Opinion
DOCKET NO. A-2561-10T2
08-24-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN HILL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Espinosa.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 99-10-3333.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.
A Camden County grand jury returned a one-count indictment in 1999 that charged defendant with the unlawful possession of "a controlled dangerous substance, namely; glucophage and/or cocaine[.]" Defendant pled guilty to this count pursuant to a plea agreement in which the prosecutor agreed to recommend a sentence of one year's probation with no condition of custody and to recommend that defendant be released on his own recognizance. Defendant agreed to waive his right to appeal.
Although glucophage is a prescription medicine, it is not listed on the schedules of controlled dangerous substances, N.J.S.A. 24:21-4. Therefore, it is not unlawful to possess glucophage.
In providing a factual basis for his guilty plea, defendant acknowledged possession of glucophage without a prescription. The prosecutor then stated that defendant also had a crack pipe that had a trace amount of cocaine. The court asked defendant if that was true and he replied, "Yes." When asked if he was guilty of "this offense[,]" defendant again stated, "Yes."
On February 2, 2001, defendant was sentenced to one year's probation and appropriate fines and penalties pursuant to the plea agreement. Defendant violated the conditions of his probation within two weeks, admitting to cocaine use at a scheduled office visit on February 13, 2001 and additional times thereafter, failing to remain arrest-free and failing to comply with other conditions of probation. A petition for violation of probation was filed against him on April 20, 2001. Defendant pled guilty to violating probation and was sentenced to four years' imprisonment on February 15, 2002. The court explicitly advised defendant of his right to appeal. However, defendant did not file a direct appeal from his conviction and sentence.
Defendant filed a PCR petition on April 9, 2009. In his petition and in the brief submitted on his behalf, it was argued that defendant was denied the effective assistance of counsel because his counsel advised him to plead guilty to something that was not illegal. He argues that, because he pled guilty to something that was not a crime under N.J.S.A. 2C:35-10(a)(1), the factual basis he provided was inadequate and his sentence was illegal.
The PCR court heard argument on the petition and denied defendant's petition on July 19, 2010, setting forth its reasons in a written decision.
Defendant presents the following issues for our consideration in his appeal:
POINT I
SINCE THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF ESTABLISHED A VIOLATION OF THE DEFENDANT'S SIXTH AND FOURTEENTH AMENDMENT RIGHTS; SINCE THE DEFENDANT WAS UNABLE TO FILE A DIRECT APPEAL AS
A CONDITION OF THE PLEA; AND SINCE THE SENTENCE IMPOSED WAS ILLEGAL; THE PCR COURT MISAPPLIED ITS DISCRETION IN APPLYING THE PROCEDURAL BARS OF RULE 3:22-4 AND RULE 3:22-12 IN DENYING POST-CONVICTION RELIEF.
POINT II
SINCE THE DEFENDANT ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE THAT TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ TEST, THE PCR COURT ERRED IN DENYING POST-CONVICTION RELIEF.
POINT III
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
POINT IV
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.
(A) THE INDICTMENT WAS DUPLICITOUS.
(B) THE INDICTMENT WAS FAULTY BECAUSE POSSESSION OF GLUCOPHAGE IS NOT A CRIMINAL OFFENSE.
After reviewing these arguments in light of the applicable legal principles, we are satisfied that none of them have any merit.
As a preliminary matter, the procedural bars regarding the both the grounds and the timing of a PCR petition apply to defendant's petition.
Because defendant's petition was filed before the amendments to the rule became effective on February 1, 2010, we cite the rule applicable to his petition.
Any ground for relief not raised in a prior proceeding under this rule, or in the proceedings resulting in the conviction, or in a post-conviction proceeding brought and decided prior to the adoption of this rule, or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds (a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.
Defendant argues that he should be relieved of this procedural bar because its enforcement in this case would result in "fundamental injustice" and the denial of relief would be contrary to the federal and state constitutions.
In State v. Martini, 187 N.J. 469, 481 (2006), cert. denied, 549 U.S. 1223, 127 S. Ct. 1285, 167 L. Ed. 2d 104 (2007), the Supreme Court observed that "there is no bright-line test to determine when a court should apply the fundamental- injustice exception" and quoted the following applicable principles:
[i]n defining fundamental injustice, the courts will look to whether the judicial system has provided the defendant with fair proceedings leading to a just outcome. "Fundamental injustice" will be found if the prosecution or the judiciary abused the process under which the defendant was convicted or, absent conscious abuse, if inadvertent errors mistakenly impacted a determination of guilt or otherwise "wrought a miscarriage of justice for the individual defendant." The standard goes beyond constitutional infringements to any circumstances deemed "unjust." Although a petitioner would not have to prove that the issue of concern cost him the case, "to establish injustice there should at least be some showing that [the alleged violation] played a role in the determination of guilt. To conclude otherwise would exalt form over substance."
[Id. at 481-82 (quoting State v. Mitchell, 126 N.J. 565, 587 (1992)).]
Defendant argues that it was impossible for him to raise the issues on direct appeal because he waived his right to file a direct appeal pursuant to the plea agreement. Because the precise issue is not before us, we express no opinion as to whether a defendant may be required to abandon his right to appeal his conviction or sentence as part of a plea agreement. However, the plea agreement here did not prohibit defendant from exercising his right to an appeal. The trial court explained the operation of this waiver to defendant at sentencing:
Despite the fact that you have waived your right to appeal, you have a right to appeal, but you must do so within 45 days. If you wish to take an appeal and you wish an attorney to help you appeal, and cannot afford the services of an attorney, upon application, an attorney will be appointed to represent you at no charge.
However, should you take an appeal, the State can withdraw from this plea agreement and reinstate any of the dismissed charges; do you understand that also? Do you have any questions?
Defendant replied that he had no questions.
The decision to forego an appeal here can fairly be viewed as a decision by defendant to retain the benefit of the plea agreement, which called for a one-year non-custodial probationary term. Notably, he violated probation within two weeks of his sentence and committed various other violations before the expiration of the forty-five day period in which he could have filed a direct appeal. Faced with the prospect of having his probation violated, he had little to risk if he had elected to file a direct appeal on a timely basis.
Moreover, we are satisfied that the arguments defendant states he would have made on appeal lack merit. The crux of all his arguments is that glucophage is not a controlled dangerous substance. His position would be vastly different if he pled guilty to a single count that charged him with possession of glucophage. However, he pled guilty to a count that charged him with possession of both glucophage and cocaine. He provided a factual basis for the unlawful possession of cocaine when he entered his guilty plea and does not deny his guilt for that charge. The inclusion of glucophage in the count, the plea colloquy and the sentence is essentially a nullity and it cannot seriously be argued that the one-year non-custodial probationary term was enhanced because glucophage was included. We are satisfied that application of the procedural bar of Rule 3:22-4 will not result in any fundamental injustice or violation of defendant's constitutional rights.
Defendant's petition was filed more than seven years after his conviction for violation of probation and more than eight years after his conviction for the underlying offense. His petition is, therefore, also barred by Rule 3:22-12(a), which barred the filing of PCR petitions more than five years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.
Because plaintiff's petition was filed before the effective date of the amendments to this rule, we cite the rule as it existed at the time of his petition.
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Thus, to be relieved of the time bar, defendant must allege facts that show his delay was due to excusable neglect. He has failed to do so.
"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). 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." Mitchell, supra, 126 N.J. at 576.
Defendant relies upon his waiver of a direct appeal to support his claim of "excusable neglect." As noted, he was not prohibited from filing a direct appeal and, given his violations of probation, had little to lose by filing a timely appeal. We are satisfied that he has failed to show sufficient facts to demonstrate excusable neglect. Because the procedural bars were properly applied, we need not address defendant's claims of ineffective assistance of counsel.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION