STATE OF NEW JERSEY v. STANLEY RUSH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3692-06T43692-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STANLEY RUSH,

Defendant-Appellant.

________________________________

 

Submitted September 30, 2009 - Decided

Before Judges Parrillo and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-03-1001.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Luanh L. Lloyd, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Stanley Rush appeals from the denial of his petition for post-conviction relief (PCR) without benefit of an evidentiary hearing. On appeal, he raises the following points for our consideration:

Point I

The court misapplied the applicable legal standards in ruling that the defendant was procedurally barred from raising the issue of ineffective assistance of counsel in post-conviction relief.

(A) The court's ruling that the defendant's petition for post-conviction relief was procedurally barred was contrary to the criteria controlling R. 3:22-12 and the "excusable neglect" doctrine.

POINT II

Trial counsel's failure to inform the defendant about the mandatory 5 year period of parole supervision after his release from jail satisfied both prongs of the Strickland/Fritz test for ineffective assistance of counsel.

(A) Appellate counsel was ineffective for failing to raise the issue of ineffective assistance of trial counsel on appeal.

POINT III

The court's ruling denying post-conviction relief violated the defendant's right to effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution.

POINT IV

Defendant reasserts all other issues raised in defendant's pro se petition for post-conviction relief.

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

Defendant, along with two others, was charged with numerous acts of juvenile delinquency in connection with the shooting- death of a car-jacking victim. Following a waiver hearing, the State's motion to transfer jurisdiction to the Law Division for adult prosecution, N.J.S.A. 2A:4A-26, was granted following a waiver hearing. A multi-count indictment issued charging defendant with conspiracy, murder, carjacking, and armed robbery, along with weapons and drug offenses.

Pursuant to a negotiated plea agreement, defendant pled guilty to aggravated manslaughter, N.J.S.A. 2C:11-4(a); carjacking, N.J.S.A. 2C:15-2(a)(1); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. The State agreed to dismiss the remaining charges and recommend a custodial sentence not to exceed twenty-five years, subject to the requirements of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. The trial court sentenced defendant, in accordance with the plea agreement, to an aggregate term of imprisonment of twenty-five years, subject to NERA.

On direct appeal, defendant argued he was denied effective assistance of counsel during his juvenile waiver hearing because no expert testimony was presented suggesting the possibility of his rehabilitation by age nineteen. Additionally, he claimed his sentence was not supported by the facts of record and was so excessive as to "shock the [judicial] conscience." We affirmed in an unpublished opinion, and the Supreme Court denied certification. State v. Rush, No. A-0948-01T4 (App. Div. Dec. 12, 2002), certif. denied, 176 N.J. 279 (2003).

Thereafter, defendant filed a pro se petition for PCR, which was stamped as received by the clerk's office on February 28, 2005. Defendant maintained he initially filed his petition in September 2003, but was forced to refile the pleadings in 2005 because the paperwork had been "lost by Criminal Records." The court appointed PCR counsel and scheduled the matter.

Following oral argument, the PCR judge denied the petition in an oral opinion. The court determined defendant's petition, filed on February 28, 2005, was untimely, and the request for relief was barred by the provisions of Rule 3:22-12(a). Additionally, the court reviewed the substantive requests presented and concluded they were meritless. See State v. Preciose, 129 N.J. 451, 461 (1992) (holding this approach creates alternate holdings rather than composing one holding on the procedural issue and mere dicta on the merits). This appeal ensued.

PCR applications provide the means to challenge issues impacting the legality of a conviction, which cannot be raised on direct appeal. R. 3:22-3. A defendant must establish he is entitled to PCR by a preponderance of the credible evidence. State v. Mitchell, 126 N.J. 565, 579 (1992). Specific facts must be alleged and articulated, which, if believed, would provide the court with an adequate basis to rest its decision. Ibid.

Defendant first argues the PCR judge incorrectly applied the time bar of Rule 3:22-12(a), suggesting his petition was timely or, alternatively, that sufficient evidence supporting excusable neglect was presented to waive the procedural bar. We disagree.

Defendant's judgment of conviction was entered on December 6, 1999. Generally, petitions for PCR are required to be filed within five years; in this case, by December 6, 2004. Ibid.; Mitchell, supra, 126 N.J. at 575; State v. Cann, 342 N.J. Super. 93, 101-02 (App. Div.) certif. denied, 170 N.J. 208 (2001).

The PCR court used the date stamp on the petition as the filing date, not the date listed in the pleadings adjacent to defendant's signature, which was September 1, 2003. The court did not make specific findings on this issue, because it was not an issue presented in defendant's PCR petition. Defendant did not file an affidavit explaining why the pleadings were dated September 1, 2003 and filed February 28, 2005. As argument closed, counsel told the court "Your honor, just to make the record complete [defendant's PCR petition] was filed on September 1, 2003. It was timely." Defendant then interjected "they say they lost it, Your Honor." The court did not reflect further on the issue, denying the PCR petition on the merits.

Despite the sparse record, we concur with the finding that defendant's petition is time-barred as insufficient facts are alleged to support a claim of excusable neglect. Cann, supra, 342 N.J. Super. at 102. Other than defendant's comment, no documentary evidence was adduced showing defendant's filing was made in 2003 or that the clerk's office "lost" the pleadings. Defendant relates no effort made to determine the status of his application in the almost year and one-half following its claimed submission. In any event, we will address the merits of defendant's arguments.

Defendant argues he was insufficiently counseled on the collateral consequences of his guilty plea because he was not informed on the record of the NERA requirement for parole supervision upon release. He maintains the five-year fixed period of imposed parole supervision extends his original sentence beyond the agreed twenty-five year term; therefore, his sentence must be vacated or modified. Defendant does not request to withdraw his plea. In a related argument, he suggests ineffective assistance of appellate counsel for omitting this issue on appeal.

Defendant correctly states that, before accepting a guilty plea, a trial judge must ensure the defendant enters the plea voluntarily and with a correct understanding of its penal consequences. State v. Howard, 110 N.J. 113, 122 (1988). This understanding includes the consequences imposed "by NERA's mandatory period of parole supervision." State v. Johnson, 182 N.J. 232, 240 (2005); State v. Freudenberger, 358 N.J. Super. 162, 168-69 (App. Div. 2003). With a NERA sentence, regardless of when the inmate is released, he or she is subject to a fixed five-year term of parole supervision for a first-degree offense. Freudenberger, supra, 358 N.J. Super. at 169.

Both Johnson and Freudenberger were decided years after defendant entered his plea. Importantly, the remedy allowed in Johnson, supra, is withdrawal of the plea upon a showing of materiality. 182 N.J. at 244. Modification of a defendant's sentence is prohibited. Ibid. As we noted, defendant never sought to withdraw his plea and go to trial. Therefore, the denial of the relief requested must be affirmed.

After examining the record, we also are satisfied that defendant was properly informed about the mandatory period of parole ineligibility attached to a guilty plea of the first-degree offenses. Although the trial judge did not directly mention or question defendant about the period of parole supervision on the record, the plea form clearly expressed the period of parole supervision mandated by conviction of a first-degree offense.

During the plea colloquy, the trial judge asked defendant whether he executed the NERA plea form. When counsel explained he had not yet completed it, the court required it be completed immediately. In addition to a standard plea questionnaire, a separate NERA plea form was executed. Each of these documents contained counsel's signature and defendant's signature.

In the first paragraph of the NERA plea form, parole supervision is addressed in this way:

In addition, unless you are sentenced to Lifetime Parole Supervision, upon your release from custody you will be subject to a five (5) year term of parole supervision if convicted of a first degree "violent crime," or a three (3) year period of parole supervision if convicted of a second degree "violent crime."

The trial judge asked defendant whether he understood and read English, whether he read the plea form, answered the questions truthfully, executed and initialed each page, and whether he had any questions. To each of these inquiries, he stated "yes." When defendant did not understand the court's question or comment, he spoke up and sought clarification. Counsel responded affirmatively when asked whether he had explained the provisions of the plea form to defendant and whether he was satisfied defendant understood the information reviewed. Finally, defendant acknowledged he had sufficient time to discuss the matter with his lawyer, who had represented him "for many months," that he understood what he was told by counsel and was satisfied with his advice. The final judgment of conviction contains the five-year parole supervision period.

We conclude defendant's guilty plea was entered knowingly and voluntarily. The record supports the finding that defendant was informed of and understood the penal consequences of his plea, including the mandated parole supervision period upon release.

For completeness, we note the absence of an on the record discussion regarding the NERA parole supervision requirement does not satisfy the second prong of the Strickland/Fritz test for ineffective assistance of counsel, which requires a reasonable probability that counsel's errors resulted in a changed outcome. Strickland, supra, 466 U.S. at 694. The evidence against defendant was compelling and overwhelming. The court explained that had defendant opted for trial, the maximum sentence he could receive on the dismissed count of felony murder alone was thirty years with a thirty-year period of parole ineligibility--a significantly less desirable consequence than that resulting from his plea. Nothing trial or appellate counsel did or failed to do could have changed his sentence. Preciose, supra, 129 N.J. at 462-64.

The remaining arguments presented by or on behalf of defendant are without sufficient merit and do not warrant further discussion in this opinion. R. 2:11-3(2).

Affirmed.

Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 206, 80 L. Ed. 2d 674, 698 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

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A-3692-06T4

October 20, 2009