Opinion
DOCKET NO. A-2219-12T3
02-19-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. IRONE WATFORD, Defendant-Appellant.
Irone Watford, appellant pro se. Gaetano T. Gregory, Acting Assistant Hudson County Prosecutor (Peter J. Baker, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Harris and Guadagno.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 94-6-0904.
Irone Watford, appellant pro se.
Gaetano T. Gregory, Acting Assistant Hudson County Prosecutor (Peter J. Baker, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Irone Watford appeals from the November 27, 2012 order dismissing his third petition for post-conviction relief (PCR) pursuant to Rule 3:22-4(b)(1) and -4(b)(2), and denying his request for the assignment of counsel pursuant to Rule 3:22-6(b). We affirm.
I.
Watford was convicted in 1997 of multiple counts in an indictment, including aggravated sexual assault, robbery, carjacking, and kidnapping. On September 22, 1997, he was sentenced to an aggregate term of life plus eighty years imprisonment with a sixty-year parole disqualifier.
We affirmed Watford's convictions and sentence, State v. Watford (Watford I), No. A-1544-97 (App. Div. March 31, 2000), and the Supreme Court denied certification. State v. Watford, 165 N.J. 487 (2000).
In 2000, Watford filed his first PCR petition, which was denied in January 2002. On June 16, 2003, we affirmed, State v. Watford (Watford II), No. A-3753-01 (App. Div. June 16, 2003), and the Supreme Court denied certification. State v. Watford, 178 N.J. 34 (2003).
In April 2009, Watford filed his second PCR petition, also styled as a motion to correct an illegal sentence, which was denied in May 2009, and again in July 2009, without an evidentiary hearing. We affirmed, State v. Watford (Watford III), No. A-5737-08 (App. Div. May 5, 2010), and the Supreme Court denied certification. State v. Watford, 205 N.J. 15 (2010).
We commented, "On May 29, 2009, Judge Michael L. Ravin denied the petition without granting an evidentiary hearing. For reasons that are unclear to us, the matter was also considered and denied by Judge Camille M. Kenny on July 15, 2009, also without a hearing." Watford III, supra, slip op. at 3.
The present PCR petition was filed in June 2012. On November 27, 2012, Judge John A. Young, Jr. issued a letter opinion finding that "good cause" did not exist justifying representation by the Office of the Public Defender "because this matter is procedurally barred under R. 3:22-4 and does not allege a substantial issue of fact or law." The order dismissing the PCR petition was entered the same day. This appeal followed.
On appeal, Watford presents the following issues for our consideration:
Points I, II, and II were the subject of an order entered by us on March 21, 2013, in which we granted Watford permission to proceed as an indigent and to file his notice of appeal as within time. We denied the request for the assignment of counsel.
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POINT I: THE DEFENDANT-APPELLANT SHOULD BE ALLOWED TO PROCEED AS AN INDIGENT ON THE PRESENT APPEAL.After reviewing the record, we conclude that Watford's remaining arguments relating to Points IV, V, and VI are meritless. R. 2:11-3(e)(2). Consequently, we affirm substantially for the reasons expressed by Judge Young in his November 27, 2012 letter opinion. We add only the following.
POINT II: THE DEFENDANT-APPELLANT SHOULD BE ALLOWED TO FILE A NOTICE OF APPEAL NUNC PRO TUNC.
POINT III: THE ASSIGNMENT OF COUNSEL SHOULD CONTINUE ON APPEAL.
POINT IV: APPELLANT WAS DEPRIVED OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND
THE LOWER COURT ORDER DENYING PETITION MUST THEREFORE BE REVERSED.
POINT V: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED SINCE THE LOWER COURT ERRED WHEN IT SUMMARILY DENIED PETITION WITHOUT FIRST HOLDING AN EVIDENTIARY HEARING ON APPELLANT'S CLAIMS.
POINT VI: THE LOWER COURT ERRED IN DENYING THE PETITION FOR POST-CONVICTION RELIEF AND THE ORDER MUST BE REVERSED SINCE THE APPELLANT'S CLAIMS OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL ENTITLES HIM TO RELIEF. (NOT RAISED BELOW)
The main focus of Watford's arguments relates to his claim of ineffective assistance of trial counsel insofar as
since petitioner's trial attorney did not provide him with accurate information about his maximum sentence exposure there exist[s] a "reasonable probability" that but[] for counsel's error the outcome may "very well" have been different. In that Mr. Watford would not have gone to trial and would ha[ve] accepted the State's final plea offer of ten years instead of now having almost twenty years in on a life sentence.Additionally, Watford contended that "petitioner's PCR attorney failed to advance all of his ineffective assistance of trial counsel claims in his initial PCR petition."
The present PCR petition suffers from exactly what Judge Young detected: a woeful lack of timeliness. The alleged deficiencies of trial counsel were required to be the subject of a petition for PCR no later than September 22, 2002, pursuant to Rule 3:22-12(a)(1) ("no petition shall be filed pursuant to this rule more than 5 years after the date of entry . . . of the judgment of conviction"). Because the present petition was filed in 2012, the alleged deficiencies of PCR counsel were required to be the subject of a petition for PCR no later than one year following the denial of PCR where ineffective assistance of PCR counsel is being alleged. R. 3:22-12(a)(2)(C). Since the one-year limitation was implemented on February 1, 2010, Watford's present PCR petition is tardy by more than one year. And, beyond the bald assertion of having newly discovered evidence to bolster the ineffective assistance of counsel claims, there is not a trace in the record to suggest that the present claims of ineffective assistance of counsel are newly discovered. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (holding that "a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel"), certif. denied, 162 N.J. 199 (1999). Indeed, giving Watford the benefit of the doubt, he knew or should have known of PCR counsel's alleged deficiencies on October 29, 2003 when the Supreme Court denied certification with respect to his first PCR petition. Plainly, the present challenge to PCR counsel's performance is grossly overdue.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION