STATE OF NEW JERSEY v. PAUL RAPPISI, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0968-07T40968-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PAUL RAPPISI, JR.,

Defendant-Appellant.

______________________________________________________

 

Submitted September 22, 2009 - Decided

Before Judges Wefing and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 94-04-0524.

Paul Rappisi, Jr., appellant pro se.

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Paul Rappisi appeals pro se from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. He raises the following points on appeal:

POINT 1

TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, WHERE TRIAL COURT DID NOT SET FORTH ANY FINDINGS OF FACT OR CONCLUSIONS OF LAW AS REQUIRED BY RULE 1:7-4; 3:22-11.

POINT 2

THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION. (Not Raised Below)

POINT 3

THE TRIAL COURT ERRED BECAUSE DEFENDANT'S TAPE-RECORDED STATEMENT SHOULD HAVE BEEN SUPPRESSED ON THE GROUND THE STATEMENTS IT CONTAINED WERE NOT VOLUNTARY AND WERE OBTAINED ONLY AFTER DEFENDANT'S WILL WAS OVERBORNE.

POINT 4

THE TRIAL COURT ERRED FOR FAILING TO CONDUCT A PLENARY HEARING AS TO THE LEGAL VOLUNTARINESS OF THE STATEMENTS MADE TO THE CO-DEFENDANT WHILE HE WAS ACTING AS AN AGENT FOR THE STATE.

POINT 5

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL; APPELLATE COUNSEL; AND PREVIOUS POST CONVICTION RELIEF COUNSEL(S) IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS

A. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

B. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

C. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF PREVIOUS POST CONVICITION RELIEF COUNSEL(S).

In a supplemental brief, defendant raises the following points:

POINT 1

SINCE THE TRIAL COURT DID NOT RELY UPON THE TIME BAR WHEN IT DISMISSED THE PETITION, DEFENDANT'S ISSUES SHOULD NOT BE PROCEDURALLY BARRED; EVEN IF DEFENDANT'S PETITON FOR POST-CONVICITON RELIEF WAS UNTIMELY, HIS RELIANCE ON RULE 1:1-2 AND RULE 3:22-4(b) OVERCOMES THE FIVE-YEAR TIME LIMIT OF RULE 3:22-12.

POINT 2

TRIAL COURT ERRED FOR FAILING TO DETERMINE WHETHER ANY OF THE RELEVANT EXCEPTIONS TO RULE 1:1-2 AND RULE 3:22-4 WAS [sic] APPLICABLE.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

In 1995, following a jury trial at which he was convicted of felony murder and a string of first- and second-degree robberies, defendant was sentenced to an aggregate term of fifty-five years in prison, including a thirty-year period of parole ineligibility. We affirmed defendant's conviction and sentence on direct appeal. State v. Rappisi, No. A-102-96 (App. Div. April 12, 2000)(slip op. at 2). His petition for certification was denied by the Supreme Court. 165 N.J. 678 (2000).

Defendant's first four PCR petitions were all denied. In rapid succession during the months of March and May 2007, defendant filed three more PCR petitions. On August 31, 2007, the PCR judge, who was also the trial judge, denied all three applications "for the same reasons set forth in the Court's previous rulings . . . ." In three letters sent to the judge, defendant apparently requested reconsideration. On September 7, 2007, the judge advised defendant that "[t]hese letters merely rehash the issues you had the opportunity to raise during your . . . hearing on August 28, 2007." The judge found "this recent submittal [wa]s a duplication of [defendant's] prior Post Conviction Relief motions." He denied the request for reconsideration, and this appeal followed.

All of the points defendant now raises before us are procedurally barred. Rule 3:22-4 prevents a defendant from raising issues in a PCR petition that could have been raised on direct appeal. There are three narrow exceptions to this general exclusion: "(a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey." Ibid.

Additionally, Rule 3:22-5 provides that "[a] prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule . . ., or in any appeal taken from such proceedings." Ibid.

Obviously, defendant's claim in Point 2 regarding a single comment made by the prosecutor in summation could have been raised on direct appeal, but was not. Moreover, the allegedly offending comment was not objected to and did not amount to plain error. R. 2:10-2.

In Point 3, defendant raises a challenge to the statements he made to his co-defendant which were recorded by the police and used against him. Defendant challenged the admission of the statements in a prior PCR petition, and the trial judge found the argument to be without merit. It is, therefore, barred under Rule 3:22-5.

In Point 4, defendant claims that the trial judge erred by "failing to conduct a plenary hearing" regarding the voluntariness of these statements. However, such a hearing was held pre-trial; if defendant wished to challenge the legal conclusions reached by the judge, he was required to raise them on direct appeal. This argument is barred by Rule 3:22-4.

In Point 5, defendant claims trial counsel was ineffective for failing to suppress these tape-recorded statements. However, as noted, the statements were the subject of a pre-trial plenary hearing. Trial counsel raised his objections, but lost the argument. Thus, he was not ineffective.

Defendant next claims appellate counsel was ineffective for not raising the issue regarding suppression of the statements. We considered defendant's allegations regarding appellate counsel's performance on appeal from the denial of his first PCR petition, and we "[we]re satisfied that none of defendant's assertions about his appellate counsel provide any basis for relief." State v. Rappisi, No. A-6376-01 (App. Div. January 23, 2004) (slip op. at 5-6)(citing R. 2:11-3(e)(2)). To the extent defendant already made this claim, it is barred by Rule 3:22-5; to the extent this claim is based upon some new argument regarding appellate counsel's performance, it is barred by Rule 3:22-4.

Defendant's claim that PCR counsel, or counsels, were ineffective simply lacks any factual allegations whatsoever. It is without merit. R. 2:11-3(e)(2).

In his supplemental brief, defendant claims that the exception contained in Rule 3:22-4(b) "overcomes the five-year time limit of Rule 3:22-12." See R. 3:22-12 (requiring that the PCR petition be filed within five years "of the judgment or sentence sought to be attacked"). Defendant, however, confuses the interplay between the two Rules, and, in any event, he is not entitled to relief from either Rules' strictures.

A defendant may avoid the five-year time bar if his petition "alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." Ibid. However, defendant fails to make any argument that his delay was due to excusable neglect.

Pursuant to Rule 3:22-4(b), a defendant may present an issue that should have been presented on direct appeal if he can demonstrate "that enforcement of the bar would result in fundamental injustice . . . ." A "'[f]undamental injustice' will be found if the prosecution or the judiciary abused the process under which the defendant was convicted or . . . if inadvertent errors mistakenly impacted a determination of guilt or otherwise 'wrought a miscarriage of justice for the individual defendant.'" State v. Mitchell, 126 N.J. 565, 587 (1992)(citations omitted). A fundamental injustice only serves to lift the procedural bar of Rule 3:22-4, however, in "exceptional circumstances." Id. at 588. Defendant has failed to establish exceptional circumstances amounting to fundamental injustice in this case.

In short, we have viewed defendant's arguments indulgently. We find no merit to them. R. 2:11-3(e)(2).

Affirmed.

 

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A-0968-07T4

November 6, 2009