refused to consider on the merits defendant's claims of ineffective assistance of counsel.
Defendant incorrectly cites Rule 3:22-4 as the source of the time bar.
We affirm.
I.
Following his July 22, 1988 conviction, defendant filed a direct appeal raising the following claims:
I. The trial judge committed reversible error in ruling, over defendant's objection,We rejected these contentions, and affirmed defendant's conviction and sentence. Stevens, supra, slip op. at 5.
that the victim's bloodstained clothes and photograph of the victim's body on the crosswalk could be admitted into evidence.
II. The trial judge committed reversible error in refusing to permit lay opinion testimony on two fact issues vital to the defense, in contravention of Evidence Rule 56(1).
III. The trial judge committed reversible error when he crossed the line from an impartial arbiter to advocate for the State by unduly limiting crucial cross-examination of State's witnesses and in making remarks in front of the jury which criticized defense counsel as well as the case for the defense.
IV. Defendant's conviction and sentence for possession of a weapon without a permit should be vacated (not raised below).
V. The trial court committed reversible error in its charge to the jury on murder, aggravated manslaughter and reckless manslaughter (not raised below).
A. The trial court's charge directing the jury to consider the manslaughter offenses only as to codefendant Larry Stevens, (and not defendant Lenny Stevens), precluded appropriate consideration of these offenses as to defendant.VI. The trial court clearly abused its discretion in imposing a life term with a thirty year period of parole ineligibility.
B. The trial court's charge directing the jury to consider in strict sequential order the three offenses charged precluded due consideration of the manslaughter charge.
Not until February 3, 2009, more than twenty years after his conviction, did defendant file his first PCR petition, which is the petition that is the subject of this appeal. In his pro se petition, defendant asserted only two claims: 1) the judge's jury instructions were faulty; and 2) the judge improperly failed to explain the law "in the context of the facts of the case after the jury asked for clarification of the law." After counsel was assigned, counsel expanded the claims being asserted and advanced the following arguments in support of defendant's PCR petition:
I. The indictment should have been dismissed in its entirety.
II. The trial court denied the defendant his right to a fair trial by jury and his due process rights to a fair trial because of improper [jury] charges.
III. Defendant's fundamental right to have the jury fairly evaluate the evidence was severely prejudiced by comments made in the prosecutor's summation.
IV. The sentence imposed by the trial court was improper, illegal and/or otherwise unconstitutional.
V. Defendant was denied the effective assistance of trial counsel in violation of the United States and New Jersey Constitutions.
VI. The cumulative effect of the errors complained of rendered the trial unfair.
VII. Defendant was denied the effective assistance of appellate counsel.
VIII. An evidentiary hearing is required with regard to the allegations of defendant's petition for post-conviction relief.
IX. The defendant's motion for post-conviction relief should not be barred by procedural consideration[s].
During the May 5, 2009 PCR hearing, at which no witnesses were presented, Judge Kracov heard extensive oral argument from the parties, and reserved decision. On May 26, 2009, the judge rendered a comprehensive oral opinion denying defendant's petition in its entirety. The judge concluded: defendant's claims lacked merit; some had already been advanced and rejected on direct appeal, and could therefore not be asserted in a PCR petition; and defendant was not entitled to an evidentiary hearing, as he had not presented a prima facie claim of ineffective assistance of trial or appellate counsel. Finally, the judge concluded that defendant's claims were barred by the five-year time bar of Rule 3:22-12, as defendant had not demonstrated either excusable neglect or extraordinary circumstances warranting the relaxation of the time bar.
On appeal, defendant raises the following claims:
I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE WHETHER HIS TRIAL AND APPELLATE COUNSEL WERE INEFFECTIVE.
A. The Prevailing Legal Principles Regarding claims of Ineffective Assistance of Counsel, Evidentiary Hearings and Petitions For Post Conviction Relief.
B. The Time Bar of R. 3:22-4 Concerning the Opportunity to Raise Certain Issues Previously Does Not Apply to Defendant's Case.
C. The Five Year Time Bar Should Be Relaxed Due to Defendant's Excusable Neglect and/or the Interests of Justice.
D. Trial Counsel Was Ineffective For Failing to File a Motion to Dismiss the Indictment.
E. The Trial Court Denied Defendant His Right to Trial by an Impartial Jury and His Due Process Right to a Fair Trial Because of Jury Charge Improprieties.
F. Defendant's Fundamental Right to Have the Jury Fairly Evaluate the Evidence Was Severely Prejudiced by Comments Made in the Prosecutor's Summation.
G. The Sentence Imposed by the Trial Court Was Improper, Illegal and/or Otherwise Unconstitutional.
H. Defendant Was Denied the Effective Assistance of Appellate Counsel.
I. Cumulative Error.
II.
A defendant must file his first PCR petition no more than five years after conviction unless the delay "was due to defendant's excusable neglect and . . . there is a reasonable probability that if the defendant's factual assertions were found to be true[,] enforcement of the time bar would result in a fundamental injustice." R. 3:22-12(a)(1). This Rule encourages defendants to bring their claims expeditiously. Doing so reduces the prejudice to the State that inevitably results from the passage of time, such as loss of evidence, dimming of memory and loss of witnesses; achieves finality of judgments; and eliminates the uncertainty associated with an unlimited possibility of relitigation. State v. Mitchell, 126 N.J. 565, 575-76 (1992).
Here, although Rule 3:22-12(a)(1) requires a defendant to file his first PCR petition no more than five years after conviction, defendant waited more than twenty years. His only justification for this gross deviation from the five-year filing requirement imposed by the Rule is that neither trial counsel nor appellate counsel advised him of his right to file a PCR petition. As the PCR judge correctly observed, defendant's "papers in this case contained no certification or affidavit explaining why he sat on his rights for almost two decades." We agree with the trial judge's determination that this bare allegation of ineffective assistance of counsel falls far short of meeting the rigorous burden a defendant must establish in proving excusable neglect. State v. Cummings, 321 N.J. Super. 154, 166, 171 (App. Div.) (holding that a defendant's lack of knowledge of his right to file a PCR petition does not constitute excusable neglect), certif. denied, 162 N.J. 199 (1999).
Moreover, two of the claims defendant advanced in his PCR petition -- Point V (defective jury charge) and Point VI (excessive sentence) -- were raised, and rejected, on direct appeal and, for that reason, are barred from being presented in a PCR petition. R. 3:22-5. Additionally, other claims defendant advanced in his PCR petition could have been raised on direct appeal, but were not, and therefore may not be raised in the PCR context. R. 3:22-4(a). The claims barred by Rule 3:22-4(a) include Point I (hearsay testimony improperly presented to the grand jury); and Point III (the prosecutor's summation was improper). None of the exceptions to Rule 3:22-4(a) is applicable, as barring these claims would not result in fundamental injustice and the claims do not arise from a new rule of constitutional law.
Having carefully considered defendant's contentions in light of the record and applicable law, we are satisfied, as was the PCR judge, that defendant's PCR claims are lacking in merit and are procedurally barred due to a combination of defendant's unexcused delay in filing his PCR petition, some of the claims having already been rejected on direct appeal, and the remaining claims not having been presented on direct appeal, although defendant had an opportunity to do so.
Affirmed.
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
CLERK OF THE APPELLATE DIVISION