STATE OF NEW JERSEY v. DARREN F. McGHEE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0243-05T40243-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARREN F. McGHEE,

Defendant-Appellant.

___________________________________________

 

Submitted December 17, 2008 - Decided

Before Judges Fisher and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 94-04-0518.

Darren F. McGhee, appellant pro se.

Bruce J. Kaplan, Middlesex County Pro-secutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In appealing the denial of his petition for post-conviction relief, defendant would again have us consider whether his trial should have been barred by the Interstate Agreement on Detainers Act (IAD), N.J.S.A. 2A:159A-1 to -6. Because we previously rejected the identical or substantially equivalent argument on direct appeal, we conclude that the matter may not now be revisited. Accordingly, we affirm the order denying defendant's petition for post-conviction relief.

In this matter (sometimes referred to as the "Middlesex County matter"), defendant was charged with seven offenses arising from his attempts to use credit cards belonging to others, namely: third-degree attempted theft by deception (count one), N.J.S.A. 2C:20-4; two counts of third-degree fraudulent use of a credit card (counts two and five), N.J.S.A. 2C:21-6(h); two counts of fourth-degree forgery (counts three and six), N.J.S.A. 2C:21-1(a)(2); and two counts of fourth-degree uttering a forged instrument (counts four and seven), N.J.S.A. 2C:21-1(a)(3).

Counts two and five were dismissed prior to trial. At the conclusion of the trial, the jury found defendant guilty of counts one, three and four, and not guilty on counts six and seven. The judge merged the convictions on counts three and four into the conviction on count one, and sentenced defendant to a five-year prison term to run consecutively to a federal sentence defendant was then serving, but concurrently with a sentence imposed a month earlier in a Union County matter.

Defendant filed an appeal, seeking reversal of his convictions in this matter as well as his convictions in the Union County matter. We vacated the convictions on counts three and four due to a lack of sufficient evidence. However, we affirmed the conviction on count one and remanded for the entry of an amended judgment of conviction. State v. McGhee, No. A-928-99T4 (App. Div. July 3, 2001). The Supreme Court denied defendant's petition for certification, 170 N.J. 207 (2001), and the Supreme Court of the United States denied defendant's petition for a writ of certiorari, McGhee v. New Jersey, 537 U.S. 839, 123 S. Ct. 157, 154 L. Ed. 2d 61 (2002).

In October 2003, defendant filed a petition for post-conviction relief, which was denied by the trial court on June 22, 2005. Defendant then filed a timely appeal, raising the following arguments for our consideration:

I. PETITIONER WAS DENIED DUE PROCESS AND FAIR WARNING WHEN THE TRIAL AND APPELLATE COURTS APPLIED AN UNFORESEEABLE RETROACTIVE CONSTRUCTION OF THE [IAD's] ARTICLE VI(a) TO SUSTAIN THE PROSECUTION OF PETITIONER AND AFFIRM HIS CONVICTION.

II. THE STATE'S FAILURE TO DEMONSTRATE A DILIGENT, GOOD-FAITH EFFORT TO TIMELY BRING PETITIONER TO TRIAL IN VIOLATION OF SMITH V. HOOEY, 393 U.S. 374[, 89 S. Ct. 575, 21 L. Ed. 2d 607] (1969), MANDATES VACATION OF THE CONVICTION AND DISMISSAL OF THE INDICTMENT WITH PREJUDICE.

III. PROSECUTOR'S EXPLICIT SCHEDULING AND AGREEMENT FOR TRIAL ON APRIL 7, 1998, BARRED ARGUMENT AND THE COURTS' DE NOVO FINDINGS THAT PETITIONER WAS UNAVAILABLE FOR TRIAL PRIOR TO THAT DATE.

IV. PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL, APPELLATE AND PCR COUNSEL (NOT RAISED BELOW).

V. PROCEDURAL BAR AGAINST POST-CONVICTION RELIEF DOES NOT APPLY.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.

Defendant's chief argument in this appeal of the denial of post-conviction relief centers on his contention that we misapprehended or mistakenly rejected the argument in his direct appeal that the trial should have been barred by the IAD. Because "[a] prior adjudication upon the merits of any ground for relief is conclusive" of any attempt to further litigate that issue by way of application for post-conviction relief, R. 3:22-5, we reject defendant's attempt to relitigate the application of the IAD to his prosecution in this matter.

The IAD was designed to provide individuals, who have begun a term of imprisonment in one state, the opportunity to obtain a speedy resolution of any untried indictment, information or complaint pending in another state. N.J.S.A. 2A:159A-3(a). See Carchman v. Nash, 473 U.S. 716, 731 n.10, 105 S. Ct. 3401, 3409 n.10, 87 L. Ed. 2d 516, 527 n.10 (1985); State v. Binn, 208 N.J. Super. 443, 448-49 (App. Div.), certif. denied, 104 N.J. 471 (1986). Upon notification from the individual, a state must bring the individual to trial within 180 days, although the time period may be enlarged for "good cause." N.J.S.A. 2A:159A-3(a). See also State v. Binn, supra, 208 N.J. Super. at 449; State v. Buhl, 269 N.J. Super. 344, 357 (App. Div.), certif. denied, 135 N.J. 468 (1994). The statutory time frame is also "tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter." N.J.S.A. 2A:159A-6(a). Tolling may occur, for example, when the individual is unrepresented and until such time as counsel is either appointed or retained or until defendant waives his right to counsel. See State v. Miller, 299 N.J. Super. 387, 396 (App. Div.), certif. denied, 151 N.J. 464 (1997); State v. Millett, 272 N.J. Super. 68, 104-05 (App. Div. 1994).

In his direct appeal, defendant argued among other things that the indictment in this matter should have been dismissed because he was not tried within the 180 days mandated by the IAD. Defendant asserted that he was an inmate of the federal prison in Loretto, Pennsylvania (Loretto) when he made a demand pursuant to the IAD to be tried in the matter at hand as well as the Union County matter. Defendant claimed in his direct appeal that the trial judge erroneously refused to dismiss the indictment in this case pursuant to the IAD. We rejected this argument by way of our July 3, 2001 unpublished opinion.

On that earlier occasion, we first ascertained when the 180-day period commenced, and provided the following description of what the record revealed on that point:

. . . Defendant completed the appro-priate statutory forms on January 20, 1998, indicating that his attorney was Paul W. Bergrin, Esq. His request was received in Union County and Middlesex County on February 13, 1998. Ordinarily, the 180-day period would begin to run on that date. N.J.S.A. 2A:159A-3(a). However, the record furnished us [with regard to] the Middlesex County indictment includes a letter from the Federal Bureau of Prisons, dated February 25, 1998, advising Sergeant Richard D. Scott of the Middlesex County Prosecutor's Office that defendant had been "temporarily transferred" from [Loretto] where he had been incarcerated. The transfer was pursuant to a "Federal Writ of Habeas Corpus." The letter further stated that his date of return was unknown and that Scott would be notified upon defendant's return "in order that arrangements can be made to schedule his temporary transfer to Middlesex County" pursuant to IAD. On August 27, 1998, Scott was advised that defendant had returned to Loretto and was available for a temporary transfer to Middlesex County. . . .

Defendant initially had been sent from Loretto to Brooklyn, New York. According to defendant, he went to Brooklyn to "look at a photo lineup of some individuals that had taken some money from [him]." He was then sent to Florida to testify on a post-conviction hearing regarding legal repre-sentation for his appeal of his conviction there. In addition, for some reasons undis-closed in the record, he was in Passaic County for approximately one month. Relying upon United States v. Mason, 372 F. Supp. 651 (N.D. Ohio 1973), defendant contends that the 180-day period continued to run even though he had been transferred to various institutions. We disagree.

In Mason, after defendant had served his request, defendant was released from imprisonment in Ohio on parole and returned to Michigan to serve the balance remaining on his sentence there. The [c]ourt held that the Assistant United States Attorney, upon whom the request for disposition of the untried indictment had been made, was obligated to locate defendant if it found that he was no longer under the jurisdiction of the original sending state. Here, unlike Mason, defendant was not transferred from one state to another after expiration of his sentence. Defendant had been sent to other jurisdictions for reasons undisclosed to the Union County Prosecutor and the Middlesex County Prosecutor. In addition, they had been told they would be advised when defendant returned to Loretto. Considering the totality of the circumstances, we conclude that the 180-day period did not begin to run until Middlesex County and Union County were advised, on August 27, 1998, that defendant had been returned to Loretto. Defendant's trial in Union County began on January 25, 1999, and concluded on January 28, 1999, well within the 180-day period. Accordingly, the Union County court did not mistakenly exercise its discretion in denying defendant's motion raised prior to trial, and renewed prior to sentence.

[State v. McGhee, supra, slip op. at 13-15.]

We then observed that the trial in this matter commenced on April 28, 1999 and concluded on April 30, 1999. Recognizing that this trial took place nearly sixty days after the expiration of the 180-day period, we ascertained whether the statutory time period was tolled or whether defendant was unable to stand trial for any portion of that period of time:

. . . As previously noted, the Union County trial took four days. The statutory time period was tolled while he was on trial in Union County. Miller, supra, 299 N.J. Super. at 396. Furthermore, when defendant initially appeared in Middlesex County on December 3, 1998, he insisted that Bergrin represent[] him. Neither Bergrin nor any member of his firm appeared. His next appearance was on January 11, 1999. Defendant was represented by Richard Barker, Esq., of the Public Defender's Office. A person who was identified in the record only as Ms. Arik [assumed by the court to be the judge's team leader] advised the judge that she had telephoned Bergrin's office and was advised by his associate, Arlindo B. Araujo that his firm did not represent defendant in Middlesex County. Understandably, Barker was reluctant to represent defendant in light of defendant's understanding that Bergrin re-presented him. In addition, Barker had a letter from Bergrin asserting that he had been retained by defendant's family to represent him in Middlesex County. Barker suggested the case be continued to February 8, 1999, in order to resolve the issue of representation.

Araujo appeared on February 8, 1999, acknowledged receipt of discovery, but indicated two items were missing and asked for a continuance in order to receive the missing discovery prior to execution of a pre-trial memorandum. The judge granted the request and adjourned the pre-trial con-ference to February 22, 1999. On that date, defendant rejected the State's plea offer and the case was set for trial for June 1, 1999, with the understanding that it would be tried earlier if the judge's calendar "open[ed] up." As previously noted, the trial began on April 28, 1999. Under these circumstances we conclude that the 180-day period was tolled from December 3, 1998, when defendant first appeared in Middlesex County, through February 22, 1999, when the case was placed on the trial list. After all, there was a substantial question as to who represented defendant. When counsel finally appeared, it was he who asked for the continuance. A reasonable construction of N.J.S.A. 2A:159A-6(a) compels the conclusion that defendant was unable to stand trial during this eighty-two-day period. State v. Millett, supra, 272 N.J. Super. at 106. Moreover, there is no indication that the prosecutor was dilatory or was frustrating the purposes of the IAD. Nor is there any showing that defendant was prejudiced by the delay. State v. Cook, 330 N.J. Super. 395, 413 (App. Div. 2000); State v. Millett, supra, 272 N.J. Super. at 107. The judge did not mistakenly exercise her discretion in denying defendant's motion to dismiss the Middlesex County indictment.

[Id. at 15-17 (footnote omitted).]

Following defendant's unsuccessful attempts to seek further review, defendant filed a post-conviction relief petition that challenged the factual and legal bases for our decision on direct appeal. The PCR judge held that Rule 3:22-5 prevented him from considering or assessing the accuracy of the factual statements contained in our earlier opinion or the legal sufficiency of the conclusions we then reached. The PCR judge's interpretation of Rule 3:22-5 and his application of the rule to defendant's arguments were correct. Prior adjudication of an issue, particularly when decided on direct appeal, bars consideration of the identical or substantially equivalent argument by way of a petition for post-conviction relief. See, e.g., State v. Marshall, 173 N.J. 343, 350-53 (2002).

Affirmed.

 

Although entitled to counsel in this appeal of the denial of post-conviction relief, defendant moved to proceed pro se. We remanded to the trial court for a hearing pursuant to State v. Reddish, 181 N.J. 553 (2004), to examine the voluntariness of the waiver of appellate counsel. By way of a thorough and well-reasoned written decision, the judge determined that the waiver was knowing and voluntary.

(continued)

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A-0243-05T4

January 13, 2009