STATE OF NEW JERSEY v. KIMBERLY SIMMONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5234-05T45234-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KIMBERLY SIMMONS,

Defendant-Appellant.

______________________________________________

 

Submitted November 28, 2007 - Decided -

Before Judges Cuff and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 97-09-03950.

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

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Maryann K. Lynch, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Kimberly Simmons appeals from the denial of her petition for post-conviction relief (PCR). She asserts the judge erred by applying Rule 3:22-12 to bar her PCR application that alleged ineffective assistance of trial and appellate counsel. On appeal, she adds that PCR counsel, too, was ineffective. We find no error in the denial of the PCR petition as time barred pursuant to Rule 3:22-12(a). Further, we reject the contention that PCR counsel was ineffective. Accordingly, we affirm.

Defendant was identified by John Thomas as the perpetrator in the shooting death of DeAndre Hawkins, which occurred during an illicit drug transaction. Following a jury trial, defendant was convicted of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), (a lesser included offense to the murder charge), third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a).

Defendant was sentenced on January 4, 1999. On the manslaughter charge, the court imposed a twenty-two-year term of imprisonment, with an eighty-five percent period of parole ineligibility under the "No Early Release Act," N.J.S.A. 2C:43-7.2. A concurrent five-year term of incarceration was ordered on the third-degree weapons offense.

We affirmed defendant's conviction and sentence in an unpublished opinion. State v. Simmons, No. A-3213-98 (App. Div. Nov. 6, 2000). The record does not reflect defendant sought certification.

Defendant filed her PCR on April 12, 2005. Defendant's certification is dated May 19, 2004; however, the PCR application was not filed until April 12, 2005. Thereafter, defendant was assigned counsel, who filed a supplemental letter brief on her behalf. Without granting an evidentiary hearing, Judge Merkelbach denied defendant's petition, setting forth his reasons in an oral decision rendered on April 25, 2006. This appeal followed.

Defendant presents these arguments for our consideration:

POINT I.

BECAUSE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL, APPELLATE AND POST-CONVICTION RELIEF COUNSELS HER PETITION SHOULD BE GRANTED AND HER CONVICTION REVERSED OR THE MATTER SHOULD BE REMANDED FOR A NEW POST-CONVICTION HEARING AND NEW COUNSEL SHOULD BE ASSIGNED. (PARTIALLY RAISED BELOW).

POINT II.

THE LOWER COURT ERRED IN FINDING THE FIVE YEARS TIME BAR OF R. 3:22-12 APPLIED HERE AS THE NEGLECT WAS EXCUSABLE AND EXCEPTIONAL CIRCUMSTANCES; R. 1:1-2, ALSO WARRANT RELAXATION OF THE RULE.

Rule 3:22-12(a) requires that PCR applications shall be filed no more than five years following entry of the judgment of conviction or the time of sentencing, whichever the defendant is challenging. State v. Goodwin, 173 N.J. 583, 594 (2002). "In the context of post-conviction relief, a court should only relax the bar of Rule 3:22-12 under exceptional circumstances."
State v. Afanador, 151 N.J. 41, 52 (1997). Justice Garibaldi expressed the justification for maintaining the integrity of the limitation in State v. Mitchell, 126 N.J. 565, 575-76 (1992):

As time passes after conviction, the difficulties associated with a 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. Those difficulties have not gone unnoticed by our courts. See, e.g., State v. Dillard, 208 N.J. Super. 722, 727 (App. Div.) ("with the passage of time it may become more difficult to rule upon the allegations in a petition for post-conviction relief * * *."), certif. denied, 105 N.J. 527 (1986); State v. Marshall, 244 N.J. Super. 60, 69 (Law Div. 1990) (faced with the potential prospect of evaluating the constitutionality of a twenty-two-year-old conviction, "it would be a practical impossibility * * * to conduct a proper hearing"). 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 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 justice.

Defendant argues her untimely submission should be allowed because the "facts show[] that the delay resulted from excusable neglect." R. 3:22-12(a). Defendant also argues that Rule 1:1-2 permits relaxation.

After her conviction and sentence were affirmed, defendant certified that she sent letters seeking additional representation to the Office of the Public Defender in 2002 and 2003. Her inquiries went unanswered. In January 2004, defendant sought the assistance of a prisoner in another facility. Although defendant's certification and petition reflect they were signed approximately four months after the five-year deadline, the pleadings were not filed for another thirteen months. Defendant offers no explanation for the additional delay from preparation to filing.

After consideration, we are not persuaded that these facts justify relaxation of the procedural bar, nor do the "interests of justice" demand relaxation. State v. Milne, 178 N.J. 486, 492 (2004). "Rule 1:1-2 was not intended to vitiate the rules from which it permitted exceptional relief." Mitchell, supra, 126 N.J. at 579.

Although we dispose of this appeal solely on procedural grounds, we comment briefly on the merits of defendant's claims, which we reviewed in the context of determining whether the interests of justice warrant a relaxation of the procedural time bar. State v. Preciose, 129 N.J. 451, 477-78 (1992).

Defendant argues that the performance of her trial and appellant attorneys was so deficient that they were "not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); United States v. Cronic, 466 U.S. 648, 657-58, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). "The burden to prove that [the] incompetence of counsel had a prejudicial effect upon the outcome of the proceeding is squarely on the defendant." State v. Paige, 256 N.J. Super. 362, 377 (App. Div.), certif. denied, 130 N.J. 17 (1992). As noted in Strickland:

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

[Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (internal citation omitted).]

Defendant bottoms her assertions of trial counsel's ineffectiveness on his failure to request a Wade hearing and a Kociolek charge. Appellate counsel's ineffectiveness flows from the fact that these challenges could have been raised on appeal, but were not.

John Thomas, an eye witness, provided a physical description of defendant on the evening of the shooting. The next day, after reviewing approximately four hundred computer photographs, Thomas identified defendant as the woman who shot Hawkins. Additionally, he provided an in-court identification of defendant.

Defendant challenges Thomas's opportunity to make the identification. She suggests the totality of the circumstances presents "ample evidence that the identification itself does not possess sufficient 'indicia of reliability' to outweigh the possible corrupting influence of a suggestive identification procedure." Manson v. Braithwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977). We reject defendant's contention.

First, defendant's argument does not present issues properly reviewable in a Wade hearing. Moreover, defendant presents no evidence of impermissible suggestiveness in the out-of-court identification process.

Defendant's second cited instance of ineffective assistance states that counsel failed to request a jury instruction advising the jury to decide whether any oral statement attributed to defendant was actually made by her. Kociolek, supra, 23 N.J. at 406; see also State v. Jordan, 147 N.J. 409, 428 (1997) (A Kociolek charge providing that oral statements should be viewed with caution because recognized risk of error in communication and recollection of verbal statements by the hearer should be given whether requested or not). Defendant's reference relates to police testimony that repeated defendant's varying responses to questions regarding her whereabouts on the evening of the shooting.

The failure to give a Kociolek charge is not grounds for reversal of defendant's conviction. Jordan, supra, 147 N.J. at 425-26. Here, defendant's exculpatory statements to police, relating her whereabouts, were not crucial to prove the State's case. Substantial additional evidence, including Thomas's eye witness account of the shooting, established defendant's guilt. And, the court's general charge on credibility applied to the officer who recounted his recollection of defendant's statements. After review, we determine that the failure to give the Kociolek charge did not have the capacity to bring about an unjust result warranting a new trial. R. 2:10-2; Jordan, supra, 147 N.J. at 428.

On these two issues, we determine defendant failed to satisfy the second prong of the Strickland/Fritz test to establish ineffective assistance of trial or appellate counsel. Accordingly, we conclude defendant has not shown "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Marshall, 148 N.J. 89, 157 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

We turn to the recent challenge to the representation provided by PCR counsel. PCR counsel argued that neither trial nor appellate counsel presented evidence to support defendant was a drug user, a fact that "may have related a defense of diminished capacity, intoxication, or insanity or it may have impacted whether what [defendant] said to the police followed a knowing, intelligent waiver of her rights." Defendant notes her PCR petition was denied because PCR counsel included no evidence to support this proposition. Thus, PCR counsel was ineffective.

In this appeal, defendant makes her claim but fails to support it. A defendant's "bald assertions" that counsel was ineffective will not sufficiently satisfy defendant's prima facie burden; the defendant must allege specific facts demonstrating the deficient performance. State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Additionally, we note that on direct appeal defendant argued, and we rejected, that the "her admission to the detectives that she was a drug user should have alerted them that she may have lacked the capacity to understand and knowingly waive her right to remain silent." The current argument is a restatement of the argument presented and rejected on appeal. Our prior determination remains conclusive. R. 3:22-5.

We determine Judge Merkelbach thoroughly reviewed the substantive arguments presented in defendant's PCR petition. He concluded that defendant's claims were procedurally barred by Rule 3:22-12(a). Nevertheless, he reviewed the substantive claims of ineffective assistance of counsel and rejected them for the reasons stated in his April 25, 2006 oral opinion. We, too, have reviewed defendant's arguments and considered the submissions in light of the record and applicable law. The record fully supports Judge Merkelbach's findings and conclusions. Also, for the reasons stated, we reject defendant's newly advanced arguments that PCR counsel was ineffective.

Affirmed.

 

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926,
18 L. Ed. 2d 1149 (1967).

State v. Kociolek, 23 N.J. 400 (1957).

(continued)

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A-5234-05T4

February 20, 2008