Opinion
DOCKET NO. A-3891-09T4
05-03-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LEROY MCLAUREN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the briefs). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Waugh.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 87-06-2615.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the briefs).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Leroy McLauren appeals from the Law Division's March 23, 2010 order dismissing his petition for post-conviction relief (PCR). We affirm.
I.
We discern the following facts and procedural history from the record on appeal.
After a waiver to adult court, McLauren was indicted for first-degree murder, contrary to N.J.S.A. 2C:11-3(a)(1) and (2) (count one); first-degree felony murder, contrary to N.J.S.A. 2C:11-3(a)(3) (count two); first-degree robbery, contrary to N.J.S.A. 2C:15-1 (count three); third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(b) (count four); and second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a) (count five). The charges arose out of the shooting death of a fifteen-year old boy on January 7, 1987.
Following an unsuccessful motion to suppress a handgun found in McLauren's jacket on the day following the shooting, McLauren was tried before a jury in December 1987. The jury found him guilty of aggravated manslaughter, N.J.S.A. 2C:11-4, as a lesser included offense of purposeful or knowing murder, as well as the remaining charges. In March 1988, McLauren was sentenced to a prison term of thirty years without parole. His scheduled release date is in January 2017.
McLauren filed a direct appeal, arguing that the trial judge had erred in denying his motion to suppress and in refusing to charge defense of others. N.J.S.A. 2C:3-5. We affirmed on February 13, 1990. The Supreme Court denied McLauren's petition for certification. State v. McLauren, 122 N.J. 160 (1990).
In December 2009, McLauren filed a petition for PCR. The petition was based on allegations of ineffective assistance of trial and appellate counsel with respect to (1) failure to advise him that he could testify at the waiver hearing, (2) failure to request a charge on the elements of criminal attempt, (3) failure to raise on appeal the inadmissibility of his statement to the police, and (4) cumulative trial errors. The petition was heard on March 23, 2010. Following oral argument, the PCR judge dismissed the petition as time barred. He found no basis to waive the time limits of Rule 3:22-12 based on excusable neglect. This appeal followed.
II.
McLauren raises the following issues on appeal through designated counsel:
The Court should reverse the denial of defendant's petition for post-convictionIn a supplemental pro se brief, he raises the following issues:
relief and remand this matter for an evidentiary hearing on defendant's claims.
1. Defendant's petition was not time barred.
2. Defendant established at least prima facie evidence of ineffective assistance of counsel.
3. At the very least, defendant's ineffective assistance claims warranted an evidentiary hearing in the court below.
POINT I: THE COURT BELOW ERRED WHEN IT DENIED DEFENDANT'S PETITION FOR POST CONVICTION RELIEF FOR BEING TIME BARRED WHEN THE ALLEGATIONS IN DEFENDANT'S PETITION FOR POST CONVICTION RELIEF ESTABLISHED SUFFICIENT CLAIMS TO REQUIRE RELAXATION OF THE BAR UNDER R. 3:22-12.
POINT II: A FULL EVIDENTIARY HEARING IS WARRANTED BECAUSE DEFENDANT HAS MADE A PRIMA FACIE SHOWING THAT THE PETITION FOR PCR WAS FILED OUT OF TIME DUE TO COUNSEL'S ABANDONMENT OF THIS CASE.
POINT III: THE COURT'S DECISION IN STATE V. GON[Z]ALEZ, DOES NOT CONSTITUTE A NEW RULE OF LAW AND SHOULD BE APPLIED RETROACTIVELY TO DEFENDANT'S CASE ON COLLATERAL REVIEW.
POINT IV: THE TRIAL JUDGE FAILED TO DEFINE THE ELEMENTS OF A CRIMINAL ATTEMPT IN HIS INSTRUCTION ON ROBBERY; THUS, PETITIONER'S ROBBERY AND FELONY MURDER CONVICTIONS MUST BE REVERSED BECAUSE THERE WAS NO JURY FINDING ON THE ELEMENTS OF ATTEMPT. U.S. CONST. AMENDS. V, VI, XIV; AND N.J. CONST. (1947) ART. I, PAR, 1, 9, 10.
POINT V: THE FAILURE OF DEFENSE COUNSEL TO ADVISE PETITIONER OF HIS CONSTITUTIONAL RIGHT TO TESTIFY ON HIS OWN BEHALF AT THE WAIVER HEARING REQUIRES THAT THE WAIVER RULING BE VACATED AND A NEW HEARING HELD. U.S. CONST. AMENDS. V, VI, XIV; AND N.J. CONST. (1947) ART. I, PARS. 1, 10.
POINT VI: PETITIONER'S STATEMENT WAS INADMISSIBLE BECAUSE IT WAS NOT VOLUNTARILY, KNOWINGLY, AND INTELLIGENTLY GIVEN IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND THE COMMON LAW OF NEW JERSEY.
POINT VII: THE TRIAL COURT ERRED IN ADMITTING CERTAIN HIGHLY PREJUDICIAL PRIOR ACTS AND IN FAILING TO GIVE ANY INSTRUCTION TO THE JURY CONCERNING THE USE OF SUCH EVIDENCE AS REQUIRED BY N.J.R.E. 404. U.S. CONST. AMENDS. V, VI, XIV; AND N.J. CONST. (1947) ART. 1, PAR, 1, 9, 10.
POINT [VIII]: THE PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS. U.S. CONST. AMENDS, VI, XIV; AND N.J. CONST. (1947) ART. I, PAR, 1, 9, 10.
"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992) (citation omitted). Under Rule 3:22-2, there are four grounds for PCR:
(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;
(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;
(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . [;]
(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.
"A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459 (citations omitted). "To sustain that burden, specific facts" which "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).
Claims of ineffective assistance of counsel are well suited for post-conviction review, and petitioners are rarely barred from raising such claims in petitions for PCR. R. 3:22-4(a); Preciose, supra, 129 N.J. at 459-60. Merely raising such a claim does not, however, entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, the decision to hold an evidentiary hearing on a defendant's ineffective assistance of counsel claim is within the trial court's discretion. Ibid.
Trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462-64. In determining whether a prima facie claim has been established, the facts should be viewed "in the light most favorable to a defendant." Id. at 462-63.
"To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate [a] reasonable likelihood of succe[ss] under the test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) . . . ." Preciose, supra, 129 N.J. at 463. Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The two-part test set forth in Strickland was adopted by this State in State v. Fritz, 105 N.J. 42, 58 (1987).
In demonstrating that counsel's performance was deficient under the first prong of Strickland, defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Further, because prejudice is not presumed, ibid., a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).
Rule 3:22-12 provides a time limit for the first filing of a PCR petition. It specifies that "no petition shall be filed pursuant to this rule more than [five] years after the date of entry . . . 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." R. 3:22-12(a)(1). Lack of "sophistication in the law does not satisfy the exceptional circumstances required" to constitute excusable neglect. State v. Murray, 162 N.J. 240, 246 (2000) (citations omitted).
The five-year time bar established by Rule 3:22-12(a)(1) is relaxable only in "exceptional circumstances." State v. Afanador, 151 N.J. 41, 52 (1997). In determining whether or not exceptional circumstances exist, courts 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.'" Ibid. (citing Mitchell, supra, 126 N.J. at 580). Without "compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay." Ibid. (citing Mitchell, supra, 126 N.J. at 580).
III.
Having reviewed the arguments raised by McLauren in light of the applicable law and the record before us, we find them to be without merit and not warranting extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.
Because Rule 3:22-12 requires the filing of the first PCR petition within five years of the judgment of conviction, McLauren's petition should have been filed no later than March 1993. It was not filed until more than sixteen years later.
By way of excusable neglect, McLauren points to difficulty with two retained counsel. The first attorney was retained in late 1990, and was paid a retainer to file a PCR petition. That attorney was eventually suspended from practice for, among other things, failure to act with reasonable diligence. In re Moorman, 135 N.J. 1 (1994). The retainer was eventually returned.
According to correspondence in the appendix, McLauren retained another attorney in March 1994, and appears to have paid that attorney a retainer. Between March 1994 and February 2002, McLauren corresponded with the second attorney or his associate, during which time McLauren expressed frustration that no action had been taken. We note that, in 1999, he informed the attorney that he had prepared a PCR motion and brief himself. Significantly for the purposes of this appeal, McLauren has provided no explanation for the delay between his last correspondence with the second attorney in February 2002 and the filing of his petition in December 2009, a period in excess of seven years.
Our review of the record satisfies us that the PCR judge did not abuse his discretion in determining that McLauren had failed to prove exceptional circumstances justifying the filing of his petition sixteen years late. While it appears that he was taken advantage of by his first two attorneys, McLauren has no explanation for the subsequent seven year delay, which itself exceeds the five year period during which an initial PCR petition must be filed. Nor is there any explanation for his failure to file on his own the documents he had prepared in 1999 or to seek representation through appointment of the Public Defender. The prejudice to the State in attempting to retry a case in which the underlying events occurred twenty-five years ago is self-evident. Finally, our review of the record does not convince us that there was an "injustice" with respect to McLauren's conviction. R. 3:22-12.
Affirmed.