Opinion
DOCKET NO. A-4333-13T2
06-21-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROY D. SAVAGE, a/k/a TALUB MOHUWA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele C. Buckley, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Ostrer. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 90-08-3865. Joseph E. Krakora, Public Defender, attorney for appellant (Michele C. Buckley, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Roy Savage, now known as Talub Mohuwa, appeals from the March 4, 2014 Law Division order denying his petition for post-conviction relief (PCR). We affirm.
Roy Savage's application to change his name to Talub Mohuwa was granted on April 23, 2010. --------
Having unsuccessfully challenged his competence to stand trial, defendant was convicted by a jury in 1991 when retried for the murders of two women. He was sentenced on November 21, 1991, on two counts of first-degree murder, N.J.S.A. 2C:11-3, to two consecutive life sentences, and on one count of third-degree hindering, N.J.S.A. 2C:29-3, to a concurrent five-year term. We affirmed his convictions and sentences and the Supreme Court denied defendant's petition for certification. State v. Savage, No. A-2282-91, (App. Div. July 28, 1994), certif. denied, 138 N.J. 271 (1994).
At trial, defendant raised the insanity defense. His experts testified that defendant suffered from paranoid schizophrenia beginning in 1975. The State's expert disputed the claim, interpreting defendant's 1975 hospitalization, while he was serving in the Navy, as the product of an adjustment disorder. During the trial, defendant's attorney stated outside of the presence of the jury and on the record, that after consultation with his client, defendant "[did] not wish to testify." Savage, supra, slip op. at 16.
Years after his incarceration, defendant pursued benefits from the Veteran's Administration for post-traumatic stress disorder (PTSD), which he claimed triggered his mental illness. In 2009, he was granted a seventy percent disability benefit. Defendant, who had filed a pro se brief in support of his direct appeal in July 1994, also filed a PCR petition pro se in 1997. That petition was "[d]ismissed without prejudice" following defendant's request for a voluntary dismissal; the reasons for the withdrawal are not included in this record.
Defendant filed this application on May 23, 2011. Attached were two unsigned, undated, typewritten letters from two State witnesses in which they seemingly contradicted their trial testimony that defendant did not appear delusional prior to the murders. They had been extensively cross-examined on the point.
In addition to finding that Rule 3:22-12 barred PCR relief more than five years after the entry of the judgment of conviction, absent facts demonstrating that the delay was due to excusable neglect, the judge also briefly considered each of defendant's numerous points. He found none had merit, either because they were procedurally barred as having been previously addressed on direct appeal, or inherently flawed.
On appeal, defendant raises the following points:
POINT I
THE PCR COURT IMPROPERLY DENIED MR. SAVAGE'S PETITION FOR POST-CONVICTION RELIEF BASED UPON THE CLAIM THAT IT WAS PROCEDURALLY TIME BARRED UNDER RULE 3:22-12, WHERE MR. SAVAGE ESTABLISHED THE EXCUSABLE NEGLECT EXCEPTION TO THE RULE.
POINT II
THE PCR COURT IMPROPERLY DENIED MR. SAVAGE'S PETITION FOR POST-CONVICTION RELIEF WITHOUT CONDUCTING AN EVIDENTIARY HEARING, WHERE MR. SAVAGE HAD ESTABLISHED A REASONABLE LIKELIHOOD THAT HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL WOULD SUCCEED ON THE MERITS.
A. Counsel failed to advise Mr. Savage of his Constitutional right to testify on his own behalf.
B. Counsel failed to research Mr. Savage's military history and subsequent diagnosis of post-traumatic stress disorder as it related to his diagnosis of paranoid Schizophrenia.
C. Counsel failed to investigate Mr. Savage's case, including failing to interview pre-trial State and Defense witnesses.
Additionally, in his pro se submission, defendant raises the following:
POINT ONE
THE TRIAL COURT ERRED BY FAILING TO DETERMINE WHETHER THE FACTS OF THIS CASE PRESENT[] EXCUSABLE NEGLECT OR EXCEPTIONAL CIRCUMSTANCE REQUIRING THE RELAXING OF THE 5-YEAR TIME LIMITATION OF A PCR PETITION.
A. Counsel failed to advise the defendant of his constitutional right to testify on his own behalf.
B. Counsel failed to investigate Mr. Savage's case, including failing to interview pre-trial State and defense witnesses.
Rule 3:22-12 bars consideration of PCR petitions filed beyond five years after the entry of the judgment of conviction. An exception may be made when the delay is attributable to excusable neglect and "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[.]" R. 3:22-12(a)(1). The grounds for such an exception have not been established here.
Defendant's mental illness, as alleged generally in his moving papers, and his treatment while in custody, including forced medication, do not equate to excusable neglect. As our Supreme Court said in State v. D.D.M., 140 N.J. 83, 100 (1995), a defendant must allege "specific facts . . . to show that his psychological treatment would have prevented him from pursuing his rights and remedies . . . within the five years[.]" Defendant has not done so here.
In fact, as the Law Division judge noted in his decision, defendant, despite his mental health, was able to file a pro se brief in July 1994 in support of his direct appeal. That filing was well within the five-year period after sentence. Defendant asserted, according to the judge, that he was unaware of the existence of PCR until 1995, yet that left unexplained the delay between the dismissal of the 1997 petition and this filing in 2011.
Additionally, defendant obtained Veteran's Administration benefits in 2009, a process uniquely challenging for a prisoner who has to marshal records and correspond with Veteran's Administration personnel under the difficult circumstances. Defendant's ability to make himself heard by the courts and an administrative agency, even while in custody, belies his claim that his mental health status constitutes excusable neglect.
In his pro se brief, defendant cites to Rule 1:1-2 in support of his argument that the time bar should be relaxed. But Rule 3:22-12(c) itself states the "time limitation shall not be relaxed except as provided herein." The time bar will be applied except where excusable neglect is found and a fundamental injustice would otherwise result.
Although we consider all of defendant's points to be so lacking in merit as to not warrant much discussion in a written opinion, Rule 2:11-3(e)(2), we briefly address them. We do so in the interest of completeness, despite our conclusion that the PCR petition is time-barred.
Defendant tethers his PCR application to claims of ineffective assistance of counsel. It is well-established that in order to prevail, a defendant must establish substandard professional assistance and ultimate prejudice as a result of that substandard representation. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The Strickland standard was adopted by our court in State v. Fritz, 105 N.J. 42, 58 (1987).
Defendant asserts in his counseled and uncounseled briefs that he was not advised of his constitutional right to testify. This claim is contradicted by the record. Furthermore, the contention was previously addressed on the direct appeal and previously found to lack merit. That ruling is conclusive. See R. 3:22-5.
Defendant also asserts that counsel was ineffective by virtue of failing to "research" his military history and subsequent diagnosis. He claims that investigation would have garnered additional support for his experts' opinions that his mental illness had existed since 1975, prior to the murders, and would have refuted the testimony of the State's expert to the effect that his 1975 hospitalization was not the result of schizophrenia.
It is clear, however, that defendant presented evidence on the point to the jury, and that the jury remained unconvinced. Therefore, trial counsel's failure to obtain defendant's military records, if indeed such was the case, did not prejudice defendant. The information would have been merely cumulative.
Defendant also argues based on the two unsigned, undated, and typewritten letters or statements he attached to his petition, that his attorney failed to interview witnesses. This is no more than an unsubstantiated bare allegation, insufficient to establish a prima facie case. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION