STATE OF NEW JERSEY v. LEROY CAMP

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1686-06T41686-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEROY CAMP,

Defendant-Appellant.

____________________________________________________________

 

Submitted October 31, 2007 - Decided

Before Judges Parker and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 80-0204.

Yvonne Smith Segars, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief).

Robert L. Taylor, Cape May Prosecutor, attorney for respondent (J. Vincent Molitor, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Leroy Camp appeals from an order entered on September 19, 2006 denying his petition for post-conviction relief (PCR). We have considered the arguments advanced on this appeal in light of the facts and applicable law, and we affirm the order from which defendant appeals.

On November 4, 1981, a jury found defendant guilty of the offenses charged in the Cape May County Indictment No. 80-0204 relating to events occurring on December 5, 1980, when Josephine Trombetta was brutalized and killed. Based on the jury's verdict, the trial court sentenced defendant on December 21, 1981, as follows: for first degree murder, N.J.S.A. 2C:11-3 (count one), to a term of life in prison, subject to twenty-five years of parole ineligibility; for first degree kidnapping, N.J.S.A. 2C:13-1(b)(2), (count two), to a term of twenty years, subject to ten years parole ineligibility; for first degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) (5) and (6), and N.J.S.A. 2C:5-1 (count four), to a term of twenty years, subject to ten years parole ineligibility; for second degree robbery, N.J.S.A. 2C:15-1 (count five), to a term of five years, subject to two years of parole ineligibility; and for second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count six), to a term of ten years, subject to five years of parole ineligibility. The sentences were imposed consecutive to each other and consecutive to a sentence imposed for a parole violation.

On February 2, 1982, defendant appealed from the December 21, 1981 judgment of conviction and in an unpublished opinion, we affirmed. State v. Camp, No. A-2339-81T4 (App. Div. May 9, 1983) (slip. op. at 5). On July 7, 1983, the Supreme Court denied defendant's petition for certification. State v. Camp, 94 N.J. 575 (1983). Defendant also pursued relief through federal habeas corpus petitions. On May 25, 1993, the federal court dismissed defendant's petition for a writ of habeas corpus, and on September 14, 2000, the federal court dismissed a second petition for a writ of habeas corpus.

On March 27, 2002, defendant filed a pro se petition for PCR, which was denied on May 6, 2002. On January 13, 2004, we reversed that denial and remanded for assignment of counsel. Our reversal of the PCR petition was based solely on the fact that defendant was not represented and had not waived his right to counsel. On September 19, 2006, the PCR petition was again denied and defendant appeals.

In this appeal, defendant argues:

POINT I: THE LOWER COURT ERRED IN DENYING THE PETITION SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

A. TRIAL COUNSEL FAILED TO INVESTIGATE AND CALL A KEY DEFENSE WITNESS.

B. TRIAL COUNSEL FAILED TO CONDUCT AN ADEQUATE PRETRIAL INVESTIGATION OF GASKILL'S VEHICLE.

C. TRIAL COUNSEL DEPRIVED DEFENDANT OF HIS RIGHT TO TESTIFY.

POINT II: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT III: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT IV: THE LOWER COURT ORDER MUST BE REVERSED SINCE THE SENTENCE SHOULD HAVE BEEN REDUCED.

A. THE SENTENCE IS EXCESSIVE AND ILLEGAL.

B. THE IMPOSITION OF CONSECUTIVE SENTENCES IS ILLEGAL AND UNJUSTLY HARSH.

C. THE SENTENCE IS FAR HARSHER THAN THAT IMPOSED UPON A CO-DEFENDANT AND IS THEREFORE ILLEGAL.

POINT V: THE LOWER COURT ORDER MUST BE REVERSED SINCE THE FIVE YEAR TIME BAR SHOULD NOT BE APPLIED TO BAR DEFENDANT'S CLAIMS.

POINT VI: THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

The PCR court disposed of this petition based on it being "grossly out of time", noting also that "counsel has been unable to present any basis for the failure on the part of defendant to file within the time period allowed." Thus, we must address whether the court can or should consider defendant's contentions on the merits in spite of the Rule 3:22-12(a) time bar. With regard to a petition for PCR, Rule 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 Supreme Court adopted this Rule for good reason.

As time passes after conviction, the difficulties associated with fair and accurate reassessment of the critical events multiply. Achieving "justice" years after the fact may be more an illusory temptation than a plausibly attainable goal when memories have dimmed, witnesses have died or disappeared, and evidence is lost or unattainable . . . . Moreover, the Rule serves to respect the need for achieving finality of judgments and to allay the uncertainty associated with an unlimited possibility of relitigation . . . .

The Rule is not rigid and monolithic. When an illegal sentence is in question, no time limitations apply. When the petitioner demonstrates excusable neglect, a court may disregard the five-year bar. And as with all of our Rules, where the interests of justice so require, the Rule will be relaxed. Rule 1:1-2.

[State v. Mitchell, 126 N.J. 565, 575-76 (1992).]

Defendant was convicted of these crimes in 1981 but did not file his first PCR petition until 2002, more than twenty years after the original judgment. Therefore, we are charged with searching the record for a showing of the imposition of an illegal sentence, the defendant's excusable neglect for the late filing, or interests of justice which would militate towards our relaxation of the time bar. After a careful review of the relevant facts and circumstances, we perceive no such facts or circumstances that would move us to disturb the PCR court's denial of defendant's petition.

Defendant argues that the time bar should not apply because of erroneous advice given by appellate counsel. Defendant's appellate counsel allegedly advised defendant that many of the issues for appeal needed to be brought in a federal court. Because he contends he was forced to pursue federal remedies, defendant now claims excusable neglect. Defendant, however, overlooks the fact that even his original federal appeal was not filed until 1990. This was already nine years after the trial court entered the judgment of conviction in this case. Moreover, the filing of an appeal whether in federal or state court does not extend the time bar prescribed in Rule 3:22-12. See State v. Milne, 178 N.J. 486, 494 (2004); see also State v. Dillard, 208 N.J. Super. 722, 727, certif. denied, 105 N.J. 527 (1986). Therefore, excusable neglect is not established where no evidence exists that defendant sought a remedy at any level prior to the running of the time limitation expressed in Rule 3:22-12.

Despite these facts, defendant still urges us to reverse the conviction and sentencing in the interests of justice. As noted above, Mitchell, supra, recognized that the time bar may be relaxed in the interests of justice. In order to even consider defendant's arguments under this exception, "[defendant] must be prepared to 'establish, by a preponderance of the credible evidence, that he is entitled to the requested relief.'" Mitchell, supra, 126 N.J. at 579 (quoting State v. Marshall, 244 N.J. Super. 60, 69 (Law Div. 1990)). "To sustain that burden, specific facts must be alleged and articulated, which, if believed, would provide the court with an adequate basis on which to rest its decision." Ibid.

In this case, defendant alleges in a sworn affidavit that defense counsel would not allow him to take the stand in order to testify on his own behalf, and that defense counsel threatened to quit if defendant testified. Our State Supreme Court has recognized that "the right to testify is essential to our state-based concept of due process of law, which guarantees a 'fair and impartial trial . . . .'" State v. Savage, 120 N.J. 594, 628 (1990). "[A] criminal defendant is entitled to testify on his or her own behalf under Article I, paragraphs 1 and 10 of our State Constitution." Ibid. The issue is whether there is any evidence that defendant's right was violated.

The following exchange took place prior to the start of the defense case.

THE COURT: You have to go through him. I'll ask for Mr. Camp now. Mr. Camp, would you stand up a moment? Your attorney has asked me to direct this question to you; namely, you understand you have a privilege against self-incrimination, you do not have to testify against yourself. Moreover, if you wish to exercise the right to testify, you will certainly be permitted to do that. And I was just going to ask you now if there's anything you want to tell the Court at this time as to whether you do care to testify or you prefer to exercise your privilege against self-incrimination.

MR. CAMP: Your Honor, I feel that I should testify so that the Court would know what happened that night due to the circumstances of your decisions on bringing up my past record, I feel it would be prejudiced to the jury and it would just make things a lot worse than what the witnesses already said, and some of their lies that they said, all right?

THE COURT: Well, you certainly have a right to do that and if you're prepared to do that, we'll proceed, because we have the Jury here.

Now, suppose we take a recess then at this time. The State has rested, and we'll resume in about 15 minutes.

[DEFENSE ATTORNEY]: Judge, I think he said he didn't want to testify.

MR. CAMP: No, cause of those reasons.

THE COURT: Well, you see, I can't be your lawyer. You're going to have to decide whether it's in your interest, and you talk it over with your attorney, to testify or not.

[DEFENSE ATTORNEY]: Judge, I think what he said was he wanted to testify, but because of your Honor's ruling that the convictions could come in, he does not want to testify.

THE COURT: I see.

[DEFENSE ATTORNEY]: Is that right, Mr. Camp?

MR. CAMP: Yes.

[PROSECUTOR]: Seems we had a little set comment from Mr. Camp which are grounds for a record on the appeal, your Honor, what his own feelings are to that.

THE COURT: Have what on?

[PROSECUTOR]: I see grounds on the appeal now. He wants to testify, but your Honor has prevented him from testifying because of your rulings. Just seems a little bit of a pat conversation to have a defendant put it on the record that you didn't want him to testify.

THE COURT: I try to apply the law as best as I can. Anything I do will be reviewed, if there's any need for any appeals by either side, that would justify that. It's a personal right to be exercised by the defendant whether he wants to testify or not. And so, again, [defense attorney], tell me, does he want to testify?

[DEFENSE ATTORNEY]: Judge, he does not want to testify, and the reason is as he stated.

THE COURT: All right.

[DEFENSE ATTORNEY]: Is that right, Mr. Camp:

MR. CAMP: Yes.

THE COURT: The State versus Sands hearing, where we had a hearing that pertains to matters covered by Sands--

[DEFENSE ATTORNEY]: Right, Judge.

THE COURT: -- and the result of that ruling, he is now stating that he does not want to testify; is that right?

MR. CAMP: Yes, under the reasons why I gave.

THE COURT: I was misunderstanding you. All right. So, therefore, he's not going to testify, but we're going to do what we can today and have his wife brought down here.

Based upon any fair reading of that exchange, it was obvious that defendant's decision not to testify in his own behalf -- while influenced by the court's ruling after the Sands hearing and perhaps by the attorney's advice concerning the impact of the disclosure of defendant's prior criminal record -- was made knowingly and voluntarily in open court. If his attorney told him he would quit if defendant took the stand, defendant should have been disclosed this to the trial judge. If not raised at trial, then it most certainly should have been raised within five years of the judgment of conviction. We are satisfied that defendant, in consultation with his attorney, made this difficult tactical decision and is now second-guessing that decision. See State v. Bogus, 223 N.J. Super. 409, 426 (App. Div.) certif. denied, 111 N.J. 567 (1988) (where the defendant complained that the trial court failed to advise him of his right not to testify or to explain the consequences his testimony might produce).

Even if we found that the time bar should be relaxed in the interests of justice, we would then be required to decide whether defendant was deprived of effective assistance of counsel. State v. Murray, 162 N.J. 240, 251 (2000). We would be required to "weigh the purposes advanced by the five-year rule against the nature of defendant's claim and the potential harm presumed or realized in determining what, if any relief, should be granted." Ibid.

Defendant makes several arguments regarding the alleged ineffective nature of his trial and appellate counsel. To make the requisite prima facie showing of ineffective assistance, defendant is required to show a "reasonable likelihood of succeeding" under the two-pronged test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

Under the first prong, a defendant must show that trial counsel's representation was deficient. Fritz, supra, 105 N.J. at 52. This showing must overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Ibid. (internal quotation marks omitted). To be deficient, a defendant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687. A "heavy measure of deference" is applied to counsel's judgments. Id. at 691. Additionally, counsel's performance should be judged not in hindsight but from counsel's perspective at the time. Id. at 689.

Under the second prong, defendant must then "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 698 (internal quotation marks omitted). To be prejudicial, the defendant must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687. Generally, prejudice is not presumed. Fritz, supra, 105 N.J. at 63.

The great majority of "errors" asserted by or on behalf of defendant can be attributed to viable trial strategies. As stated in State v. Loftin, "the defendant must overcome a 'strong presumption' that counsel exercised 'reasonable professional' judgment and 'sound trial strategy' in fulfilling his responsibilities." 191 N.J. 172, 198 (2007) (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695).

Except for the bare allegations made in defendant's affidavit, there is no indication that the alleged omissions and errors of trial counsel would have led to a different verdict. Defendant's trial counsel and appellate counsel employed viable strategies. The State presented extensive testimony from co-defendants, expert doctors and lay witnesses, all presenting credible evidence of defendant's guilt. The jury had a full and fair chance to evaluate the evidence and found defendant guilty. No independent or cumulative error by defendant's counsel could have effected this decision.

Because we find no evidence of ineffective assistance of counsel, defendant is not entitled to an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462 (1992) (finding that defendant is entitled to an evidentiary hearing only where he has established a prima facie case of ineffective assistance of counsel).

With respect to defendant's sentencing arguments, his sentence was legal in 1981 when it was imposed. Although subsequent case law has imposed different standards for consecutive sentencing, those cases were not the law in 1981, nor during the pendency of his direct appeal. Defendant's failure to file a timely PCR petition certainly does not extend his pipeline for making arguments that subsequently-decided cases should apply to his sentencing. Therefore, his contentions that the sentence is excessive and illegal, are clearly without merit and do not warrant further discussion in this written opinion. See R. 2:11-3(e)(2).

Affirmed.

 

The indictment named as defendants Leroy Camp and others. Camp was not named in count three.

(continued)

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A-1686-06T4

April 28, 2008