Opinion
DOCKET NO. A-3320-12T4
07-02-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GREGORY DAYTON, a/k/a GREGERY DAYTON, ISMAEL DAYTON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Hoffman.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 98-05-0524.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Gregory Dayton appeals from the October 18, 2012 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Between April and November 1997, defendant, then twenty-five years old, engaged in sexual relations with T.C., a minor under the age of sixteen. As a result, T.C. became pregnant and eventually delivered defendant's child. Defendant claimed he believed T.C. was over sixteen years old at the time of these encounters.
On May 28, 1998, a grand jury indicted defendant on charges of second-degree sexual assault, N.J.S.A. 2C:14-2(c) (count one), third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count two), and fourth-degree sexual contact, N.J.S.A. 2C:14-3(b) (count three). Defendant was on parole when these offenses occurred, and on October 5, 1998, defendant's parole officer had defendant sign a "special condition" form acknowledging that he "must not have any contacts with [T.C.]."
On November 2, 1998, defendant pled guilty to count two. Pursuant to a negotiated plea agreement, the State agreed to dismiss the remaining counts and recommend a sentence of two years' probation, community supervision for life (CSL) under Megan's Law pursuant to N.J.S.A. 2C:43-6.4, and the lifting of the no contact order between defendant and T.C. At the plea hearing, defendant stated he understood the plea agreement and was entering the agreement voluntarily. Defendant said he was satisfied with the legal services provided by his attorney and that he was aware he would be subject to requirements imposed by Megan's Law.
On December 11, 1998, the court sentenced defendant in accordance with the plea agreement, specifically ordering that defendant "is subject to the requirements of Megan's Law. He [will] be required to sign up, register on a regular basis, and that will include lifetime supervision under the provisions of that law."
On November 18, 1999, defendant was charged with violation of probation (VOP) for failing to abide by the conditions of his CSL. On September 8, 2000, defendant received a four-year state prison term on the VOP charge. On April 5, 2001, the State amended defendant's judgment of conviction (JOC) to specifically include CSL under Megan's Law pursuant to N.J.S.A. 2C:43-6.4.
Defendant failed to include the JOC entered on December 11, 1998 in his appendix. We assume the part of the sentence relating to Megan's Law and CSL under N.J.S.A. 2C:43-6.4 was inadvertently omitted, thus explaining the need for the amended JOC in 2001.
Defendant was released from prison in 2005 and was subsequently served with a two-page document setting forth the general conditions of CSL on August 3, 2005. Of relevance here, provision A.16 prohibited defendant from having "any contact . . . with the victim(s) of the offense unless contact is authorized by the assigned parole officer." Despite this provision, the record contains no evidence that defendant's violation of this specific provision was the basis for any of the four subsequent charges of violating CSL conditions lodged against defendant between 2006 and 2011. Instead, defendant was charged with violating his CSL by failing to register, failing to report, failing to report a change of address, failing to refrain from using narcotics, failing to abide curfew, etc. Additionally, defendant clearly had continued contact with T.C. as they had another child together.
The record indicates he was again served with this document on January 20, 2006.
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On November 17, 2011, defendant filed a pro se petition for post-conviction relief (PCR) alleging the CSL conditions were contradictory to the provision in his plea agreement permitting him to have contact with T.C. Defendant further claimed he would not have accepted the plea agreement had he known the CSL condition prevented him from contacting T.C.
On October 18, 2012, Judge James R. Swift heard oral argument and denied defendant's petition. Notably, a month before the hearing, the parole board granted defendant permission to live with his current wife and children. Judge Swift found defendant's petition was time-barred, pursuant to Rule 3:22-12(a)(1), because it was filed thirteen years after defendant was convicted, and failed to allege facts showing excusable neglect or fundamental injustice. The judge also rejected defendant's claim of ineffective assistance of counsel, noting defendant could not satisfy the requirements of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984).
On appeal, defendant presents the following issues for our consideration:
POINT I: [DEFENDANT'S] GUILTY PLEA VIOLATED HIS RIGHT TO DUE PROCESS AND MUST BE SET ASIDE AS NOT KNOWING OR VOLUNTARY BECAUSE HE WAS MISINFORMED AS TO ITS PENAL CONSEQUENCES
POINT II: [DEFENDANT] IS ENTITLED TO RELIEF OR A HEARING ON HIS CLAIM THAT HIS TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR MISINFORMING HIM ABOUT THE PENAL CONSEQUENCES OF HIS PLEA
After carefully reviewing the entire record and the applicable law, we conclude defendant's contentions lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons set forth in Judge Swift's cogent oral opinion. We add the following comments.
Because this is defendant's first PCR petition, it is governed by Rule 3:22-12(a)(1), which provides:
[N]o petition shall be filed pursuant to this rule more than 5 years after the date of entry pursuant to Rule 3:21-5 of the judgment of conviction that is being
challenged unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that 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.
Defendant's initial JOC was entered in 1998 and the amended JOC, specifically including the CSL under Megan's Law pursuant to N.J.S.A. 2C:43-6.4, was entered in 2001. Therefore, the petition defendant filed in 2011 was clearly filed well beyond the five-year period required by the rule.
To be entitled to a relaxation of the rule based upon excusable neglect, the petitioner must "allege[] facts demonstrating that the delay was due to the defendant's excusable neglect" and, "[i]f the petitioner does not allege sufficient facts, the Rule bars the claim." State v. Mitchell, 126 N.J. 565, 576 (1992). "A petition is time-barred if it does not claim excusable neglect, or allege the facts relied on to support that claim." State v. Cann, 342 N.J. Super. 93, 101-02, (App. Div.) (citing Mitchell, supra, 126 N.J. at 577), certif. denied, 170 N.J. 208 (2001). Defendant alleges no facts that could constitute excusable neglect nor do any such facts appear in the record.
Defendant's petition merely stated the CSL provisions violated his plea agreement, and he would not have accepted the agreement had he known he could not see his children. The record shows defendant clearly became aware of the CSL provisions after receiving his first VOP charge on November 18, 1999, and again after he was served with the written CSL conditions on August 3, 2005, and January 20, 2006. Defendant provides no explanation for his delay in seeking PCR.
Judge Swift also correctly found no "fundamental injustice" sufficient to relax the time limit for defendant's PCR petition. Defendant admits he had sex with T.C. in 1997 when she was under the age of sixteen and he was twenty-five years old. While defendant asserts he was mistaken about the T.C.'s age, such a mistake is not a defense to N.J.S.A. 2C:24-4(a). See State v. Bryant, 419 N.J. Super. 15, 17-18 (App. Div. 2011). As a result, we find no abuse or error that resulted in an improper finding of guilt. See Mitchell, supra, 126 N.J. at 587. Moreover, by the time of the PCR hearing, defendant had been granted permission to live with his family. At that point, there was no discernable claim of injustice.
Finally, the thrust of defendant's petition — that he cannot live with his family - can be and has been remedied administratively, further diminishing defendant's claim of prejudice. CSL did not foreclose defendant's ability to have contact with T.C. and their children. Specifically, Provision A.16 of the general conditions permits contact with the victim if authorized by the assigned parole officer. N.J.A.C. 10A:71-6.11(b)(16). Moreover, defendant may reside with a minor if approved by a parole officer or if the minor is in the presence of his or her parent. N.J.A.C. 10A:71-6.11(c)(3), (d)(2), (d)(5). Ultimately, administrative remedies are available to challenge any unreasonable condition of parole, including CSL parole. See Jamgochian v. N.J. State Parole Bd., 196 N.J. 222, 241-42 (2008); Sanchez v. N.J. State Parole Bd., 368 N.J. Super. 181, 187-89 (App. Div. 2004).
Having reviewed the additional arguments raised on appeal, we find them lacking in merit and not warranting discussion in a written 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 APPEALATE DIVISION