Opinion
DOCKET NO. A-1528-13T2
04-21-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TOMMIE TELFAIR, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Janet A. Allegro, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and St. John. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 90-11-5155 and 95-02-0687. Joseph E. Krakora, Public Defender, attorney for appellant (Janet A. Allegro, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Tommie Telfair appeals from the denial of his petition for post-conviction relief (PCR). Defendant argues the PCR judge erred by denying the petition on procedural grounds and he was denied effective assistance of counsel. We disagree and affirm.
On November 1, 1990, the Essex County Grand Jury returned nine-count Indictment No. 90-11-5155, charging defendant and three co-defendants. Defendant was charged in two counts: count eight charged him with third-degree possession of a weapon (a sawed-off shotgun), N.J.S.A. 2C:39-3(b); and count nine charged him with third-degree hindering apprehension, prosecution, conviction or punishment of another for the offense of robbery, N.J.S.A. 2C:29-3(b).
On April 10, 1991, pursuant to a negotiated agreement, defendant pled guilty to count nine, and count eight was dismissed. Defendant was given a two-year probationary sentence.
On February 16, 1995, the Essex County Grand Jury returned Indictment No. 95-02-0687, charging defendant with two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (counts one and two); count three, third-degree possession of a firearm without a permit, N.J.S.A. 2C:39-5(b); and count four, second degree possession of a weapon for unlawful purpose, N.J.S.A. 39-4(a).
A jury trial was held on June 22 and 23, 1995. On June 23, defendant was found guilty of count one, aggravated assault, and not guilty on the remaining counts. On July 24, 1995, defendant was sentenced to a prison term of five years with three years of parole ineligibility. Appropriate fines and penalties were also imposed. On August 20, 1997, in a per curiam opinion, we affirmed defendant's conviction and sentence and the Court denied certification. State v. Telfair, No. A-1540-95 (App. Div. Aug. 20, 1997), certif. denied, 152 N.J. 190 (1997).
On July 11, 2012, defendant filed a pro se PCR petition for both Indictment No. 90-11-5155 and Indictment No. 95-02-0687. Counsel for defendant filed a letter brief in support of defendant's petition on June 7, 2013. Defendant submitted a supplemental certification in support of his petition on May 30, 2013.
On August 19, 2013, in an oral opinion, Judge Michael L. Ravin denied defendant's petition for PCR finding the petition was procedurally time-barred, pursuant to Rule 3:22-12(a). Further, Judge Ravin found defendant failed to establish that his right to a fair trial was prejudiced by alleged errors of either plea counsel or trial counsel. The judge further noted that defendant's claim of ineffective trial counsel should have been raised on direct appeal.
On appeal, defendant raises the following issues for our consideration:
POINT I
THE PCR COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF, IN PART, ON PROCEDURAL GROUNDS PURSUANT TO R. 3:22-12(a).
POINT II
THE COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE EFFECTIVE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
Defendant argues that the PCR court erred by concluding his petition was barred pursuant to Rule 3:22-12(a). We disagree.
"'Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus.'" State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)). A defendant must bring a PCR petition within five years of the contested judgment or sentence, unless the petition alleges that the delay was due to the defendant's "excusable neglect" and there is a "reasonable probability" that a "fundamental injustice" would result if the petition's assertions were barred. R. 3:22-12(a)(1). Rule 1:1-2(a) further permits the court to disregard the five-year time bar when defendant demonstrates an injustice by a preponderance of the credible evidence. State v. Mitchell, 126 N.J. 565, 579 (1992). These exceptions are only applied in extraordinary circumstances. Id. at 577.
Demonstrating 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). In determining whether a defendant has demonstrated excusable neglect, we "consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an injustice sufficient to relax the time limits." State v. Milne, 178 N.J. 486, 492 (2004) (citations and internal quotation marks omitted).
On July 11, 2012, defendant filed a pro se PCR petition for Indictment No. 90-11-5155 and Indictment No. 95-02-0687. The filing was more than twenty-one years and seventeen years, respectively, after the entry of the judgments of conviction.
In his supplemental brief, defendant indicated that he had no experience with legal matters and trusted his lawyers to advise him accordingly. He claimed ignorance of the law prevented him from filing his PCR petition in a timely manner. However, "[i]gnorance of the law and rules of court does not qualify as excusable neglect." State v. Merola, 365 N.J. Super. 203, 218 (Law Div. 2002) (citing State v. Murray, 162 N.J. 240, 246 (2000)), aff'd o.b., 365 N.J. Super. 82, 84 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). Furthermore, the extent of the delay would likely prejudice the State by significantly diminishing the State's ability to present reliable evidence at trial. See Milne, supra, 178 N.J. at 492.
The PCR judge correctly found that defendant's PCR petition was procedurally barred as untimely. Defendant has failed to show excusable neglect, and we agree with the PCR judge that defendant's late PCR claim is barred under Rule 3:22-12(a)(1).
Further, we conclude the PCR judge was correct in that, even if not procedurally barred, defendant failed to establish a prima facie case of ineffective assistance of counsel. In order to establish a claim of ineffective assistance, a defendant must meet the two-prong test by establishing both that: (1) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's right to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); State v. Fritz, 105 N.J. 52 (1987).
We determine defendant did not satisfy this test. Defendant asserts his attorneys were ineffective at both his 1991 guilty plea and 1995 trial. He alleges his counsel was deficient for various reasons including: failing to properly advise him of all legal matters pertaining to his case, failing to warn him of certain collateral legal consequences of pleading guilty, failing to file appropriate pretrial motions, and failing to adequately explore possible defense witnesses. The record does not support defendant's contentions. We agree with the PCR court's determination that defendant made "no assertions whatsoever about the facts of his cases" nor did he make a "colorable claim of innocence."
Therefore, because the PCR judge correctly found defendant's petition procedurally barred, and because of defendant's inability to demonstrate a reasonable likelihood of satisfying the Strickland/Fritz test, we conclude that PCR was properly denied.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION