STATE OF NEW JERSEY v. GARY GUIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3843-07T43843-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GARY GUIONS,

Defendant-Appellant.

_____________________________________

 

Submitted March 9, 2010 - Decided

Before Judges Parrillo and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-08-2813 and 99-08-2814.

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

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Luanh L. Lloyd, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from an order of November 2, 2007, denying his petition for post-conviction relief (PCR) under Rule 3:22, and an order of March 10, 2008, denying his motion for reconsideration. We affirm the rulings made, but we remand to the Law Division to consider a potentially meritorious argument, made only in passing in defendant's PCR papers, that was not addressed in the court's decision and also has not been addressed in the appellate briefs presented to us, namely, the contention that defendant's sentence under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, is an illegal sentence under State v. Manzie, 335 N.J. Super. 267 (App. Div. 2000), aff'd, 168 N.J. 113 (2001).

In 1999, as a sixteen-year-old juvenile, defendant confessed to two murders and related crimes. He already had a juvenile offense history involving violent offenses. He entered into a plea agreement by which the jurisdiction of the Family Part was waived and he pleaded guilty in the Criminal Part to the two murders and other offenses. In accordance with the plea agreement, he was sentenced on May 16, 2000, to concurrent terms of forty years in prison with thirty-four years to be served before parole eligibility and five years of parole supervision under NERA, N.J.S.A. 2C:43-7.2.

We heard defendant's direct appeal on a sentencing calendar pursuant to Rule 2:9-11. We affirmed the sentence by order dated January 18, 2001, stating further that the trial court had correctly denied defendant's motion to withdraw his guilty plea, and that "the NERA issue is preserved pending the Supreme Court's decision in [Manzie]." State v. Guions, A-5983-99T4 (App. Div. Jan. 23, 2001). The record presented to us on this appeal does not indicate what further proceedings, if any, were conducted with respect to the Supreme Court's decision in Manzie, supra, 168 N.J. 113, which was issued on June 13, 2001.

In October 2006, more than six years after his sentencing and judgment of conviction, defendant filed a pro se petition for PCR. He claimed ineffective assistance of counsel but did not allege any facts supporting that allegation. On October 30, 2006, Judge Donald Volkert, the Presiding Judge of the Criminal Part, signed an order in accordance with Rule 3:22-6(a) for the Office of the Public Defender, Post-Conviction Relief Unit, to provide legal representation to defendant.

In January 2007, assigned counsel filed a short letter-memorandum in support of defendant's PCR petition, arguing ineffective assistance of counsel generally without any specific facts. Counsel's memorandum also cited Manzie, supra, 168 N.J. 113, and stated: "[T]he old NERA statute did not apply to murder. Thus for old NERA cases, a conviction for murder continues to carry a parole disqualifier of not more than 30 years." As far as we can tell from the record, no ruling has ever been made regarding this contention, and it was not argued again in defendant's subsequent filings.

In April 2007, defendant filed an amended pro se PCR petition, alleging that his defense attorney had been ineffective because he failed to advise defendant that he had a right to testify at the jurisdictional waiver hearing in the Family Part, and also because counsel failed to challenge the admissibility of defendant's confessions. In September 2007, assigned counsel filed a supplemental brief in support of the petition, arguing primarily that defendant was not represented effectively in the Family Part waiver hearing.

On November 2, 2007, Judge Michael Petrolle heard argument and denied the PCR petition both on the ground that it was filed out of time and on its lack of merit. Defendant then filed a pro se motion for reconsideration, arguing that his plea of guilty was involuntary because he was not advised that his sentence would include a period of parole supervision under NERA. After oral argument, Judge Petrolle denied defendant's motion for reconsideration by order dated March 10, 2008. Defendant now appeals from those denials.

The underlying facts of the crimes are revealed by the transcripts of defendant's confessions, made in the presence of his mother on April 7, 1999, and the transcript of his guilty plea on February 29, 2000. In 1999, defendant had left his mother's home in East Orange and was staying in Newark with Timothy Davis, whom he knew as Fuquan. Also living in Fuquan's apartment were Fuquan's girlfriend and her two toddler children.

According to defendant, at Fuquan's suggestion he agreed to assist in the armed robbery of a cab driver who was seeking cocaine from Fuquan. They expected the cab driver to have $300 in his possession and intended to rob that money at gunpoint without ever obtaining any drugs for him. When the cab driver arrived, Fuquan directed the cab to an isolated area, and defendant and Fuguan stepped out and walked around the corner as if they were going to buy drugs. When they returned, Fuquan got into the back seat while defendant stood outside as a lookout. Defendant then heard a gunshot in the cab, and he saw that Fuquan had shot the driver in the head. Fuquan went through the driver's pockets and took money, only about $70 according to defendant. Defendant received $20, and later, Fuquan gave defendant his handgun. Defendant carried the handgun in his back pocket, he said, so that the children in the apartment would not handle it.

A short time after the robbery, defendant overheard Fuquan telling his girlfriend that he wanted to kill defendant. On the morning of Sunday, March 28, 1999, while the girlfriend was out of the apartment and the two toddlers were watching a Rugrats cartoon show on television, defendant and Fuquan got into a physical fight, each punching the other. Defendant drew his handgun from his back pocket and shot Fuquan in the head, killing him. He claimed he saw Fuquan reaching for his own gun, and defendant just beat him to the draw. Defendant admitted that he fired two shots at Fuquan.

On this appeal, defendant makes the following arguments, which we reject:

POINT I THE DEFENDANT-APPELLANT'S ALLEGATIONS OF INEFFECTIVE ASSISTANCE OF COUNSEL HAVE BEEN ARGUED CONSISTENTLY AND CONTINUOUSLY THROUGHOUT THE COURSE OF THIS PROTRACTED LITIGATION, AND THE FACT THAT SAME HAS NEVER BEEN SUBSTANTIVELY CONSIDERED HAS RESULTED IN THE DENIAL OF DEFENDANT'S RIGHT TO A FAIR TRIAL AND A GROSS MISCARRIAGE OF JUSTICE.

POINT II THE OCTOBER 30, 2006 ORDER OF THE COURT OBLIGATED THE PCR COURT TO CONSIDER THE APPLICATION ON THE MERITS.

Judge Petrolle correctly concluded that defendant's petition was filed out of time and therefore must be dismissed. Rule 3:22-12(a) provides:

A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule more than 5 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.

Defendant's time for filing a PCR petition, other than with respect to an illegal sentence, lapsed on May 16, 2005, five years after the judgment of conviction was entered. Defendant filed his PCR petition in October 2006, almost eighteen months later. To be entitled to relief from the limitations period of Rule 3:22-12, defendant must allege specific facts from which the court could find justification to permit the late filing. State v. Mitchell, 126 N.J. 565, 578-79 (1992). Nowhere in any of the several petitions and briefs, filed by counsel and pro se, does defendant demonstrate excusable neglect for missing the five-year deadline to file his petition.

Defendant's appellate brief criticizes the performance of prior assigned PCR counsel for failing to argue good cause for filing the petition beyond the five-year limitations period. The State responds that we should not consider these arguments because they were not presented to the trial court. See State v. Arthur, 184 N.J. 307, 327 (2005). We agree that the appellant's brief goes beyond the record in the trial court. We will nevertheless briefly address defendant's argument.

In the appellate brief, current PCR counsel criticizes prior PCR counsel but still does not say what excusable neglect was available for prior counsel to argue in justification of the late filing. Appellate counsel only argues that Judge Volkert's order of October 30, 2006, was a ruling relaxing the time constraint of Rule 3:22-12(a). It was not. That order was issued in accordance with the requirements of Rule 3:22-6(a), which states: "if the petition is the first one filed by the defendant attacking the conviction pursuant to this rule, the court shall as of course . . . refer the matter to the Office of the Public Defender . . . ." (emphasis added). Nothing in Judge Volkert's order implies that he considered or made a ruling regarding defendant's right to proceed on the merits of his petition despite the late filing.

In any event, Judge Petrolle considered the merits of the petition and denied it also because defendant has never presented any evidence that his attorney was ineffective or, more to the point, that the alleged ineffective representation had any effect on the outcome of the charges against him.

In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), the United States Supreme Court identified a two-part test for evaluating claims of ineffective assistance of counsel.

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

To satisfy the second part of the Strickland test, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The Strickland standard was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42 (1987).

Here, defendant contends that his defense attorney did not advise him that he could testify at the juvenile waiver hearing and attempt to persuade the Family Part that it should not waive its jurisdiction. See N.J.S.A. 2A:4A-26; R. 5:22-2(c)(3). At the time of the juvenile court proceedings, N.J.S.A. 2A:4A-26 permitted a juvenile charged with murder to show that the State's motion for waiver should be denied because the juvenile could be rehabilitated. "[T]o secure a hearing on the claim, a juvenile must make a prima facie showing that there was genuine evidence of the statutorily-relevant potential for rehabilitation that was not presented to the juvenile court due to the ineffective assistance of counsel." State v. Jack, 144 N.J. 240, 245 (1996). But in his PCR petition, defendant never says what, if he had been given the opportunity, he would have testified that might have persuaded the Family Part to retain jurisdiction over the murder charges.

In a matter of a few weeks, defendant committed two homicides, both of which involved planning the events and using a handgun. In both, the victim was shot in the head. His conduct was not aberrational. Defendant had a prior juvenile offense history involving violence. He was admittedly a regular drug abuser since the age of fourteen. He had stayed away from his home, had been carrying a handgun, and had planned and carried out an armed robbery. The prospects of the Family Part denying the State's motion to waive jurisdiction were non-existent. Defendant failed to make a prima facie showing as required by Jack, supra, 144 N.J. at 245.

With respect to a motion to suppress his confessions, the transcripts show that defendant's mother was present throughout his questioning and he was fully advised of his Miranda rights. Defendant initialed the transcripts and made several corrections. Nothing in the manner of questioning or defendant's answers indicates coercion or overbearing of his will.

Also, defendant had already confessed to at least two individuals, one of whom had disclosed the confession to the police. He had also confessed to his mother on the day that he shot Fuquan. In fact, according to his own account, it was his mother who persuaded him to plead guilty. Nothing in the PCR record suggests any likelihood of success in a defense motion to suppress the confessions.

In his motion for reconsideration, defendant also argued that he would not have pleaded guilty if he had been told that his sentence would include a five-year period of parole supervision. Not only does this allegation lack credibility, but it is barred from PCR consideration by Rules 3:22-4 and -5 because the direct appeal included an argument regarding withdrawal of his guilty plea and this issue could have been raised at that time.

As to defendant's allegation that his attempt to withdraw the guilty plea before sentencing was not adequately argued on appeal before this court, he has not provided any documentary support for that argument, it was not argued before the trial court, and it is not appropriate for initial consideration on appeal. See State v. Calloway, 275 N.J. Super. 13, 15 (App. Div. 1994).

We conclude that the record fully supports Judge Petrolle's rulings that defendant failed to show excusable neglect for filing his petition beyond the five-year time limitation, and that the petition does not establish a prima facie case of ineffective assistance of counsel resulting in his conviction. We affirm denial of his petition on those grounds.

We cannot tell from the record presented to us, however, what happened to defendant's argument that his sentence could not include a term of parole ineligibility under NERA. In Manzie, supra, 335 N.J. Super. at 278, we held that NERA as originally enacted was not intended to apply to convictions for murder. Our holding was affirmed by an equally divided Supreme Court. Manzie, supra, 168 N.J. 113. Immediately after the Supreme Court's decision, the Legislature amended NERA to make it explicitly applicable to murder convictions. L. 2001, c. 129, 1 (effective June 29, 2001); see State v. Parolin, 171 N.J. 223, 232 (2002).

Defendant, however, was sentenced on murder convictions before amendment of NERA. Therefore, it appears that the eighty-five percent period of parole ineligibility and the five-year term of parole supervision cannot apply to his sentence. See State v. Burris, 357 N.J. Super. 326, 339 (App. Div. 2002), certif. denied, 176 N.J. 279 (2003); State v. Negron, 355 N.J. Super. 556, 579 (App. Div. 2002); State v. Vandeweaghe, 351 N.J. Super. 467, 485 (App. Div. 2002), aff'd, 177 N.J. 229 (2003). Defendant may have been entitled to sentencing under the prior statutory provisions providing for a minimum sentence of thirty years without parole, N.J.S.A. 2C:11-3b(1); see Manzie, supra, 335 N.J. Super. at 271-72, rather than under NERA with thirty-four years of parole ineligibility.

Because the parties have not argued this issue and the trial court did not address it, we will not decide in the first instance whether defendant's sentence contains illegal provisions under NERA for parole ineligibility and parole supervision. See Arthur, supra, 184 N.J. at 327 (appellate court should not raise and decide an issue that the parties have not had the opportunity to argue). We remand to the Law Division to consider whether defendant's sentence is illegal and whether he should be resentenced.

Affirmed in part. Remanded with direction to consider whether defendant was sentenced in conformity with the law applicable to his convictions. We do not retain jurisdiction.

 

The statute in effect in 1999-2000 stated: "[I]f in any case the juvenile can show that the probability of his rehabilitation by the use of the procedures, services and facilities available to the court prior to the juvenile reaching the age of 19 substantially outweighs the reasons for waiver, waiver shall not be granted." L. 1982, c. 77, 7. In January 2000, after the commission of defendant's crimes, the Legislature deleted the quoted provision of the waiver statute and replaced it with the following: "If the juvenile can show that the probability of his rehabilitation by the use of the procedures, services and facilities available to the court prior to the juvenile reaching the age of 19 substantially outweighs the reasons for waiver, waiver shall not be granted. This subsection shall not apply with respect to a juvenile 16 years of age or older who is charged with committing [murder]." L. 1999, c. 373, 1, codified as N.J.S.A. 2A:4A-26e.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)

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A-3843-07T4

June 22, 2010