Opinion
DOCKET NO. A-1705-13T4
10-29-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RILEY WALKER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Rasheedah R. Terry, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-03-0941. Joseph E. Krakora, Public Defender, attorney for appellant (Rasheedah R. Terry, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Riley Walker appeals from the denial of his petition for post-conviction relief (PCR) filed more than seven years after entry of his convictions. Because we agree with the trial court that the petition was procedurally barred and, in any event, without merit, we affirm.
One October day in 2001, defendant flagged down his ex-girlfriend in Newark and asked her for a ride. Once defendant entered the car, the two got into an argument. Defendant physically forced the woman out of the car and then drove after her as she tried to run away. He drove up onto the sidewalk, pinned her against a building and repeatedly rammed her with the car, breaking her hip, both her wrists and severing one of her legs.
Pursuant to an agreement negotiated over several months, defendant pled guilty in 2003 to carjacking, N.J.S.A. 2C:15-2, and attempted murder, N.J.S.A. 2C:11-3 and 2C:5-1, in exchange for the dismissal of the eleven other counts of the indictment and the State's recommendation of a twenty-year term of imprisonment, subject to a seventeen-year period of parole ineligibility and a five-year period of parole supervision as required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He was sentenced in accordance with the agreement.
We heard defendant's appeal of his sentence on a sentencing calendar in 2005. In addition to arguing his sentence was excessive, defendant's counsel argued, without having discussed the issue with defendant, that he was not fully informed about the penal consequences of his guilty plea because the court did not mention or explain the significance of the NERA supervision term. State v. Freudenberger, 358 N.J. Super. 162, 169-70 (App. Div. 2003). We affirmed defendant's sentence but remanded pursuant to Freudenberger, and State v. Johnson, 182 N.J. 232, 242 n.3 (2005) (disapproving Freudenberger to the extent that this court permitted withdrawal of a plea without a showing that information about NERA parole was material), to allow defendant to make a motion to withdraw his plea upon showing how the omission of information about the NERA supervision term materially affected his decision to plead guilty.
Counsel specifically noted on the record that she had not discussed the issue with defendant. She represented to the court that she could argue it without defendant's authorization because it was "risk-free" to defendant, meaning that defendant, after being advised of the issue, could choose on remand whether he wished to move to be relieved of his plea on that basis.
On the day appointed for the Freudenberger hearing in September 2006, defendant's counsel sought an adjournment to allow him to obtain a report from a defense psychiatrist as to whether the medications defendant had been taking had affected his ability to understand the plea, including the NERA term, and to determine whether he was now competent to make a decision to seek to withdraw the plea. Counsel also sought to have defendant evaluated for the purpose of ascertaining the viability of a defense based on diminished capacity in order to capably advise defendant on the wisdom of withdrawing his plea.
Counsel explained that defendant had contacted him after reviewing his brief on the Freudenberger claim to advise he had omitted an argument. Defendant wanted to argue that he was "incoherent" at the time of the plea because of the medication he was taking, and thus his plea was not voluntary and knowing. Counsel told the court that defendant was "seizing upon a report" by Dr. Ryno Jackson prepared at the request of defense counsel prior to defendant's plea, but provided to defendant only after the plea was entered, stating defendant appeared to respond to perceived threats by "slip[ping] into psychoses" and suggesting defendant "should be further evaluated at the Forensic Hospital at Trenton for stabilization on medication, and complete diagnosis."
The court adjourned the hearing to allow defendant to obtain an opinion as to whether defendant's plea was knowing and voluntary, whether he was capable of understanding the consequences of the plea, and whether defendant was competent to make a decision to proceed with the application knowing that success could lead to a trial on the merits and an even greater sentence. The court, however, denied an adjournment for the purpose of allowing defendant to obtain a report as to whether he understood the nature of his actions at the time of the crimes, finding it exceeded the scope of the remand.
Defendant filed additional submissions, but it does not appear as if any expert report was ever filed. The same judge who had presided over defendant's plea and allowed the adjournment of the Freudenberger hearing issued a comprehensive written decision on June 11, 2008 denying defendant's motion to set aside the plea on the two points on which the application rested, that defendant was not adequately advised of the NERA supervision term and that the medications he was taking at the time of the plea rendered the plea less than knowing and voluntary.
The court's written opinion notes that defendant failed to submit "any evidence that would substantiate claims of mental incompetence. In fact, the defense has only supplied the [c]ourt with prescriptions and copies of websites that offer information of the medication prescribed." --------
Specifically, the judge noted defendant had signed plea forms alerting him to the parole supervision term, and that he had advised defendant at sentencing that he would be under parole supervision for five years, thus distinguishing the case from Johnson, supra, 182 N.J. at 235, a case in which neither the trial court nor the plea form provided any information about NERA parole, and from Freudenberger, supra, 358 N.J. Super. at 166-67, a case in which the defendant had not marked the plea form to indicate her understanding of NERA parole.
As to defendant's claim regarding his competence to enter the plea, the judge explained that
[t]he crux of the addendum to the Defendant's motion to withdraw [his] plea is that he was under the influence of several psychiatric medications at the time of his guilty plea. He contends that due to his reliance on the medication at the time of his plea, he pled without an adequate understanding of the law, the facts of his case, and his plea agreement. Accordingly, the Defendant contends that his plea was not entered voluntarily and cannot stand without being unconstitutional.
The judge rejected the claim as without merit, noting that defendant was deemed competent to stand trial at an evaluation conducted shortly before entering his plea, when he had orders for the same medications he was taking at the time of the plea hearing, and that defendant was "lucid, coherent, and answered questions in a straightforward manner" during his plea colloquy. The judge concluded that "defendant has not provided the Court with any evidence that would substantiate claims of mental incompetence."
The court, although thoroughly addressing defendant's claims on remand, treated them as if they were raised in a PCR proceeding instead of as a result of a remand order from this court. Defendant's counsel noted the error to defendant in a letter he sent in July 2008, transmitting the court's decision. He advised defendant to raise the error on appeal along with the denial of an evidentiary hearing, denial of the Freudenberger claim, and "the denial of the plea while under the influence of medications claim." He also provided the date by which defendant needed to file his appeal and the name and address of the person in the public defender's office to whom he could direct a request for the appointment of a public defender.
Defendant filed an appeal from the remand, which we again heard on a sentencing calendar. Counsel argued the court did not take testimony or make any finding as to the materiality of the omission regarding defendant's NERA supervision term. We affirmed, noting that we were satisfied the Law Division adequately addressed the issues on remand. The Supreme Court denied defendant's petition for certification. State v. Walker, 200 N.J. 549 (2009).
Defendant did not file his PCR petition until July 2010, more than seven months following exhaustion of his direct appeal and more than seven years following his convictions. The court dismissed the petition without prejudice in August 2011 for failure to prosecute, with the proviso it could be refiled nunc pro tunc upon the filing of a brief. Defendant filed a brief in support of his petition in April 2012 alleging ineffective assistance of counsel warranting an evidentiary hearing.
The trial court deemed the petition time barred and without merit. The judge determined defendant's claim of excusable neglect as a result of the remand court's treatment of the remand as a PCR proceeding "doesn't square up." He found no excuse for the failure to file a timely petition and noted defendant's motion to rescind his plea on the basis of the medication he was taking at that time was thoroughly explored and rejected on remand.
Proceeding to consider the claim on the merits, the judge found that defendant could not establish that his counsel's performance had been deficient under the test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). He noted that defendant's very favorable plea was only obtained after extensive negotiations, that defendant was evaluated by a defense doctor in addition to undergoing the competency exam ordered by the court and that neither report suggested the possibility of a diminished capacity defense. Indeed the psychologist performing the competency evaluation, while acknowledging defendant's long-standing mental health issues, noted that his past treatment was largely due to anger and impulse control problems related to antisocial personality disorder. The expert concluded that defendant's test results, which were at odds with his observed abilities, suggested defendant was exaggerating his symptoms possibly to avoid criminal responsibility for his actions. Based on those reports and defendant's very favorable plea, the judge concluded defendant had failed to establish a prima facie case requiring an evidentiary hearing.
On appeal, defendant frames the issues as follows:
POINT I
THE PCR COURT ABUSED ITS DISCRETION WHEN THE COURT FOUND THAT R. 3:22-12(a) BARRED DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.
A. R. 3:22-12(a) Did Not Apply To Defendant's Petition for Post-Conviction Because The Petition as Cognizable Under R. 3:22-2(c).
B. A Relaxation of R. 3:22-12(a)'s Time Bar Was Warranted Due To The Existence Of Excusable Neglect And To Avoid Fundamental Unfairness.
1. Defendant Presented Sufficient Facts To Show Excusable Neglect.
2. The Enforcement Of The Time Bar Would Result In Fundamental Unfairness.
POINT II
THE PCR COURT'S RULING MUST BE REVERSED BECAUSE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
A. Trial Counsel Failed To Provide Defendant With A Copy Of Dr. Jackson's Report.
B. Trial Counsel Permitted Defendant To Plead Guilty Without The Benefit Of Medication Stabilization and A Full Evaluation As Recommended By Dr. Jackson.
C. Trial Counsel Failed To Investigate And Present Viable Mens Rea Defenses.
1. Extreme Intoxication.
2. Diminished Capacity.
POINT III
THE COURT SHOULD REMAND THE MATTER FOR AN EVIDENTIARY HEARING.
We agree with the Law Division judge that defendant's claim is time barred. Under Rule 3:22-12(a)(1), a first petition for PCR must be filed no more than five years after entry of the judgment of conviction "unless 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." Defendant meets neither of those requirements.
The only reason defendant offers for his failure to file a PCR petition challenging his conviction within five years is that he was pursuing "appellate remedies." Only exceptional circumstances, not present here, permit relief from the five-year bar. State v. Afanador, 151 N.J. 41, 52 (1997). Further, defendant's pursuit of his direct appeal does not explain the seven-month delay in filing his petition that followed exhaustion of that effort when the Court denied his petition for certification.
We also agree with the trial judge that strict adherence to the time bar of Rule 3:22-12(a) results in no injustice to defendant here, most particularly because his main claim, that counsel permitted defendant to plead guilty although he was impaired by the psychotropic medications he was taking, has already been considered and rejected in a prior proceeding, and is thus barred by Rule 3:22-5. The final adjudication rejecting that claim on the merits likewise bars defendant's claim that his plea proceedings resulted in an illegal sentence challengeable at any time.
We further agree that defendant has failed to establish a prima facie claim of ineffective assistance on the merits. Defendant has never produced any competent evidence to support his claims of extreme intoxication, diminished capacity or inability to fully comprehend the plea proceedings, thus reducing his claims to mere bald assertions without any evidentiary support. See State v. Jones, 219 N.J. 298, 311-12 (2014); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Finally, we reject defendant's claim that the case should be remanded for an evidentiary hearing. Because defendant failed to establish a prima facie case of ineffective assistance of counsel, no evidentiary hearing was required. State v. Preciose, 129 N.J. 451, 462 (1992).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION