STATE OF NEW JERSEY v. CHARLES WILLIAMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3002-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES WILLIAMS,

Defendant-Appellant.

 

Submitted: June 5, 2006 - Decided July 20, 2006

Before Judges A. A. Rodr guez and Fall.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment Number 93-11-1164-I.

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

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

PER CURIAM

Defendant Charles Williams appeals from an order entered in the Law Division on December 23, 2004, denying his application for post-conviction relief. We affirm. The following factual and procedural history informs our decision.

Defendant was charged in Cumberland County Indictment Number 93-11-1164 with first-degree aggravated sexual assault upon victim J.R., N.J.S.A. 2C:14-2e (count one) first-degree aggravated sexual assault upon victim J.H., N.J.S.A. 2C:14-2e (count two); second-degree sexual assault upon victim J.R., N.J.S.A. 2C:14-2c(1) (count three); second-degree sexual assault upon victim J.H., N.J.S.A. 2C:14-2c(1) (count four); first-degree kidnapping of J.R., N.J.S.A. 2C:13-1b (count five); first-degree kidnapping of J.H., N.J.S.A. 2C:13-1b (count six); third-degree endangering the welfare of J.R., N.J.S.A. 2C:24-4a (count seven); and third-degree endangering the welfare of J.H., N.J.S.A. 2C:24-4a (count eight).

On December 3, 1993, defendant and the State entered into a plea agreement under which defendant agreed to enter a plea of guilty to the first-degree aggravated sexual assault charge contained in count two of the indictment; the State would recommend that the remaining counts of the indictment be dismissed; defendant stipulated to being extended-term eligible; and the State agreed to recommend imposition of an extended term of fifty years' imprisonment, with a twenty-five-year parole disqualifier, to be served either in New Jersey State Prison or at the Adult Diagnostic and Treatment Center (ADTC). The agreement also provided that whether any sentence imposed on pending parole violation charges would run concurrently or consecutively would be left to the court's discretion.

On December 16, 1993, defendant entered a guilty plea in accordance with the terms of the plea agreement. Defendant acknowledged two prior indictable convictions, one on October 18, 1979, and another on June 17, 1980. Defendant further acknowledged that he was giving up his right to claim that he should not be considered extended-term eligible because those convictions occurred more than ten years prior to the commission of the aggravated sexual assault charge contained in the indictment. Defendant then provided an adequate factual basis for his plea. The judge ordered defendant to be evaluated by the ADTC.

In a report dated May 17, 1994, the ADTC stated that defendant met the criteria for sentencing to its facility. On June 24, 1993, defendant was sentenced to the ADTC at Avenel for a term of fifty years, with twenty-five years to be served prior to eligibility for parole, consecutive to the sentence he was currently serving as a result of the parole violation. The court also found that the aggravating factors substantially outweighed the absence of mitigating factors. The court informed defendant he had the right to file an appeal within forty-five days.

Defendant did not file a direct appeal from the judgment of conviction. The judgment was amended on October 17, 2001, to modify the credit for time served.

On February 3, 2003, defendant filed a pro se petition seeking post-conviction relief, contending that the sentence imposed was excessive and illegal. On August 19, 2004, counsel for defendant filed an amended petition for post-conviction relief, contending that defendant had been provided ineffective assistance of counsel "in that counsel gave him misinformation and advice and failed to file motions to correct his illegal sentence." Defendant also contended that the sentence imposed was illegal based on the principles enunciated in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

Defendant's petition was argued in the Law Division on December 10, 2004, before Judge Richard J. Geiger. In denying defendant's application, the judge found that his petition was time-barred by application of R. 3:22-12(a), in that it had been filed more than eight and one-half years after the date of his conviction. The judge noted that defendant "doesn't offer any compelling or extraordinary reasons or indeed any factual basis for [excusable neglect] or other reason to waive the five-year time period. It simply fails in that regard."

In reaching his conclusions, the judge found significant defendant's familiarity with the post-conviction relief procedures and time requirements as demonstrated by his filing of an application for post-conviction relief concerning one of his prior convictions. See State v, Williams, A-485-87T6 (May 5, 1989). The judge stated:

He represented himself in that appeal of the denial of the PCR to the Appellate Division. And the Appellate Division refers to it as a PCR application and ultimately affirms the denial of his post conviction relief application and determines that it was not a basis for a claim of the [alleged illegal] sentence.

This is not someone who could claim that he was unfamiliar with the process. He may not be a lawyer but he's not inexperienced in the realm. He knew about the PCR process. He handled the pro se appeal from the denial of a PCR process. That was decided in 1989. This conviction happens a few years later. It's disingenuous and totally factually unsupported that he didn't know how to do it or at least get the ball rolling. He did not take a direct appeal. He did not and never has taken a direct appeal [from] his sentence in this case. Arguments regarding excessiveness of sentence are normally to be argued in a direct appeal to the Appellate Division, not a post-conviction relief application.

He elected not to file that appeal. He has to live by the election. There is nothing in this court's determination about the sentence that he received that is illegal. It's clearly within the bounds of the law, within the sentencing provisions. It wasn't outside the sentencing province of the court. He may argue that it should have been concurrent rather than consecutive; that doesn't make it illegal. . . .

Now, he argues at length about whether that was an appropriate plea bargain and an appropriate sentence. He also argues that under Blakely v. Washington he should not be subject to that type of sentencing beyond a presumptive sentence. And he argues that any possible exposure to the Sexually Violent Predator Act[, N.J.S.A. 30:4-27.24 to -27.38,] should have been explained to him before the plea was entered.

Well, let's deal with that first. It's my understanding that the Sexually Violent Predator Act was passed by the Legislature in 1998. And, I believe it went into effect on or about August 12, 1999. That was approximately five years . . . after he was convicted, let alone pled guilty under the plea negotiations. . . .

So, there would have been no basis for [defendant's trial counsel] or anyone else or any attorney advising him of the potential exposure to the Sexually Violent Predator Act at the time that the sentence was imposed, during any of the plea negotiations or any time in between those two events.

* * * *

Now, there's no excusable neglect shown by this defendant or any other reasons compelling relaxing the five-year bar. First of all, none of his arguments appear to be meritorious. There's no showing his application has any merit procedurally or substantively. There's no showing that defense counsel's efforts fell below the wide range of professionally competent assistance required under the first tier of Strickland v. Washington[, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984),] nor has the defendant demonstrated the necessary prejudice caused by any alleged deficit or ineffective assistance of counsel.

Defendant has not demonstrated a reasonable probability that, but for defense counsel's unprofessional errors, the result of the proceeding would have been different; therefore, he has also failed to meet the second prong of the test of ineffective assistance of counsel under the U.S. Supreme Court decision in Strickland --- any issue of excessiveness of sentence should have been handled on a direct appeal. It was not. It's precluded from consideration under a petition for post-conviction relief absent exceptional circumstances, none of which are present here. There's nothing illegal about the sentence.

* * * *

If there was ever a case where State v. Dunbar[, 108 N.J. 80 (1987)], applied to require an extended term necessary for the protection of the public, this is one of those cases and I think [defendant] all but admitted that or at least realized the degree of his . . . problem when he was sentenced.

There's no question that he signed all the necessary plea agreements which specifically, clearly and definitively set forth what his sentence was going to be. There's no question that he signed a stipulation as to the extended term sentencing. He knew . . . explicitly what to expect and he agreed voluntarily to take this sentence. He knew what the ramifications and the full consequences of the plea were.

On December 23, 2004, the judge issued an order memorializing his denial of defendant's petition for post-conviction relief. On appeal, defendant presents the following arguments for our consideration:

POINT I

THE PCR COURT FAILED TO MAKE SUFFICIENT FACTUAL FINDINGS (Not Raised Below).

POINT II

AT EACH STAGE OF THIS CASE, DEFENSE COUNSEL'S FAILURES TO PROTECT PETITIONER'S CONSTITUTIONAL RIGHTS DEPRIVED HIM OF EFFECTIVE ASSISTANCE OF COUNSEL. (U.S. CONST. AMENDS VI, XIV; N.J. CONST. (1947) ART. I, PAR. 10) (Partially Raised Below).

After analyzing the record in the light of the written arguments advanced by the parties, we conclude that the issues presented by defendant are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)((2), and we affirm substantially for the reasons expressed by Judge Geiger in his comprehensive oral opinion delivered on December 10, 2004. Application of the time bar set forth in R. 3:22-12(a) was fully appropriate in these circumstances, as defendant failed to establish excusable neglect, exceptional circumstances, or that application of the rule would result in an injustice. See State v. Afandor, 151 N.J. 41, 52 (1997); State v. McQuaid, 147 N.J. 464, 485 (1997). Moreover, as Judge Geiger noted, defendant's petition also lacked substantive merit.

Affirmed.

 

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A-3002-04T4

July 20, 2006