STATE OF NEW JERSEY v. TERRANCE MANLEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0552-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRANCE MANLEY,

Defendant-Appellant.

_________________________________

September 20, 2010

Submitted August 31, 2010 - Decided

Before Judges Simonelli and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 95-12-3766.

Terrance Manley, appellant pro se.

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Terrance Manley appeals from the denial of his second petition for post-conviction relief (PCR) grounded on ineffective assistance of trial, appellate, and PCR counsel. We affirm.

On May 21, 1996, a jury convicted defendant of the lesser included offense of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4 (count one); three counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b (counts two, three, and four); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count five); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count six). At sentencing on June 13, 1996, the trial judge merged count six with counts one through five and imposed a thirty-year term of imprisonment with a fifteen-year period of parole ineligibility on count one; a consecutive ten years with a five-year period of parole ineligibility on counts two, three, and four; and a consecutive five years with a two-and-one-half-year period of parole ineligibility on count five. The judge also imposed the appropriate assessments.

Defendant appealed his conviction and sentence. We affirmed in an unpublished opinion concluding, in part, that "the evidence clearly established that defendant was either guilty as a principal or as an accomplice." State v. Manley, No. A-1821-96 (App. Div. Oct. 21, 1998) slip op. at 6. Our Supreme Court denied certification. State v. Manley, 160 N.J. 89 (1999).

On June 7, 2001, defendant filed his first PCR petition, arguing, in part, that trial counsel was ineffective because counsel waived defendant's right to be present when the judge excused two jurors, failed to investigate a potential witness, and failed to raise self-defense. In a July 10, 2007 written opinion, the judge denied the petition concluding that because the jurors were dismissed for cause defendant was not prejudiced by trial counsel's waiver of his right to be present; the witness testified at trial and was cross-examined by defense counsel; and the trial judge instructed the jury on self-defense.

Defendant did not appeal the denial of his first PCR petition. Instead, on July 10, 2009, he filed a second PCR petition arguing that trial, appellate, and PCR counsel were ineffective for failing to challenge the accomplice liability jury instruction. In an August 13, 2009 written opinion, the judge denied the second petition concluding that "[b]ased on the evidence, the issue of accomplice liability was properly charged by the trial judge, found by the jury, and previously upheld by the Appellate Division." This appeal followed.

On appeal, defendant contends that the judge erred in denying his second PCR petition because the evidence did not support his status as an accomplice, and thus, all counsel were ineffective for failing to challenge the accomplice liability jury instruction. Defendant also contends that the judge failed to consider an additional contention defendant raised namely, that the trial judge gave a biased and prejudicial explanation of the evidence during the accomplice liability instruction.

The State counters that (1) defendant's second PCR petition was time-barred pursuant to Rule 3:22-12; (2) Rule 3:22-4 bars consideration of the newly raised issue of the sufficiency of the evidence supporting accomplice liability and the trial judge's errors in charging accomplice liability; and (3) and Rule 3:22-5 bars defendant from re-litigating the accomplice liability issue.1 We agree.

Defendant filed the petition more than five years after entry of conviction, and he has not established excusable neglect, exceptional circumstances, or facts demonstrating a serious question about his guilt. See State v. Merola, 365 N.J. Super. 203, 218-19 (Law Div. 2002), aff'd o.b., 365 N.J. Super. 82 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); State v. Cummings, 321 N.J. Super. 154, 168-69 (App. Div.) certif. denied, 162 N.J. 199 (1999). Accordingly, defendant's second PCR petition is time-barred pursuant to Rule 3:22-12.

Rule 3:22-4 bars defendant's contentions relating to the sufficiency of the evidence supporting accomplice liability and the trial judge's alleged errors in charging accomplice liability. "[P]ost-conviction proceedings are not a substitute for direct appeal." State v. Cerbo, 78 N.J. 595, 605 (1979). An issue that could have been raised on direct appeal will not be considered on post-conviction relief unless an exception applies. See R. 3:22-4; State v. Mitchell, 126 N.J. 565, 583-84 (1992). Those exceptions, none of which apply here, are:

(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.

[R. 3:22-4.]

Rule 3:22-5 also bars consideration of defendant's contentions relating to the sufficiency of the evidence supporting accomplice liability and the trial judge's alleged errors in charging accomplice liability. Issues, even those of "constitutional dimensions, once decided, may not be relitigated." State v. Smith, 43 N.J. 67, 74 (1964), cert. denied, 379 U.S. 1005, 85 S. Ct. 731, 13 L. Ed. 2d 706 (1965). In defendant's prior appeal, we addressed the weight and sufficiency of the evidence and concluded that the evidence "clearly established that defendant was either guilty as a principal or as an accomplice." Accordingly, defendant is barred from now raising these issues.

In addition to the procedural bars, defendant's ineffective assistance of counsel contention lacks merit. Because the evidence supported defendant's status as an accomplice, accomplice liability was properly charged. Thus, plaintiff cannot show "'that counsel's performance was deficient'" and "'that the deficient performance prejudiced the defense[,]'" meaning "'counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)).

1 We reject defendant's contention that these issues were not raised below. Defendant admits in his merits and reply briefs that in his second PCR petition "he opposed the imposition of any procedural bars."