STATE OF NEW JERSEY v. RONALD JONES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0730-04T40730-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONALD JONES,

Defendant-Appellant.

________________________________________________________________

 

Submitted November 1, 2005 - Decided

Before Judges Collester and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, 80-308.

Yvonne Smith Segars, Public Defender, attorney for appellant (Thomas Menchin, Designated Counsel, of counsel and on the brief).

Ronald J. Casella, Cumberland County Prosecutor, attorney for respondent (Matthew Bingham, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from an order denying his post-conviction relief (PCR) petition. Tried to a jury, defendant was convicted in 1981 of all six counts of the indictment against him: (1) first-degree kidnapping (N.J.S.A. 2C:13-1(b)(1)); (2), (3), (4) and (5) first-degree aggravated sexual assault (N.J.S.A. 2C:14-2(a)(4)); and (6) third-degree possession of a weapon (a knife) for an unlawful purpose (N.J.S.A. 2C:39-4). On October 19, 1981, defendant was sentenced to an aggregate term of fifty-five years imprisonment with a minimum period of parole ineligibility of twenty-five years as follows: on count one to twenty-five years imprisonment with a twelve-and-one-half year parole disqualifier; on count two to a consecutive term of twenty years imprisonment with a ten-year parole disqualifier; on count five to a consecutive term of ten years imprisonment with a two-and-one-half year parole disqualifier. The sentences imposed on the remaining counts were ordered to be served concurrently with those previously mentioned.

Defendant did not timely file an appeal. Nearly nine years later, on June 8, 1990, through assigned counsel, defendant filed a motion for leave to file a notice of appeal nunc pro tunc. On July 20, 1990, we entered an order remanding the matter to the Law Division with directions to conduct a hearing to determine whether defendant had requested his trial counsel or the Public Defender's Office to file an appeal on his behalf within forty-five days following his judgment of conviction. An evidentiary hearing was conducted on two dates in September 1990, after which the Law Division judge found that defendant made no such request. The matter returned to this court. We determined that the findings of the Law Division judge were adequately supported by the record developed in the remand hearing. We entered an order on November 1, 1990 denying defendant's motion for leave to appeal nunc pro tunc. We denied defendant's reconsideration motion and the Supreme Court denied his petition for certification.

Over the next ten years, we are informed, defendant filed multiple habeas corpus petitions with the United States District Court, all of which were denied. In its appellate brief, the State itemizes and briefly discusses seven such petitions, making specific reference to filing and disposition dates and docket numbers. The record before us does not contain any of the documents from those proceedings. We mention them only for completeness of our discussion. The details, or even the occurrence of any such habeas corpus proceedings, are not germane to our disposition.

On February 3, 2003, plaintiff, acting pro se, filed in the Law Division a "Motion For Relief From Illegal Sentence." The Law Division judge receiving the papers deemed them a PCR petition and on June 5, 2003 entered an order assigning the Office of the Public Defender to represent defendant. Assigned counsel filed a formal verified PCR petition dated January 14, 2004, supported by a comprehensive forty-nine-page brief, asserting these grounds for PCR relief:

POINT I

COUNSEL WAS INEFFECTIVE.

(A) STANDARDS OF INEFFECTIVE ASSISTANCE

(B) COUNSEL FAILED TO OBJECT TO THE CLOSED COURTROOM DURING OPENINGS AND CLOSINGS AND DID NOT INSURE THAT PETITIONER'S FAMILY WAS ALLOWED TO BE PRESENT FOR THE TRIAL.

(C) AS A RESULT OF INEFFECTIVE ASSISTANCE OF COUNSEL, IN PARTICULAR THE FAILURE TO INVESTIGATE AND CONSIDER POTENTIAL DEFENSES, RONALD JAMES WAS DEPRIVED OF A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.

(D) COUNSEL FAILED TO HIRE ALL APPROPRIATE EXPERTS.

POINT II

THE IDENTIFICATION PROCEDURE UTILIZED BY THE POLICE WAS SO IMPERMISSIBLY SUGGESTIVE THAT THE ADMISSION OF THE OUT-OF-COURT AND IN-COURT IDENTIFICATIONS OF DEFENDANT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.

POINT III

COUNSEL'S STRATEGY WAS SO BAD AS TO CONSTITUTE THE INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT IV

THE PETITIONER'S RIGHTS OF CROSS-EXAMINATION AND CONFRONTATION AND HIS RIGHTS TO PRESENT A DEFENSE AND TO A FAIR TRIAL WERE VIOLATED BY THE EXCLUSION OF RELEVANT EVIDENCE AND THE RESTRICTION OF CROSS-EXAMINATION ON RELEVANT MATTERS.

(A) INTRODUCTION.

POINT V

THE RECORD IS REPLETE WITH ERRORS.

POINT VI

COUNSEL FAILED TO FILE THE REQUESTED APPEAL.

POINT VII

THE SENTENCE IS ILLEGAL.

(A) SENTENCES FOR VARIOUS COUNTS SHOULD BE CONCURRENT NOT CONSECUTIVE.

(B) THE SENTENCE SHOULD HAVE BEEN BELOW THE PRESUMPTIVE.

POINT VIII

AN EVIDENTIARY HEARING SHOULD BE GRANTED IN THIS MATTER.

POINT IX

THE FIVE YEAR TIME BAR SHOULD BE RELAXED DUE TO DEFENDANT'S EXCUSABLE NEGLECT AND/OR THE INTERESTS OF JUSTICE.

Judge Farrell heard oral argument on August 13, 2004. He issued a written decision on September 2, 2004, in which he determined that defendant was not entitled to PCR relief and had not made a sufficient showing to warrant an evidentiary hearing. The judge entered an order on September 2, 2004 denying defendant's PCR petition. This appeal followed.

On appeal, defendant presents these arguments:

POINT I

THE LOWER COURT ERRED IN FINDING THE FIVE YEAR TIMEBAR OF R. 3:22-12 APPLIED HERE AS THE NEGLECT WAS EXCUSABLE AND EXCEPTIONAL CIRCUMSTANCES; R. 1:1-2, ALSO WARRANT RELAXATION OF THE RULE.

POINT II

THE ISSUES, WHICH COULD HAVE BEEN RAISED ON DIRECT APPEAL, IDENTIFICATION, BANKSTON AND EXCESSIVE SENTENCE, SHOULD BE DECIDED ON THEIR MERITS FAVORABLY TO DEFENDANT. (PARTIALLY RAISED BELOW).

POINT III

THE PETITION FOR POST-CONVICTION RELIEF SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING WHEREIN DEFENDANT COULD HAVE ESTABLISHED THOSE CLAIMS WHICH REQUIRED THAT EVIDENCE BE TAKEN.

POINT IV

THE SENTENCE IS ILLEGAL.

These arguments lack merit, Rule 2:11-3(e)(2), and we reject them and affirm. We nevertheless set forth a recitation of the facts underlying the conviction and comment briefly on the appeal issues.

I

All of the crimes were perpetrated against S.J. in the early morning hours of December 7, 1980, over a span of about two-and-one-half hours. S.J. had gone to an all-night laundromat in Millville at about midnight. At about 1:00 a.m., defendant entered the laundromat. He engaged S.J. in conversation while she folded her clothes. Defendant was a complete stranger to S.J. Other customers left, leaving defendant and S.J. alone. Defendant looked outside. The light to a neighboring gas station had just been turned off. Defendant then grabbed the victim from behind, put a knife to her neck and dragged her out of the building. Defendant was much larger than S.J. He threatened to slit her throat if she did not cooperate.

Defendant took S.J. behind the laundromat. He ordered her to undress. She refused. He tore off her clothing. Over the next two hours, defendant sexually assaulted S.J. three times by engaging in sexual intercourse with her against her will. He then allowed S.J. to get dressed and the two returned to the inside of the laundromat. There were no other persons present.

Defendant sat on the table and conversed with S.J. He reminded her he still had the knife. He suggested she should not report the incident to the police. He stated "I know you can describe me." He suggested "he had friends" and S.J. should not be "testifying against him." S.J. left the laundromat carrying her folded laundry. Defendant followed her to her car and entered the passenger seat. S.J. refused to get in the car and the two argued. S.J. told defendant he could "take the car, the keys, whatever he wanted." Defendant reminded her that he still had the knife and ordered her to get into the car, which she then did.

Defendant directed her where to drive, finally reaching the Millville Junior High School, where he directed her to stop. Defendant brandished the knife. When a car was passing by, S.J. screamed for help. She stated: "I was on my way out of the door when he grabbed the left side of my neck. The knife was shoved up under my jaw. I was screaming for help." The car did not stop. S.J. clutched the steering wheel and "leaned on the horn." S.J. described what happened next: "He said, you don't think they were really going to stop. At that point, he said let go of the horn. You really want to die right here and now? He forced me out of the car and across the street to walk towards the back of the Junior High School."

Defendant directed S.J. to a door leading to the gymnasium. The door was unlocked, as defendant knew in advance it would be. Apparently, he had through some means arranged for it to be unlocked. When they entered the gymnasium, a mat had already been rolled out and spread on the floor. On the mat, defendant again sexually assaulted S.J., by engaging in sexual intercourse with her against her will. Defendant then allowed S.J. to get dressed, they left the gymnasium, and at defendant's direction, S.J. drove him to an apartment complex where he said he lived. Defendant got out of the car and walked away. S.J. drove directly to a nearby hospital, where she arrived at about 3:30 a.m. She reported she had just been raped and was examined and treated. The police were called and responded to the hospital.

S.J. furnished the police with a detailed description of her assailant and assisted a sketch artist in drawing a sketch of him. Two days later she picked defendant's photo out of a photo array.

II

We now comment briefly on the issues defendant raises on appeal. He first complains that the trial judge erred in failing to relax the five-year time bar (except as to his claim of illegal sentence) provided by Rule 3:22-12(a). The PCR petition was filed more than twenty-two years after the judgment of conviction. We agree with Judge Farrell's conclusion that in his PCR submission defendant asserted no facts demonstrating that his delay of more than seventeen years beyond the limitation period was due to excusable neglect. Nor has defendant demonstrated any exceptional circumstances to justify relaxation of the time bar. See State v. Goodwin, 173 N.J. 583, 595 (2002).

Defendant complains of various trial errors, which, individually or in the aggregate, he contends deprived him of a fair trial. He claims, for example, that the trial judge improperly admitted evidence of the out-of-court identification made by S.J., contending that the photo array was impermissibly suggestive and the identification was unreliable. Based upon our review of the record, we agree with Judge Farrell's conclusion that, after conducting a Wade hearing, the trial judge properly admitted the evidence. The photo array was not impermissibly suggestive, and the reliability of S.J.'s identification was established by the long duration of time she spent in the presence of defendant, much of which was during extended periods in the well-lighted laundromat building, the detailed description she gave of her assailant to the police, her ability to assist in preparing a sketch of the assailant, the close proximity in time between the identification and the criminal episode, and her certainty in making the identification. See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977).

Defendant's claim of a Bankston violation is equally lacking in merit. No objection was made and any potential error was clearly harmless.

Finally, on this point, defendant claims that his sentence was excessive and should be addressed on the merits. We do not agree. Although the sentence was harsh, it was supported by appropriate findings regarding aggravating and mitigating factors, was in accordance with the guidelines enunciated in the Criminal Code, was not manifestly excessive or unduly punitive and did not constitute an abuse of discretion. See State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984). The imposition of consecutive sentences comported with the guidelines prescribed in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 80 L. Ed. 2d 308 (1986).

Therefore, even if these issues were not procedurally barred in the context of a PCR proceeding, they are substantively lacking in merit and would not result in reversal of defendant's conviction.

Defendant next contends that his ineffective assistance of counsel claims were improperly denied and that he should have been granted an evidentiary hearing. Judge Farrell found that defendant did not make a sufficient prima facie showing to warrant an evidentiary hearing and that his contentions lacked sufficient merit to warrant PCR relief. We agree.

Defendant's ineffective assistance claims included, for example, the failure to obtain witnesses who could testify about a prior relationship between defendant and S.J. and thus establish a defense of consent, failure to obtain a psychological evaluation, failure to present medical evidence of lack of trauma to S.J., failure to conduct an adequate investigation, failure to obtain experts, and the like. We agree with Judge Farrell that defendant's showing was insufficient to warrant relief.

Evidentiary hearings in PCR proceedings are discretionary. To be entitled to an evidentiary hearing, the defendant must present a prima facie claim of ineffective assistance, by demonstrating a reasonable likelihood of succeeding under the Strickland/Fritz test. State v. Preciose, 129 N.J. 451, 462-64 (1992). Defendant must demonstrate that counsel's performance was deficient and that a reasonable probability exists that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984). Prejudice is not presumed. State v. Fritz, 105 N.J. 42, 61-62 (1987). A defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceedings. 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).

Further, to support a prima facie showing of any dereliction for not producing witnesses or evidence along the lines suggested by defendant, an affidavit must be produced from the proposed witness to demonstrate the meritoriousness of the assertions. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). That was not done here. Bare assertions or conclusions will not suffice to establish the requisite showing. Ibid.

Finally, we reject defendant's contention that his sentence was illegal. This argument is based upon the United States Supreme Court decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). However, since the filing of the briefs in this appeal, the New Jersey Supreme Court decided State v. Natale, 184 N.J. 458 (2005). The Court determined that in order to render New Jersey's sentencing scheme consistent with the Sixth Amendment jury trial guarantee and to comply with Blakely and related cases, provision for presumptive terms from the sentencing process must be eliminated. Id. at 466. The Court determined, however, that the holding constituted a new rule of law, which would be given only "pipeline retroactivity," thus applying it only to defendants whose cases were on direct appeal as of the date of its decision and to those who raised Blakely claims at trial or on direct appeal. Id. at 494. Thus, the above-presumptive sentences imposed in this case were not illegal and are not subject to reconsideration under Blakely.

We affirm substantially for the reasons expressed by Judge Farrell in his thorough and well reasoned written decision of September 2, 2004.

 
Affirmed.

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

State v. Bankston, 63 N.J. 263 (1973).

Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

(continued)

(continued)

14

A-0730-04T4

RECORD IMPOUNDED

November 22, 2005