STATE OF NEW JERSEY v. MICHAEL DARBY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4099-06T44099-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL DARBY,

Defendant-Appellant.

________________________________

 

Submitted April 16, 2008 - Decided

Before Judges Cuff and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 91-08-8250-05-I; Accusation No. 91-10-1018-A.

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

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

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant appeals from an order denying his petition for post-conviction relief (PCR). Defendant is serving a life term with a thirty-year period of parole ineligibility for murder, along with a consecutive fifteen-year term for four armed robberies with a five-year period of parole ineligibility. Defendant's conviction was entered on December 9, 1991, following defendant's guilty plea made in accordance with a plea agreement offered by the State. The plea offer combined the four armed robberies and related crimes charged in a twenty-six count indictment, along with an accusation for murder. By accepting the plea agreement, the State agreed to relinquish its request for the death penalty. However, the terms of the agreement left to the court's discretion whether the sentences for the robberies would be served consecutive with or concurrent to the murder sentence.

Defendant argues trial counsel was ineffective and coerced defendant to plead guilty because counsel failed to fully investigate the merits of the State's case. Additionally, defendant raises claims of ineffectiveness against appellate counsel when the Public Defender's Office refused defendant's request to file an appeal. Counsel advised defendant that an appeal was not in his best interest because his plea could be vacated in a capital case, which would expose defendant to the death penalty. See State v. Gibson, 68 N.J. 499, 512 (1975) (citing State v. Rhein, 117 N.J. Super. 112, 121 (App. Div. 1971)) (a defendant who has obtained sentence or charge concessions in consideration of the appeal-waiver would be subject to their revocation, at the option of the State, immediately upon the filing of the appeal).

After reviewing defendant's PCR petition, Judge Geiger found defendant's petition deficient because it was time-barred pursuant to Rule 3:22-12(a) and alternatively, because it lacked substantive merit. The judge did not grant an evidentiary hearing.

On appeal, defendant argues:

POINT I

THE TRIAL COURT COMMITTED ERROR BY DENYING THE [DEFENDANT'S] MOTION FOR POST-CONVICTION RELIEF.

POINT II

EXCUSABLE NEGLECT EXISTED TO OVERCOME THE TIME BAR TO [DEFENDANT'S] MOTION.

In a separate pro se brief, defendant adds the assertion that because the death penalty has been found to be "unconstitutional," the State "held a[n] UNFAIR and UNLAWFUL ADVANTAGE at the trial stage." We affirm.

It is well-settled that post-conviction proceedings are not a substitute for direct appeal. R. 3:22-3. "In the absence of the timely raising of an issue available on direct appeal or a constitutional infringement, relief will be granted in such proceedings only in exceptional circumstances involving a showing of fundamental injustice." State v. Cerbo, 78 N.J. 595, 605 (1979).

The articulated justification for the rigorous five-year time limit for filing PCR petitions, initially set forth in State v. Mitchell, 126 N.J. 565, 575-76 (1992), as well as the bases for relaxation of that time limitation, remains the standard when reviewing PCR applications. Ibid.; see also State v. Murray, 162 N.J. 240, 249 (2000). The five-year time bar should be relaxed only in exceptional circumstances. State v. Afanador, 151 N.J. 41, 52 (1997).

Our review of the record discloses that defendant has failed to allege or establish facts supporting excusable neglect and proffers no exceptional circumstances warranting relaxation of the time bar. We concur with the opinion of Judge Geiger that the petition asserting ineffective assistance of counsel was time-barred under Rule 3:22-12(a) and otherwise failed to establish that 1) counsel's performance was deficient, that is, it fell below an objective standard of reasonableness; and 2) counsel's deficient performance prejudiced the defense, that is, there is a reasonable probability that counsel's errors changed the outcome. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Allah, 170 N.J. 269, 283 (2002).

Alternatively, defendant states he is not seeking to be released from his plea agreement, but challenges the legality of his sentence. Specifically, defendant urges that the decision to run the sentences consecutively was error.

"Generally, a defendant who pleads guilty is prohibited from raising, on appeal, the contention that the State violated his constitutional rights prior to the plea." State v. Crawley, 149 N.J. 310, 316 (1997). "Those constitutional rights include the privilege against compulsory self-incrimination, the right to trial by jury, the right to confront one's accusers, and the right to a speedy trial." Ibid. The Supreme Court has also determined that the tender by the State of sentence and charge concessions in return for a guilty plea may include defendant's waiver of his right to appeal a conviction. Gibson, supra, 68 N.J. at 510. Nevertheless, defendant may file a timely appeal, but the State may move to revoke the plea agreement. Ibid.

The waiver of appeal contained in the plea agreement would not bar a defendant's ability to challenge an illegal sentence. See R. 3:22-12. However, it may be considered to bar an untimely claim of imposition of an excessive sentence. As the Court stated in Gibson, supra:

if the record shows the defendant has pleaded with full understanding of his rights and liabilities, with the advice of counsel, and without compulsion, he will not be heard to complain that his plea was involuntary because "motivated by the defendant's desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged."

[68 N.J. at 509-510 (quoting Brady v. United States, 397 U.S. 742, 751, 90 S. Ct. 1463, 1470, 25 L. Ed. 2d 747 (1970)) (other internal citations omitted).]

We find no occasion to disturb Judge Geiger's denial of defendant's PCR challenge to his sentence. The sentence was neither illegal nor a result of an abuse of discretion. See State v. Roth, 95 N.J. 334, 363 (1984). The sentencing judge fully reviewed the criteria developed in State v. Yarbough, 100 N.J. 627, 643-45 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed 2d 308 (1986), prior to imposing sentence. The determination that the sentences for the four armed robberies should be served concurrently to each other but consecutively to the sentence for murder does not shock the judicial conscience. Roth, supra, 95 N.J. at 364-65.

The remaining arguments advanced by defendant have been considered and we find them without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

 
Affirmed.

(continued)

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A-4099-06T4

May 20, 2008