Opinion
DOCKET NO. A-3209-14T4
07-29-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TAJ ELLIOTT, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Lodeserto, 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, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Leone. On appeal before the Superior Court of New Jersey, Law Division, Essex County, Accusation Nos. 07-05-0810 and 07-08-0812. Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Lodeserto, 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, on the brief). PER CURIAM
Defendant Taj Elliott appeals the August 8, 2014 order denying his post-conviction relief (PCR) petition, which claims ineffective assistance of counsel. We affirm, but remand to the Criminal Part for correction of one of defendant's judgments of conviction, and for resentencing in accordance with that correction.
I.
On May 30, 2007, defendant pled guilty to third-degree receiving stolen property, N.J.S.A. 2C:20-7, under Accusation No. 07-08-0812, and fourth-degree joyriding, N.J.S.A. 2C:20-10, under Accusation No. 07-05-0810. The following facts are derived from defendant's combined plea colloquy.
Defendant was arrested on February 10, 2007, in the City of Orange, when he was found in the possession of a stolen Lincoln Navigator. Defendant was aware that the vehicle was stolen at the time he possessed it. Under Accusation No. 07-08-0812, defendant was charged with and pled guilty to third-degree receiving stolen property.
Although this Accusation bore the number "07-08-0812" it is referred to elsewhere as "07-05-0812."
Defendant was again arrested on April 7, 2007 in the city of Newark, after taking a ride in a stolen Volkswagen Passat. Defendant was aware that the Volkswagen was stolen. Under Accusation No. 07-05-0810, defendant was charged with third-degree receiving stolen property. However, that charge was downgraded pursuant to the plea agreement, and defendant pled guilty to fourth-degree joyriding. Pursuant to the plea agreement, the State agreed to recommend that defendant be sentenced to concurrent, non-custodial probation.
During the plea hearing, defendant swore under oath that: no one was forcing him to plead guilty to either offense; that he was not under the influence of any medicine or other substance that could affect his ability to make a decision; and that he was aware his plea would result in his giving up his right to have the accusations presented to a grand jury, and his right to a trial. Defendant also indicated that he could read and understand English, that he read and understood the plea agreement forms, and that he understood the maximum sentences possible in accordance with his pleas. The trial judge found that defendant's plea "was freely and voluntarily given."
On July 27, 2007, the trial judge sentenced defendant under each Accusation to a concurrent three-year term of probation, and other relevant fines and penalties were also imposed. Defendant later violated the terms of his probation by being arrested in Union County on unrelated charges.
On June 6, 2008, defendant pled guilty to violating the terms of his probation. The trial judge terminated defendant's probation and resentenced him to a term of three-years' incarceration on Accusation No. 07-08-0812 and a concurrent term of three-years' incarceration on Accusation No. 07-05-0810. The judge ordered that these sentences run concurrently with defendant's pending four-year sentence for the offense committed in Union County. Defendant did not file a direct appeal.
On September 17, 2013, defendant filed a pro se motion purportedly under 28 U.S.C.A. § 1651(a) to set aside his convictions. He alleged that he was mentally incompetent when he pled guilty, due to his low I.Q. Judge Alfonse J. Cifelli denied defendant's motion on October 29, 2013, and denied reconsideration on December 16, 2013. Defendant did not appeal those orders.
On December 11, 2013, defendant filed a pro se PCR petition. Defendant was assigned counsel in support of his petition, and oral argument was heard on July 30, 2014. Judge Verna G. Leath denied the petition in an August 8, 2014 written opinion. Defendant appeals, arguing:
Point One - DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING BECAUSE HIS PLEA COUNSEL PROVIDED HIM WITH INEFFECTIVE LEGAL ASSISTANCE.
Point Two - DEFENDANT'S PLEA WAS NOT KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY GIVEN.
Point Three - THE FIVE YEAR TIME BAR SHOULD BE RELAXED DUE TO DEFENDANT'S EXCUSABLE NEGLECT AND/OR THE INTERESTS OF JUSTICE.
II.
As the PCR court did not hold an evidentiary hearing on the claims defendant now raises on appeal, we "conduct a de novo review." State v. Harris, 181 N.J. 391, 421 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We must hew to our standard of review.
To show ineffective assistance of counsel, a defendant must satisfy the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted in State v. Fritz, 105 N.J. 42 (1987). "The defendant must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). In so doing, a defendant must overcome a "strong presumption that counsel rendered reasonable professional assistance." Ibid. Second, "a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense. 'The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 279-80 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
III.
As Judge Leath found, defendant's PCR petition is untimely. Because this was defendant's first PCR petition, Rule 3:22-12(a)(1) is applicable. Rule 3:22-12(a)(1) provides that "no petition shall be filed . . . more than 5 years after the date of entry . . . of the judgment of conviction being challenged." Here, defendant challenges the validity of his guilty pleas underlying judgments of conviction dated July 27, 2007. His PCR petition was filed December 11, 2013, more than five years after the date of his judgments of conviction.
"[I]n considering [Rule 3:22-12's] time-bar, the date of the judgment of conviction controls even if there are subsequent sentencing proceedings." State v. Cann, 342 N.J. Super. 93, 102 (App. Div.), certif. denied, 170 N.J. 208 (2001). In any event, defendant did not file any motion raising these claims within five years of his June 6, 2008 sentencing for violation of probation. --------
Rule 3:22-12(a)(1) permits a late petition only if the petition "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 petition did not attempt to excuse its lateness.
Defendant's PCR counsel orally argued to Judge Leath that defendant's delay was due to excusable neglect because of his allegedly low I.Q. and because his alleged difficulty in obtaining pro se PCR forms while he was confined in an out-of-state federal facility. However, "[i]gnorance of the law and rules of court does not qualify as excusable neglect. Neither does defendant's purported low IQ or inability to speak or read English qualify." State v. Merola, 365 N.J. Super. 203, 218 (Law Div. 2002) (emphasis added), aff'd o.b., 365 N.J. Super. 82 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). "[N]o specific facts have been adduced with regard to defendant's mental state to show that [it] would have prevented him from pursuing his rights and remedies . . . within the five years provided by statute." State v. D.D.M., 140 N.J. 83, 100 (1995).
Defendant's conviction and incarceration in another jurisdiction also does not excuse him for failing to file a timely PCR petition. The option of seeking PCR relief "could have been pursued well before . . . and should have been known to defendant many years ago. He simply did not avail himself of it in a diligent fashion." State v. Milne, 178 N.J. 486, 494 (2004). Instead, defendant waited six years and four months. Thus, we agree with Judge Leath that defendant has failed to show excusable neglect.
Furthermore, defendant did not show a reasonable probability of a fundamental injustice. He claims that he was pressured to plead guilty, and that his attorney did not explore possible defenses with him. However, the only "pressure" defendant's certifications described was that "[m]y attorney stated that in order to avoid state prison time and get a probationary sentence I would have to plead guilty." That appears to be plausible advice, given that defendant faced two third-degree charges, he had seven juvenile adjudications, and the trial court found a risk he would commit another offense.
Defendant certified he told his trial counsel that "I did not know that the car I was driving was stolen," so trial counsel was aware of his defense. Defendant's certification claimed trial counsel "did not review the incident report" and explain to defendant "that the fact the keys were found with the vehicle and the fact that there was no mention of the steering column being damaged would have supported what I previously told" trial counsel. However, the police incident report simply stated that the Lincoln "was stolen out of East Orange with the keys." That did not show that defendant was unaware of the undisputed fact that the Lincoln was stolen, particularly as the report indicates that defendant drove the wrong way down the street, hit a parked car, and then attempted to exit before being apprehended.
In his plea colloquy, defendant swore that he "was aware at the time that [he] had possession of [the Lincoln] that it was a stolen vehicle." Defendant also swore he was "aware that the [Volkswagen] that [he] was riding in was a stolen car." Defendant further swore that no one was "forcing [him], making [him] plead guilty."
"Generally, representations made by a defendant at plea hearings concerning the voluntariness of the decision to plead, as well as any findings made by the trial court when accepting the plea, constitute a 'formidable barrier' which defendant must overcome[.]" State v. Simon, 161 N.J. 416, 444 (1999) (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136, 147 (1977)). "That is so because [defendant's] '[s]olemn declarations in open court carry a strong presumption of verity.'" Ibid. (quoting Blackledge, supra, 431 U.S. at 74, 97 S. Ct. at 1629, 52 L. Ed. 2d at 147). "The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible." Blackledge, supra, 431 U.S. at 74, 97 S. Ct. at 1629, 52 L. Ed. 2d at 147. Defendant's sworn statements belie any fundamental injustice.
Defendant also asserts that trial counsel failed to explore his mental difficulties. However, defendant certified that he "told [his] attorney about my mental difficulties." On PCR, defendant complained that trial counsel did not obtain his medical records from the Board of Education and the Family Court, but defendant has not shown what those records contain. "[W]hen a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Porter, 216 N.J. 343, 355 (2013) (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)). Defendant's remaining ineffectiveness claims were impermissibly "'vague, conclusory, or speculative.'" Ibid. (citation omitted).
Thus, defendant failed to show excusable neglect or fundamental injustice as required by Rule 3:22-12(a)(1). Therefore, he cannot excuse his failure to file his PCR petition within five years. See R. 3:22-12(c); R. 1:3-4(c). Accordingly, the PCR court properly denied his PCR petition. See State v. Brewster, 429 N.J. Super. 387 (App. Div. 2013).
IV.
We affirm the denial of defendant's petition for PCR. However, the State correctly notes that the June 27, 2007 judgment of conviction for Accusation No. 07-05-0810 lists defendant as having pled guilty to the original charge of third-degree receiving stolen property, and not the amended charge of fourth-degree joyriding, N.J.S.A. 2C:20-10. While the State suggests that the case be remanded solely for correction of the judgment of conviction, we find that additionally the sentence must be vacated.
At the July 27, 2007 sentencing, the trial court mistakenly believed that defendant had pled guilty to third-degree receiving stolen property, and sentenced him to three years' probation. At the June 6, 2008 violation hearing, the trial court similarly sentenced him to three years in prison.
"Except as otherwise provided, a person who has been convicted of" a crime of the fourth degree "may be sentenced to imprisonment" for "a specific term which shall be fixed by the court and shall not exceed 18 months." N.J.S.A. 2C:43-6(a)(4). Thus, defendant's sentence under Accusation No. 07-05-0810 is "an illegal sentence," because it "'exceeds the maximum penalty provided in the Code for a particular offense.'" State v. Acevedo, 205 N.J. 40, 45 (2011) (citation omitted).
"[A] truly 'illegal' sentence can be corrected 'at any time.'" Id. at 47 n.4 (quoting R. 3:21-10(b)(5)). Neither the State nor the defendant has filed a motion for a reduction or a change in sentence. However, "[t]he court may reduce or change a sentence, either on motion or on its own initiative[.]" R. 3:21-10(a). Accordingly, on Accusation No. 07-05-0810, we vacate defendant's sentence, and we remand to the Criminal Part for correction of the judgment of conviction to reflect that defendant actually pled guilty to the offense of fourth-degree joyriding, N.J.S.A. 2C:20-10, and for resentencing to a sentence appropriate for that offense. We do not retain jurisdiction.
Affirmed in part, vacated in part, and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION