Opinion
DOCKET NO. A-5937-13T4
01-09-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES R. SMITH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief). Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (Gretchen A. Pickering, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Yannotti and Gilson. On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 02-07-0494. Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief). Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (Gretchen A. Pickering, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant James R. Smith appeals from an order entered by the Law Division on July 25, 2014, which denied his petition for post-conviction relief (PCR). We reverse and remand for further proceedings.
We briefly summarize the relevant facts and procedural history. In 2001, a grand jury in Cape May County charged defendant with numerous offenses arising out of his abduction at knifepoint of two teenagers, T.R. and D.W., from the Ocean City boardwalk. Defendant led the two victims to a deserted area near the water, where he bound the male T.R. and forced the female D.W. to perform oral sex upon him. Defendant then drove D.W. from Ocean City to wooded areas in Cape May and Cumberland Counties, where he repeatedly sexually assaulted her.
In 2002, defendant was tried before a jury and found guilty of two counts of first-degree kidnapping, four counts of first-degree aggravated sexual assault, three counts of third-degree terroristic threats, two counts of possession of a knife for an unlawful purpose, and one count of fourth-degree unlawful possession of a knife. The court sentenced defendant to an aggregate term of 105 years, with a lengthy period of parole ineligibility. The trial court entered a judgment of conviction dated August 22, 2002.
On defendant's direct appeal, he raised the following arguments:
POINT I
DEFENDANT, JAMES SMITH'S, CONVICTION MUST BE REVERSED SINCE THE TRIAL [COURT] ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS HIS STATEMENT DEPRIVING DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL (U.S. CONST. AMEND, XIV; N.J. CONST. OF 1947, ART. I, 9, 10) (RAISED BELOW).
POINT II
THE DEFENDANT'S CONVICTION MUST BE REVERSED SINCE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL, PURSUANT TO U.S. CONSTITUTION, AMEND. VI.
* * *
POINT III
DEFENDANT'S CONVICTIONS ON COUNTS FIVE AND SIX AND/OR ON COUNTS NINE AND TEN MUST BE REVERSED SINCE THE [SUPERSEDING] INDICTMENT WAS INSUFFICIENT TO DETERMINE THE CRIME FOR WHICH THE JURY CONVICTED THE DEFENDANT, AND/OR ALTERNATIVELY THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS COUNTS FIVE OR SIX AT THE END OF THE STATE'S CASE BASED UPON THE ABOVE ARGUMENT AND FAILURE TO PROVIDE THE [SUPERSEDING] INDICTMENT UNTIL THE DAY OF TRIAL.
POINT IV
DEFENDANT, JAMES R. SMITH'S, CONVICTION SHOULD BE REVERSED SINCE THE TRIAL COURT'S CHARGE WAS INCORRECT, INADEQUATE AND CONFUSING THEREBY DEPRIVING DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL (U.S. CONST. AMEND. XIV; N.J. CONST. OF 1947, ART. I, 9, 10).
POINT V
DEFENDANT'S CONVICTION MUST BE REVERSED, SINCE THE TRIAL COURT ABUSED ITS DISCRETION IN TRANSPORTING THE JURY TO VIEW ONE OF THE SCENES OF THE ALLEGED CRIMES AND FAILING TO CHARGE THE JURY THAT WHAT THEY OBSERVED ON THE VIEWING WAS NOT EVIDENCE, BUT AN AID TO UNDERSTANDING EVIDENCE, AND BY DENYING THE DEFENSE REQUEST TO VIEW THE OTHER SCENES TO PUT THE VIEWING IN CONTEXT.
POINT VI
A. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS COUNT [THIRTEEN] AT THE END OF THE STATE'S CASE SINCE THE STATE FAILED TO DEMONSTRATE AN IMMEDIATE THREAT AND THE COURT FAILED TO CHARGE THE JURY ON THE LESSER INCLUDED OFFENSE OF HARASSMENT PURSUANT TO [N. J.S.A.] 2C:33-4.
B. IF IT WAS PROPER TO SUBMIT THE CHARGE CONTAINED IN COUNT THIRTEEN TO THE JURY, DEFENSE COUNSEL SHOULD HAVE REQUESTED, OR THE COURT SHOULD HAVE SUA SPONTE CHARGED THE LESSER INCLUDED OFFENSE OF HARASSMENT PURSUANT TO [N. J.S.A.] 2C:33-4.
POINT VII
THE MATTER MUST BE REMANDED TO THE SENTENCING COURT FOR CLARIFICATION REGARDING THE SENTENCE IMPOSED.
POINT VIII
THE SENTENCE IMPOSED ON DEFENDANT IS EXCESSIVE.
We affirmed defendant's convictions and the sentences imposed, but remanded the matter to the trial court to clarify the judgment of conviction with regard to the periods of parole ineligibility. State v. Smith, Docket No. A-1382-02 (App. Div. Oct. 5, 2004) (slip op. at 30). Defendant then filed a petition for certification with the Supreme Court. The Court denied the petition on January 26, 2005. State v. Smith, 182 N.J. 429 (2005).
On March 7, 2005, defendant filed a petition for PCR. The trial court entered an order dated April 24, 2006, which stated that the petition was withdrawn with prejudice.
In May 2008, defendant submitted a pro se motion to reproduce copies of the entire trial court record. It appears that defendant intended to file an application for a change of custody to the Adult Diagnostic and Treatment Center. The trial court determined that the trial record was not necessary for that purpose and, in any event, such an application would be without merit.
Defendant appealed, and we affirmed the trial court's order. State v. Smith, No. A-5980-07 (App. Div. Aug. 7, 2009). Defendant filed a petition for certification with our Supreme Court. The Court denied defendant's petition. State v. Smith, 200 N.J. 505 (2009). The United States Supreme Court later denied defendant's petition for a writ of certiorari. Smith v. New Jersey, 599 U.S. 977, 130 S. Ct. 1695, 176 L. Ed. 2d 189 (2010).
In March 2010, defendant filed a petition for a writ of habeas corpus with the United States District Court for the District of New Jersey. The District Court addressed the matter in an opinion filed on October 6, 2010. Smith v. Ricci, No. 10-1398, 2011 U.S. Dist. LEXIS 106801 (D.N.J. Oct. 6, 2010).
The District Court noted that under 28 U.S.C.A. § 2244(d)(1)(A), defendant's judgment of conviction became final ninety days after our Supreme Court denied certification on January 26, 2005, or April 26, 2005. Therefore, 28 U.S.C.A. § 2244(d)(1)(A) required that defendant file his habeas petition within one year after his judgment of conviction became final, although the limitations period could have been tolled if defendant filed a PCR petition within that one-year period.
The District Court noted that defendant had filed his state PCR petition on March 7, 2005, which tolled the time for filing the habeas petition. However, the statutory tolling period ended on April 24, 2006, when defendant withdrew the petition. Defendant did not file his habeas petition until March 10, 2010, more than three years after the limitations period expired. Defendant's habeas petition was dismissed.
Thereafter, the District Court determined that a certificate of appealability should not be issued. Smith v. Ricci, No. 10-1398, 2011 U.S. Dist. LEXIS (D.N.J. May 12, 2011). The Supreme Court of the United States denied defendant's petition for a writ of certiorari on January 9, 2012. Smith v. Ricci, 565 U.S. 1122, 132 S. Ct. 1023, 181 L. Ed. 2d 754 (2012).
On December 20, 2013, defendant filed a pro se petition for PCR in the Law Division, alleging, among other things, that he was denied the effective assistance of counsel, the trial court erred in various respects, and the State had withheld certain exculpatory evidence. Defendant sought an evidentiary hearing on the petition.
On July 25, 2014, the PCR court entered an order denying the petition. The order stated that the petition was defendant's "second or subsequent petition." The order also stated that the petition was denied based on the court's April 24, 2006 order, which stated that defendant's first PCR petition had been withdrawn with prejudice.
This appeal followed. On appeal, defendant raises the following single argument:
THE JUDGE BELOW ERRED IN DISMISSING THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF, AS IT WAS DEFENDANT'S FIRST POST-CONVICTION RELIEF MOTION, HIS PREVIOUSLY FILED MOTION HAVING BEEN WITHDRAWN WITH PREJUDICE WITHOUT BEING HEARD ON THE MERITS AS REQUIRED BY COURT RULES AND LEGAL PRECEDENT.
More specifically, defendant argues that because his first PCR petition was withdrawn in 2006 and never decided on the merits, the petition filed in 2013 should be considered his first PCR petition. He contends the Law Division erred by dismissing the petition "out of hand" without any statement of reasons.
We are constrained to reverse the order denying defendant's PCR petition and remand for further proceedings. Here, the PCR court erred by treating the petition as "a second or subsequent petition" under Rule 3:22-4(b). As noted, defendant filed a PCR petition on March 7, 2005, but the petition was withdrawn "with prejudice" even though the court never ruled on the merits of the claims raised. See State v. Odom, 113 N.J. Super. 186, 189 (App. Div. 1971) (noting that although defendant brought an earlier PCR petition, this was not a sufficient reason to deny the subsequent petition unless there was a prior adjudication on the merits).
Thus, defendant's 2013 PCR petition should be viewed as his first petition, which he admits was filed well beyond the time prescribed by Rule 3:22-12(a)(1). The rule requires that the first PCR petition be filed no later than five years after the date upon which the judgment of conviction was entered. Ibid. The five-year period is neither stayed nor tolled by appellate or other review proceedings. State v. Dillard, 208 N.J. Super. 15, 19 (App. Div.), certif. denied, 105 N.J. 527 (1986). Furthermore, federal habeas corpus proceedings do not toll the time for filing the PCR petition. State v. Milne, 178 N.J. 486, 494 (2004).
Where, however, a PCR petition is filed beyond the five-year limitations period, the court may consider the petition if 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." R. 3:22-12(a)(1).
On remand, the PCR court shall appoint counsel to represent defendant, R. 3:22-6(a), and afford counsel time in which to file an amended petition. R. 3:22-9. The amended petition must include facts showing that defendant's failure to file a timely petition was due to "excusable neglect." The amended petition must also address whether, if defendant's factual claims are found to be true, enforcement of the time bar "would result in a fundamental injustice." The PCR court will then determine whether the time bar should be enforced and, if not, the court should address the merits of defendant's claims.
Reversed and remanded to the trial court for further proceedings in conformity with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION