STATE OF NEW JERSEY v. STEPHAN CASTELLANO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6152-01T46152-01T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEPHEN CASTELLANO,

Defendant-Appellant.

__________________________________

 

Submitted February 14, 2006 - Decided March 6, 2006

Before Judges Lintner and Parrillo.

On appeal from the Superior Court of

New Jersey, Law Division, Morris County,

84-01-0063.

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

Michael M. Rubbinaccio, Morris County Prosecutor, attorney for respondent (Joseph J. D'Onofrio, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Stephen Castellano, appeals from the dismissal of his October 30, 2001, petition for post-conviction relief (PCR), which was denied by Judge Harper because defendant failed to show injustice that would relax the time bar under R. 3:22-12. On appeal, defendant raises the following points:

I. THE DEFENDANT'S CLAIMS SHOULD NOT HAVE BEEN TIME BARRED.

II. THE INDICTMENT SHOULD HAVE BEEN DISMISSED IN ITS ENTIRETY.

III. DEFENDANT WAS DEPRIVED OF A FAIR TRIAL BY JUROR MISCONDUCT.

IV. DEFENDANT'S DUE PROCESS RIGHTS WERE VIOLATED WHEN HIS FIRST STATEMENT WAS DESTROYED AND HIS SECOND STATEMENT WAS OBTAINED IN VIOLATION OF HIS FIFTH AMENDMENT RIGHTS.

V. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

VI. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

VII. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF POST CONVICTION RELIEF COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS. (Not Raised Below.)

VIII. THE SENTENCE IMPOSED WAS IMPROPER.

IX. THE LOWER COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING THE DEFENDANT AN EVIDENTIARY HEARING.

We reject defendant's contentions and affirm essentially for the reasons expressed by Judge Harper in his oral opinion of June 27, 2002.

We recite the facts relevant to this appeal. On the evening of December 23, 1983, defendant arranged by telephone to borrow $150 from his friend, Stephen Bernknopf, at the Tivoli Gardens apartments in Parsippany, New Jersey. Following a subsequent telephone conversation with Bernknopf, defendant went to Bernknopf's apartment. While the two were having a casual conversation, two other individuals came to purchase marijuana from Bernknopf, which they all smoked. Despite receiving money from these sales, Bernknopf told defendant that he did not have enough money for the loan.

According to defendant, Bernknopf reneging on his promise caused defendant to "snap" inside, although he retained an outward composure. Defendant picked up a ball peen hammer that he noticed in the apartment and placed it in his pants pocket. Upon exiting the apartment with Bernknopf, defendant began hitting Bernknopf with the hammer. As Bernknopf tried to escape, defendant caught him, knocked him to the ground, and continued to strike his head and body with the hammer. Two boys, ages twelve and fourteen, witnessed the beating. One of the boys reported that he heard defendant say, "Come back inside, I'm going to finish this." Defendant and Bernknopf re-entered the apartment and began to argue about obtaining medical assistance for Bernknopf. Defendant again "just snapped" and hit Bernknopf several more times with the hammer. Meanwhile, the older boy called the police.

The police knocked on the victim's door, but nobody responded. They eventually gained access to the apartment where they found Bernknopf lying on the floor, bleeding, and semi-conscious. They searched the apartment and found defendant hiding inside a bedroom closet. The hammer was found in a toilet tank. Bernknopf subsequently died from the brain lacerations and skull fractures that defendant had inflicted. Defendant was "told verbally that nothing was found in [Bernknopf's] blood as far as drugs go," but defendant doubts that fact because "he was a known drug user." According to the police, defendant did not appear to be under the influence of drugs, nor did he have any difficulty walking or talking. Defendant was taken to headquarters where he was given Miranda warnings. He then gave two taped statements. The first did not record properly. During the statements, defendant confessed to assaulting Bernknopf.

On January 4, 1984, the Morris County Grand Jury returned Indictment No. 84-01-0063-I, charging defendant, Stephen Castellano, with first-degree murder, N.J.S.A. 2C:11-3a(1) and (2) (Count One), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (Count Two). On October 4, 1984, a death-qualified jury found defendant guilty of both counts. The jury was unable to reach a unanimous verdict on the appropriate penalty. The trial judge sentenced defendant to life imprisonment with thirty years of parole ineligibility for first-degree murder and a consecutive sentence of five years imprisonment for the weapons charge.

Defendant filed a notice of appeal on January 16, 1985. Appellate counsel filed an appellate brief raising nine points. Defendant requested that counsel seek an extension to allow trial counsel time to obtain what defendant claimed were missing documents. Defendant also wanted to file a pro se brief. Appellate counsel advised defendant not to wait for an extension, that there were rigid time requirements on appeal and that he should file his pro se brief as soon as possible and not wait for a ruling on the request for an extension. Counsel sought and obtained an extension. Defendant, however, never filed a brief.

On March 23, 1987, the appellate panel affirmed the conviction but remanded defendant's sentence to require merger of the weapons conviction and the murder conviction. The following day, defendant wrote a letter to the Presiding Judge of the appellate panel raising the claim of ineffective assistance of counsel. On April 7, 1987, the Acting Clerk of the Appellate Division returned defendant's letter as moot because the case had already been decided. On the same date, defendant wrote a letter to counsel at the Public Defender's Office requesting that it file a petition for certification asserting ineffective assistance of counsel. On April 12, 1987, defendant wrote to his appellate attorney telling him to file a petition for PCR. Appellate counsel responded that he would do so after the Supreme Court decided defendant's petition for certification. On June 9, 1987, defendant's petition for certification was denied. State v. Castellano, 108 N.J. 179 (1987). On August 1, 1987, defendant again wrote appellate counsel inquiring about the status of the PCR.

On October 30, 2001, over fourteen years later, defendant filed a pro se petition for PCR claiming that he was having a "casual conversation" with another inmate who indicated that he had helped inmates get their convictions overturned. Counsel was later assigned to assist defendant with his petition. This appeal followed Judge Harper's decision of June 27, 2002.

We have carefully reviewed the record provided and conclude that Judge Harper correctly dismissed defendant's petition for PCR. The record does not support a finding that defendant's fourteen-plus-year delay in filing was due to excusable neglect.

R. 3:22-12(a) provides:

A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.

The five-year period commences when the judgment of conviction is entered. State v. Dugan, 289 N.J. Super. 15, 19-20 (App. Div.), certif. denied, 145 N.J. 373 (1996). It is neither stayed nor tolled by appellate or other review proceedings. State v. Dillard, 208 N.J. Super. 722, 727 (App. Div.), certif. denied, 105 N.J. 527 (1986).

Defendant claims that the delay was due entirely to ineffective assistance of counsel. The record discloses that defendant wrote letters to both trial and appellate counsel throughout the appellate process, demanding that additional issues be raised. Likewise, he wrote several times immediately after the appellate panel's decision, essentially demanding that a petition for PCR be filed raising ineffective assistance of counsel. As Judge Harper aptly pointed out, "defendant never followed up . . . . He is the only one that caused the delay in getting his PCR filed." We agree that defendant failed to establish facts excusing his delay. State v. Mitchell, 126 N.J. 565, 576-77 (1992).

The time bar of R. 3:22-12 will be relaxed under R. 1:1-2 only where exceptional circumstances exist. State v. Afanador, 151 N.J. 41, 52 (1997); Mitchell, supra, 126 N.J. at 580. A petitioner's allegation that an injustice has transpired is not sufficient. Id. at 579. Rather, "[t]he petitioner must be prepared to 'establish, by a preponderance of the credible evidence, that he is entitled to the requested relief.'" Ibid. (quoting State v. Marshall, 244 N.J. Super. 60, 69 (Law Div. 1990)).

"Rule 1:1-2 was not intended to vitiate the rules from which it permit[s] exceptional relief." Ibid. The rule's purpose is to grant exceptions, but "we can avoid the gradual disintegration of our rules only by requiring that each such grant be carefully considered." Ibid. Thus, the circumstances under which R. 3:22-12 may be relaxed must be truly exceptional. In determining whether exceptional circumstances exist, we consider "the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an 'injustice' sufficient to relax the time limits." Id. at 580. Furthermore, the burden of justifying the filing of a petition after the five-year period will increase with the extent of the delay unless compelling, extenuating circumstances exist. Ibid. This is so because "the longer the time-span since the original trial, the more difficult a retrial becomes." Ibid.

Also relevant is "[t]he prejudice to the State's ability to litigate the case after a long delay . . . . If the key witnesses are unlikely to be available, evidence has disappeared, or other obstacles are present, allowing the petition . . . will unduly prejudice the State's ability to bring its case." Ibid. Such concerns must be balanced against the petitioner's interest in raising the petition. Ibid. If the petitioner enunciates facts that establish "a serious question about his or her guilt . . . and is prepared to provide factual evidence to support it, then sufficient grounds for relaxing the Rule might exist." Ibid. A court should find that failure to relax the procedural rule "is unjust only when a significant liberty interest is at stake and the petitioner has offered something more than a bare allegation that that is so." Ibid.

In the present case, because of the great length of time that has passed since the trial, defendant has a significant burden to demonstrate that the time bar should be relaxed. The State's ability to relitigate the case has been seriously diminished after such an extensive passage of time. Furthermore, defendant's petition does not allege facts that raise a serious question about his guilt. He claims that (1) his trial and appellate counsel negligently failed to communicate with him; (2) he was improperly indicted with first- degree murder because the State failed to reveal he was under the influence of drugs and did not have the requisite intent to kill; (3) alternate jurors were permitted into the jury room with a block of wood and nails; (4) the grand jury was never informed that defendant gave two statements; and (5) his sentence was excessive. He also claims trial counsel had conflicts of interest and failed to have him testify in his own defense, which should have included the defense of diminished capacity. Some of these same claims were essentially argued on direct appeal (intoxication, reckless manslaughter as a lesser offense, and impartiality of the jury) and thus proscribed by R. 3:22-5. Moreover, although couched in terms of "improper," defendant essentially asserts that his sentence was excessive, because it was not recognized that "he was on drugs" at the time of the offense. Again, his asserted intoxication was raised on direct appeal. Under these circumstances, defendant was required to raise the issue of excessive sentence on direct appeal. See State v. Clark, 65 N.J. 426, 437 (1974).

We do not minimize the constitutional claims which may have facial merit, yet the burden placed on defendant to come forward at least with a factual basis for relief under R. 3:22-12 must be met before the extraordinary relief sought by defendant can be entertained. Here, Judge Harper addressed defendant's various claims of ineffective assistance of counsel, including defendant's claim that his trial counsel should have raised the defense of diminished capacity, and correctly found that there was no factual basis under the two-pronged Strickland test to warrant an evidentiary hearing, much less a showing of injustice sufficient to relax the time limits under the mantra of extraordinary circumstances.

We agree and affirm essentially for the reasons set forth by Judge Harper in his opinion of June 27, 2002. We are equally satisfied that defendant's arguments to the contrary lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

 
Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

(continued)

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11

A-6152-01T4

March 6, 2006