STATE OF NEW JERSEY v. KEVIN STOUT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0331-06T40331-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN STOUT a/k/a HAROLD FRAZIER,

Defendant-Appellant.

____________________________________________

 

Submitted March 18, 2009 - Decided

Before Judges Fisher and King.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 80-07-1715.

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

Theodore J. Romankow, Union County Pros-ecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel; Kimberly Donnelly, Law Intern, on the brief).

PER CURIAM

Following a trial in 1982, defendant was convicted of first-degree murder, as well as attempted robbery and a weapons offense. He was sentenced to prison for life, subject to a twenty-five year period of parole ineligibility.

Defendant appealed, arguing that his prosecution on the weapons charge was barred by double jeopardy principles, that the admission of the handgun into evidence was unduly prejudicial and deprived him of a fair trial, and that the judge erred in permitting testimony that inferred "defendant was a 'badman' in the eyes of the jury." By way of an unreported opinion, we found insufficient merit in all these arguments to warrant discussion in a written opinion, citing R. 2:11-3(e)(2). No. A-3020-81T4 (App. Div. October 13, 1983).

Defendant filed a motion in 1994 arguing he was entitled to a new trial based upon newly discovered evidence. After hearing the testimony of the witness whose version of the incident formed the basis for defendant's motion, the trial judge denied relief. We affirmed by way of an unpublished opinion substantially for the reasons set forth in the trial judge's oral opinion. No. A-5347-94T4 (App. Div. July 5, 1996).

Defendant filed another motion in 2003, seeking a reconsideration of his sentence in order to permit him to be assigned to a drug rehabilitation program. That motion was denied on October 24, 2003. No appeal was filed.

Defendant filed a petition for post-conviction relief (PCR) on August 8, 2003. The pro se brief filed at that time argued that defendant was denied the effective assistance of counsel because his trial counsel allegedly failed to properly investigate the case; in this regard, defendant alleged "[t]here were witnesses who named other persons as the perpetrators, which counsel failed to present." Defendant also argued that counsel failed to challenge physical and forensic evidence. He claimed, with few specifics, that new fingerprinting and ballistic technology would establish his innocence. Assigned counsel for defendant filed a three-page brief in support of PCR nearly three years after defendant's initial filing.

The PCR judge did not conduct an evidentiary hearing. On July 11, 2006, the judge entered an order denying relief for reasons set forth in a written decision of the same date. Defendant appealed.

During the pendency of the PCR appeal, defendant moved for reconsideration of his sentence pursuant to R. 3:21-10(b)(3). That motion was denied, on November 30, 2007, because the prosecutor did not join in the application. Defendant appealed that order as well.

In appealing the orders of July 11, 2006 and November 30, 2007, defendant presents the following arguments for our consideration:

I. THE LOWER COURT ORDER DENYING PCR MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFEC-TIVE ASSISTANCE OF TRIAL COUNSEL.

A. TRIAL COUNSEL FAILED TO UNDERTAKE AN APPROPRIATE PRETRIAL INVESTIGATION AND FAILED TO CALL CRUCIAL WITNESSES AT TRIAL.

B. TRIAL COUNSEL FAILED TO CHALLENGE THE PHYSICAL EVIDENCE ADMITTED AT TRIAL.

II. THE LOWER COURT ORDER DENYING PCR MUST BE REVERSED SINCE THE LATENT FINGERPRINTS RECOVERED FROM THE CRIME SCENE WERE NEVER TESTED WITH NEWLY DEVELOPED TECHNOLOGY.

III. THE LOWER COURT ORDER DENYING PCR MUST BE REVERSED SINCE THE GUN AND CARTRIDDGES [SIC] RECOVERED FROM DEFENDANT WERE NEVER TESTED WITH NEWLY DEVELOPED TECHNOLOGY.

IV. DEFENDANT RECEIVED INEFFECTIVE ASSIS-TANCE OF COUNSEL ON THE PETITION FOR POST-CONVICTION RELIEF DUE TO THE UNAVAILABILITY OF TRIAL TRANSCRIPTS AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED (NOT PRESENTED BELOW).

V. THE LOWER COURT ORDER DENYING PCR MUST BE REVERSED SINCE THE FIVE-YEAR TIME BAR SHOULD NOT HAVE BEEN APPLIED TO BAR DEFENDANT'S CLAIMS.

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

VII. THE LOWER COURT ORDER DENYING RECON-SIDERATION OF THE SENTENCE MUST BE REVERSED SINCE THE STATE'S WITHHOLDING OF CONSENT TO HAVE THE MOTION HEARD WAS ARBITRARY AND CAPRICIOUS.

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 brief comments regarding defendant's appeal of the denial of his PCR petition.

The judge denied defendant's PCR petition because he found it was filed beyond the time permitted by rule. With the exception of the authority to correct an illegal sentence, all PCR claims must be filed within five years of the judgment or sentence unless there is proof of excusable neglect. R. 3:22-12. See also State v. D.D.M., 140 N.J. 83, 97 (1995); State v. Dillard, 208 N.J. Super. 722 (App. Div.), certif. denied, 105 N.J. 527 (1986).

Excusable neglect can be proven by a showing of "exceptional circumstances," including the presentation of a "serious question about [petitioner's] guilt." State v. Mitchell, 126 N.J. 565, 580 (1992). In such circumstances, a court

should consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an "injustice" sufficient to relax the time limits. As we have made clear, the longer the time-span since the original trial, the more difficult a retrial becomes. Absent compelling, extenuating circumstances, the burden of justifying a petition filed after the five-year period will increase with the extent of the delay. The prejudice to the State's ability to litigate the case after a long delay is also relevant. If the key witnesses are unlikely to be available, evidence has disappeared, or other obstacles are present, allowing the petition for post-conviction relief will unduly prejudice the State's ability to bring its case.

[Ibid.]

With this as a guideline, we agree with the PCR judge that defendant failed to present exceptional circumstances for relaxing the five-year time-bar. Indeed, as the PCR judge recognized, the amount of time that passed since the expiration of the five-year period is certainly relevant. Here, defendant filed this PCR petition over twenty years after his conviction and has presented no adequate circumstances to justify his delay.

In seeking relief from the time-bar, defendant asserts that it is not always clear to a layman when he has been deprived of the effective assistance of counsel. That may, at times, be true but here defendant chiefly argues that his trial counsel failed to call witnesses that allegedly could have inculpated other suspects and, thus, exonerated him. As the PCR judge properly recognized, a layman "would take less than twenty years to recognize that something of this import was amiss." We agree that the record fully establishes defendant's long-held knowledge of the circumstances regarding these other witnesses that would preclude a finding of excusable neglect in the face of his failure to seek post-conviction relief for more than twenty years.

We also find no merit in defendant's argument that modern ballistics and fingerprint technologies should now be used to retest the forensic evidence used against him. Certainly, the revelation of new technology could justify the late filing of a PCR petition; however, defendant has failed to demonstrate how this technology could assist his case. He suggests only possibilities. We, thus, agree with the PCR judge that "no evidence [was] adduced regarding . . . how the advance of forensic science would benefit" defendant in this case.

Affirmed.

It is noteworthy that defendant made a similar allegation when he unsuccessfully moved for a new trial in 1996.

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A-0331-06T4

March 30, 2009