STATE OF NEW JERSEY v. WILLIE GOODMAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0332-06T40332-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIE GOODMAN,

Defendant-Appellant.

____________________________________

 

Submitted October 20, 2008 - Decided

Before Judges Reisner and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 89-03-0383.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jane M. Personette, Designated Counsel, on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Willie Goodman appeals from the June 9, 2006 order denying his petition for post-conviction relief (PCR) and from the August 11, 2006 order denying his petition for reconsideration. We affirm.

In October 1991, following a jury trial on a multi-count indictment, defendant was convicted of third-degree conspiracy to commit terroristic threats, N.J.S.A. 2C:5-2 (Count 1); third-degree witness tampering, N.J.S.A. 2C:28-5(a)(1) (Count 14); and third-degree hindering apprehension, N.J.S.A. 2C:29-3(a)(3) (Count 15). Defendant received an aggregate custodial sentence of ten years with a five-year period of parole ineligibility. On direct appeal, we affirmed. State v. Willie Goodman, Docket No. A-3695-91T4 (App. Div. February 28, 1995) (slip op. at 20). The Supreme Court denied defendant's petition for certification. State v. Goodman, 142 N.J. 514 (1995). On February 17, 1999, defendant moved for a new trial. The trial court denied defendant's motion and we affirmed the trial court decision on appeal. State v. Goodman, Docket No. A-2584-99T4 (App. Div. February 26, 2001) (slip op. at 1). On November 5, 2001, the Supreme Court denied defendant's petition for certification.

On September 9, 2004, defendant filed a pro se petition of writ of error coram nobis before the United States District Court, which dismissed the petition as not properly before it. Thereafter, defendant filed a similar petition in Superior Court, which the court treated as a petition for post-conviction relief. The court assigned post-conviction relief counsel, and defendant's attorney filed an amended petition and supplemental brief on defendant's behalf. On June 9, 2006, following a hearing, the court granted the State's motion to dismiss the petition on the basis that the petition was procedurally barred pursuant to Rule 3:22-5 and -12. The court subsequently denied defendant's motion for reconsideration. The present appeal followed.

On appeal, defendant, through appellate counsel, raises the following points for our consideration:

POINT I

THE COURT BELOW ERRED IN FAILING TO ORDER AN EVIDENTIARY HEARING AS DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

[POINT A]

TRIAL COUNSEL'S FAILURE TO INVESTIGATE DEFENDANT'S ALIBI WITNESS CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

[POINT B]

TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO UTILIZE IMPEACHMENT EVIDENCE WHICH WOULD HAVE TOTALLY DISCREDITED THE STATE'S SOLE WITNESS AGAINST DEFENDANT.

[POINT C]

THE FACIALLY CONTRADICTORY NATURE OF [BEN] BAILEY'S STATEMENTS, WHEN VIEWED IN LIGHT OF THE UNUTILIZED IMPEACHMENT EVIDENCE, MAKES THE CONVICTION UNREASONABLE.

[POINT D]

COUNSEL ON MOTION FOR A NEW TRIAL PROVIDED INEFFECTIVE ASSISTANCE BY FAILING TO UTILIZE AND MARSHAL ALL THE EVIDENCE PROVIDED TO HER.

POINT II

DEFENDANT'S SIXTH AMENDMENT RIGHT TO A FAIR TRIAL WAS VIOLATED BECAUSE COUNT I OF THE INDICTMENT CONSTIT[]UTED A DUPLICITOUS CHARGE.

POINT III

NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.

POINT IV

THE COURT BELOW ERRED IN DENYING DEFENDANT'S MOTION FOR RECONSIDERATION OF DENIAL OF PCR WHEREIN DEFENDANT CHALLENGED HIS SENTENCE AS A PERSISTENT OFFENDER.

POINT V

DEFENDANT'S PETITION FOR PCR SHOULD NOT BE BARRED BY PROCEDURAL CONSIDERATIONS.

Additionally, the following points were raised in defendant's pro se amended supplemental brief:

POINT I

DID THE LOWER COURT ERR[] IN NOT ORDERING AN EVIDENTIARY HEARIN[G] TO DETERMINE WHETHER DEFENDANT'S TRIAL COUNSEL WAS INEFFECTIVE FOR NOT CALLING AN ALIBI WITNESS?

[POINT A]

IS THE WRIT OF CORAM NOBIS OBSOLETE IN THE STATE OF NEW JERSEY?

[POINT B]

SHOULD THE LOWER COURT USE THE 5[-]PRONG TEST TO DETERMINE INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO SECURE ATTENDANCE OF A WITNESS?

[POINT C]

DOES THE DEFENDANT SATISFY THE 3[-]PRONG TEST PROVIDE[D] BY STATE V. MARSHALL?

[POINT D]

WAS DEFENDANT'S SIXTH AMENDMENT RIGHT TO A FAIR TR[IA]L VIOLATED BECAUSE COUNT 1 OF THE INDICTMENT WAS DUPLICITOUS?

After analyzing the record in light of the written arguments advanced by the parties, we conclude that the issues presented by defendant are without sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(2), and we affirm substantially for the reasons articulated by Judge Edward Neafsey in his oral opinion delivered on June 9, 2006. We add the following comments.

Under Rule 3:22-12(a), no petition for post-conviction relief "shall be filed . . . more than five 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." This rule recognizes that the "necessity for preserving finality and certainty of judgments increases" as time begins to elapse. State v. Afanador, 151 N.J. 41, 52 (1997). Thus, as time passes, a presumption of correctness attaches to a judgment that will only be overcome where "compelling, extenuating circumstances" are demonstrated. State v. Mitchell, 126 N.J. 565, 580 (1992). The five-year period is calculated from the date of the entry of judgment, which in this case was February 10, 1992. Here, defendant's writ of error coram nobis, which the court treated as his PCR petition, was not filed until January 7, 2005, nearly thirteen years later. Moreover, defendant's claimed ignorance of court rules, the fact that the delay was also occasioned by his writ of error coram nobis filed in federal court and his ignorance of the viability of his claim, were properly rejected by the trial court. See State v. Merola, 365 N.J. Super. 203, 217-18 (Law Div. 2002) (rejecting the defendant's contention that he "did not have a grasp of the legal significance of the direct constitutional claims"), aff'd, 365 N.J. Super. 82 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); see also, State v. Milne, 178 N.J. 486, 494 (2004). Further, any retrial would unquestionably be prejudicial to the State for an offense that occurred twenty years ago.

Additionally, as to defendant's claim that his trial counsel failed to sufficiently argue for the admissibility of impeachment evidence against the State's chief fact witness, failed to "utilize and marshal all the evidence provided" in arguing the new trial motion, and that the charges in the indictment were duplicitous, the trial court found that these contentions had previously been addressed on direct appeal and were thus subject to Rule 3:22-5, which bars consideration through a PCR petition, any matter that has been the subject of "[a] prior adjudication upon the merits[.]" See State v. Harris, 181 N.J. 391, 494 (2004), cert. denied, sub nom, Harris v. New Jersey, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We agree.

Nor do we discern, from our careful review of the record, that defendant has presented any compelling reason to relax this rule. Defendant raises no constitutional issue that is of substantial import. State v. Milne, supra, 178 N.J. at 495; see also State v. Johns, 111 N.J. Super. 574, 576 (App. Div. 1970), certif. denied, 60 N.J. 467, cert. denied, sub nom, Johns v. New Jersey, 409 U.S. 1026, 93 S. Ct. 473, 34 L. Ed. 29, 319 (1972).

Finally, although the trial judge found that defendant's PCR petition was procedurally barred under Rule 3:22-12(a) and Rule 3:22-5, he nevertheless reviewed defendant's substantive claims of ineffective assistance of counsel and rejected them for the reasons stated in his June 9, 2006 oral opinion. We have also reviewed defendant's arguments and considered the submissions in light of the record and applicable law. The record fully supports Judge Neafsey's findings and conclusions. Likewise, Judge Neafsey properly denied defendant's motion for reconsideration as lacking in merit.

Affirmed.

 

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A-0332-06T4

March 31, 2009