STATE OF NEW JERSEY v. WILLIE RUSH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6451-03T16451-03T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIE RUSH,

Defendant-Appellant.

____________________________

 

Submitted October 18, 2005 - Decided January 13, 2006

Before Judges Coburn and Collester.

On appeal from Superior Court of New Jersey,

Law Division, Union County, I-94-05-570,

I-94-05-0574, I-94-05-0557.

Willie Rush, appellant pro se.

Theodore J. Romankow, Union County Prosecutor,

Attorney for respondent (Steven J. Kaflowitz,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant appeals a March 24, 2004 Law Division order denying his second petition for post-conviction relief (PCR) and a June 15, 2004 order denying his request for change of his custodial sentence under R. 3:21-10b(1) to a drug treatment program. We affirm as to both orders.

On February 14, 1995, defendant entered a plea of guilty to counts of three indictments. On Indictment No. 94-05-0570 defendant pleaded guilty to first-degree carjacking and second-degree kidnapping. On Indictment No. 94-05-0557 he pleaded guilty to second-degree robbery. On Indictment No. 94-05-0574 he pleaded guilty to first-degree carjacking and second-degree kidnapping. As part of the negotiated plea, the State recommended that defendant receive an aggregate penal sentence of forty years with a fifteen year parole disqualifier. On September 8, 1995, defendant moved to withdraw his guilty pleas, but after an evidentiary hearing, his motion was denied. On the same date defendant was sentenced in accordance with the plea agreement to an aggregate term of forty years with a fifteen year parole disqualifier.

On March 11, 1997, we affirmed the denial of defendant's motion to withdraw his guilty plea, and the Supreme Court denied his petition for certification. State v. Rush, 150 N.J. 27 (1997). Defendant filed his first petition for PCR in 2000. It was denied on July 26, 2000, and affirmed by us on appeal. Defendant filed this second PCR application in 2003, and it was denied on March 24, 2004 by Judge John S. Triarsi. On June 15, 2004, Judge Triarsi also denied defendant's request for a custody change on grounds that defendant had not served his parole ineligibility term. Following defendant's appeal of both the denial of his PCR motion and his motion for custodial change, we granted his application to proceed as an indigent on appeal but denied his motion for assignment of counsel for the following reason:

As this was defendant's second petition for post-conviction relief, the motion for assignment of counsel on the appeal from that denial is denied. On the appeal defendant may argue that there was "good cause" for the assignment of counsel on the petition, see R. 3:22-6b, and defendant may argue that counsel should have been assigned on the R. 3:21-10(b) application.

Defendant makes the following arguments for our consideration:

POINT I - THE MOTION COURT ERRED IN ITS REFUSAL TO ASSIGNED COUNSEL ON SECOND PCR PETITION OR HOLD A POST CONVICTION RELIEF EVIDENTIARY HEARING ON THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM, WHEREAS DEFENDANT CLEARLY ESTABLISHED "GOOD CAUSE."

POINT II - THE MOTION COURT ALSO ERRED IN ITS REFUSAL TO ASSIGN COUNSEL ON DEFENDANT'S MOTION FOR CHANGE OF CUSTODY TO A DRUG TREATMENT THERAPY FACILITY.

In his reply brief defendant argues:

POINT I - THE LAW DIVISION ERRED BY DENYING DEFENDANT COUNSEL ON HIS SUBSEQUENT PCR, WHERE THE ISSUES RAISED WERE MERITORIOUS AND REQUIRED A MORE CAREFUL ANALYSIS.

POINT II - DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF THE EFFECTIVE ASSISTANCE OF COUNSEL DURING THE PLEA PROCESS, WHICH ULTIMATELY EFFECTED THE SENTENCE HE RECEIVED, WHEREFORE, THE MATTER SHOULD BE REMANDED TO THE LAW DIVISION FOR AN EVIDENTIARY HEARING AND THEREAFTER, GRANT POST-CONVICTION RELIEF.

POINT III - THE STATE'S BRIEF SHOULD BE STRUCK SINCE IT WAS FILED OUT OF TIME. IN THE ALTERNATIVE, THE "TIME BAR" ISSUE SHOULD BE SUPPRESSED.

We note initially that defendant's second PCR motion was procedurally barred by R. 3:22-12(a), which provides:

A petition to correct an illegal sentence may be filed at anytime. No other petition shall be filed pursuant to this rule more than five 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.

Defendant's judgments of conviction were entered on September 15, 1995, and the second PCR petition was filed long after the cut-off date of September 2000. State v. Dugan, 289 N.J. Super. 15, 19-20 (App. Div.), certif. denied, 145 N.J. 373 (1996). Under our case law, the time bar of R. 3:22-12 will be relaxed under R. 1:1-2 only in exceptional circumstances. State v. Afanador, 151 N.J. 41, 52 (1997).

[R. 3:22-12] serves to respect the need for achieving finality of judgments and to allay the uncertainty associated with an unlimited possibility of re-litigation. The Rule therefore strongly encourages those believing they have grounds for post-conviction relief to bring their claims swiftly, and discourages them from sitting on their rights until it is too late for a court to render judgment.

[State v. Mitchell, 126 N.J. 565, 576 (1992).]

In this case there is no showing of excusable neglect or exceptional circumstances to permit relaxation of the time bar of R. 3:22-12 proscribing consideration of defendant's second PCR. Moreover, without considering the time bar, defendant's contention of ineffective assistance of counsel lacks merit. He claims that his trial counsel failed to advise him of the parameters of the penal aspect of his sentence under the plea agreement, and, as a result, his entry of a guilty plea was neither knowing nor voluntary. However, the record indicates that prior to defendant's sentence there was an evidentiary hearing on defendant's motion to withdraw his guilty plea. At that hearing his trial counsel testified she discussed the State's plea offer of forty years and a fifteen year parole disqualifier with the defendant. She said he understood the parole ineligibility period and indicated that he was "happy" it was only fifteen years. Moreover, the plea form clearly sets forth the State's recommended sentence including the fifteen year parole ineligibility term, and Judge Triarsi carefully reviewed the plea agreement at the time of defendant's entry of his plea. Therefore, the record clearly denotes that defendant's guilty plea was knowing and voluntary and that his claims of ineffective assistance of counsel totally lacks substance.

Similarly, defendant's contentions that he was entitled to assignment of counsel on this second PCR and should have received an evidentiary hearing also lack merit. R. 3:22-6b provides that "upon any second or subsequent petition ... attacking the same conviction, the matter shall be referred to the Office of the Public Defender only upon application therefor and showing of good cause." We agree with Judge Triarsi that defendant failed to show good cause for a referral and that, therefore, defendant was not entitled to assignment of counsel. Furthermore, defendant failed to show any abuse of discretion by Judge Triarsi in denying an evidentiary hearing on defendant's claim of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 460-61 (1992); R. 3:22-10. If a judge determines that an evidentiary hearing will not aid the analysis as to whether defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague or speculative, he may properly deny such a hearing. State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); State v. Jack, 144 N.J. 240, 254 (1996). In this instance, Judge Triarsi properly found that the defendant's claims of ineffective assistance were without substance and that he therefore failed to demonstrate a reasonable likelihood that his claim could ultimately succeed under the two-prong test of Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984). We agree.

We next address defendant's argument that Judge Triarsi's denial of his application for a change of custody to a drug treatment program was an abuse of discretion. R. 3:21-10(b) permits a defendant to apply for a change of sentence outside of the usual timeframe for such applications to permit a defendant to enter a drug or alcohol treatment program based on a showing that the defendant is an appropriate candidate for the program. State v. McKinney, 140 N.J. Super. 160, 163 (App. Div. 1976). However, at the time of his application for a custodial change under R. 3:21-10(b) the defendant had not yet served the mandatory parole ineligibility term of his sentence. Under N.J.S.A. 2C:15-2b defendant's two consecutive carjacking sentences had mandatory parole ineligibility terms of five years each so that ten of the fifteen year parole ineligibility period was mandated by the Legislature. As a result, relief under R. 3:21-10b(1) was not available to the defendant until after the expiration of ten years. State v. Farrington, 229 N.J. Super. 184, 185-87 (App. Div. 1988); State v. Mendel, 212 N.J. Super. 110, 113 (App. Div. 1986). Here, defendant was sentenced on September 19, 1995 with jail credit of ninety-three days, and the statutory mandated parole ineligibility term did not end until June 2005. Therefore, in his determination in June 2004, Judge Triarsi correctly found that he did not have jurisdiction to consider defendant's application.

 
Affirmed.

(continued)

(continued)

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A-6451-03T1

January 13, 2006