STATE OF NEW JERSEY v. JOHN RHETT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3881-07T43881-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN RHETT,

Defendant-Appellant.

________________________________________________________________

 

Submitted January 25, 2010 - Decided

Before Judges Lisa and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 88-02-0201.

Yvonne Smith Segars, Pubic Defender, attorney for appellant (David A. Gies, Designated Counsel, of counsel and on the briefs).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Daniel M. Vannella, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant John Rhett appeals from an August 2, 2007 order that denied his first petition for post-conviction relief (PCR). Defendant asserts he should be granted such relief because the new sentence he received after his first, partially successful, direct appeal was the result of "prosecutorial vindictiveness," and because appellate counsel and PCR counsel both rendered ineffective assistance. We reject those contentions and affirm the denial of defendant's PCR petition.

I.

Following a trial by jury, defendant was convicted on November 17, 1988 of the attempted murder of a security guard at the factory where he had previously worked. The jury also convicted defendant of first-degree robbery, finding that he inflicted serious bodily injury upon the security guard in the course of stealing a change machine. Defendant was sentenced as a persistent offender on the attempted murder charge to an extended term of life imprisonment with a twenty-five year period of parole ineligibility, and to an eighteen-year term, with a nine year period of parole ineligibility, on the robbery charge.

Defendant appealed his conviction, arguing that the jury instructions were erroneous, his convictions should have been merged and the sentence was excessive. We affirmed his convictions and sentence. State v. Rhett, No. A-2014-88 (App. Div. December 5, 1990) (slip op. at 27). The Court granted defendant's petition for certification, affirming in part and reversing in part. State v. Rhett, 127 N.J. 3, 9 (1992). In particular, the court reversed and remanded defendant's attempted murder conviction because of errors in the jury instruction, id. at 8, but affirmed defendant's conviction on the first-degree robbery charge. Id. at 9.

On remand, the State moved to amend its prior motion for an extended term of imprisonment on the attempted murder conviction to a motion for an extended term on the robbery conviction. In addition, the State proposed to place defendant's attempted murder charge on the inactive list. Defendant objected, arguing that the State's motion to sentence defendant to an extended term of imprisonment on the armed robbery charge should be rejected as time-barred. Defendant also argued that because defendant's armed robbery conviction had been affirmed, and the remand was limited to the attempted murder charge, the State was not free to attempt to attach the extended-term sentence to the robbery conviction. He asserted that on remand the State had only two choices: proceed to trial on the attempted murder charge or move for dismissal of that charge.

The judge rejected defendant's arguments and granted the State's motion to sentence defendant to an extended term of imprisonment on the first-degree robbery charge. On July 7, 1992, the judge imposed a sentence of life imprisonment with a twenty-five year parole ineligibility term. Thus, on remand, defendant received the same sentence on the first-degree robbery conviction that he had earlier received on his attempted murder conviction. At the State's request, the judge placed the attempted murder charge on the inactive list.

Defendant thereafter appealed the resentence, arguing that the extended term sentence imposed upon him for the robbery conviction should be reversed for the reasons he had expressed in the Law Division. He also maintained on appeal that the increase in his sentence on the robbery charge violated principles of double jeopardy, and that his sentence was excessive. We rejected defendant's arguments and affirmed the sentence that had been imposed upon remand. State v. Rhett, No. A-3800-92 (App. Div. July 20, 1994). We reasoned:

[t]here was nothing fundamentally unfair or contrary to . . . the Criminal Code in the resentencing in this case. Defendant was not sentenced for attempted murder, but for a particularly heinous first-degree robbery. Every consideration except the intent to kill survived to inform the resentencing, and fully justified the sentence rendered. No legitimate expectations were disappointed. . . . The sentence on remand was substantial, but it was substantially less than the original. . . . The heart of the matter is that no illegality or fundamental unfairness resulted from the shift of the extended-term sentence from the vacated attempted murder conviction to the equally serious robbery conviction.

[Id. at 5-6.]

The Supreme Court denied certification on September 26, 1994. State v. Rhett, 138 N.J. 267 (1994).

On October 14, 1994, within weeks of the denial of defendant's petition for certification, the trial judge granted the State's motion to remove defendant's attempted murder charge from the inactive list and dismiss it.

More than ten years later, on February 22, 2005, defendant filed the PCR petition that is the subject of this appeal, principally arguing that the sentence imposed on remand was the result of "prosecutorial vindictiveness" that must be reversed on appeal. Relying on Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), he also argued that the sentence imposed on remand was illegal. He maintained that the sentence violated his right to equal protection and the prohibition on double jeopardy, and that he had been denied the effective assistance of counsel. He argued that he should be permitted to file his PCR petition out of time because he was seeking relief from an illegal sentence, which is correctable at any time. Because the issues presented in defendant's petition were legal in nature, defendant agreed an evidentiary hearing would be unnecessary.

On August 2, 2007, Judge Geiger issued an order and written opinion denying defendant's petition. The judge found that defendant's ineffective assistance of counsel arguments were barred because they were not presented either at trial or on appeal, despite ample opportunity to do so. Furthermore, the judge found that defendant's claim under Blakely v. Washington and other related cases was meritless because defendant did not raise a Blakely claim at trial or on direct appeal and his appeals were completed before the United States Supreme Court issued its decision in Blakely; thus, defendant was not in the pipeline and not entitled to retroactive application of the decision. As such, defendant's sentence was not illegal, and his PCR petition, filed more than ten years after his resentencing was affirmed by the Appellate Division in 1994, was barred as out of time.

Furthermore, Judge Geiger found that: defendant's argument that his sentence was excessive was raised on both of his direct appeals and was disposed of; an excessive sentence claim such as the one defendant presented cannot be brought within the PCR context and must be decided on direct appeal; defendant did not present a prima facie case of ineffective assistance of counsel or prosecutorial misconduct; defendant's argument regarding the No Early Release Act (NERA) was baseless because NERA was not even in existence when defendant was sentenced; and defendant had made no argument or showing to support his claim that he was denied equal protection of the law; and all of defendant's claims, except that of ineffective assistance of counsel, should have been raised on direct appeal and were now barred.

On appeal, defendant argues:

I. DUE PROCESS OF LAW REQUIRES THAT PROSECUTORIAL VINDICTIVENESS PLAYS NO PART IN RESENTENCING A DEFENDANT WHO IS SUCCESSFUL ON APPEAL.

II. THE DEFENDANT'S PCR ATTORNEY WAS CONSTITUTIONALLY INEFFECTIVE WHERE, IN SUPPORT OF THE DEFENDANT'S ARGUMENT, HE SOLELY RELIED ON THE DEFENDANT'S PRO SE BRIEF WITHOUT INTERVIEWING THE DEFENDANT.

III. THE FAILURE OF THE DEFENDANT'S APPELLATE COUNSEL TO ADDRESS ON THE DEFENDANT'S DIRECT APPEAL OF HIS RESENTENCE THE PROSECUTORIAL VINDICTIVENESS/DUE PROCESS VIOLATION WAS CONSTITUTIONALLY INEFFECTIVE ASSISTANCE.

IV. THE PROCEDURAL BAR OF RULE 3:22-4 MAY BE RELAXED TO ADDRESS SIGNIFICANT CONSTITUTIONAL ISSUES.

II.

In Point I, defendant argues that the remand sentence imposed on July 7, 1992 should be vacated and the original first-degree robbery sentence reimposed, because his increased sentence on the robbery conviction, and placing of his attempted murder charge on the inactive list after his first and partially successful appeal, was the result of "prosecutorial vindictiveness." The State argues that this argument: is time barred pursuant to Rule 3:22-12(a); was raised and decided in defendant's prior appeal and should be barred under Rule 3:22-5; is barred by Rule 3:22-4 because, even if defendant did not raise this issue on direct appeal, he could have; and that defendant's argument is meritless.

"Post-conviction relief is neither a substitute for direct appeal nor an opportunity to relitigate cases already decided on the merits." State v. Preciose, 129 N.J. 451, 459 (1992). See also State v. Mitchell, 126 N.J. 565, 583 (1992). As such, procedural bars, such as Rule 3:22-4 and Rule 3:22-5, exist to prevent issues that could have been litigated on appeal or issues that previously have been litigated from being raised in a PCR setting. Rule 3:22-4, which governed defendant's PCR, states:

Any ground for relief not raised in a prior proceeding under this rule, or in the proceedings resulting in the conviction . . . or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds (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.]

In delineating when these exceptions should apply, the Court held that they shall only apply in "exceptional circumstances." Mitchell, supra, 126 N.J. at 587. The Court elaborated, stating:

In defining fundamental injustice, the courts will look to whether the judicial system has provided the defendant with fair proceedings leading to a just outcome. "Fundamental injustice" will be found if the prosecution or the judiciary abused the process under which the defendant was convicted or, absent conscious abuse, if inadvertent errors mistakenly impacted a determination of guilt or otherwise wrought a miscarriage of justice for the individual defendant. The standard goes beyond constitutional infringements to any circumstances deemed "unjust." Although a petitioner would not have to prove that the issue of concern cost him the case, to establish injustice there should at least be some showing that the alleged violation played a role in the determination of guilt. To conclude otherwise would exalt form over substance.

[Ibid. (internal quotations and citations omitted).]

A defendant has the burden of proof in showing that an application of the Rule 3:22-4 bar would result in fundamental injustice. Ibid.

Additionally, according to Rule 3:22-5, "[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 prior to the adoption thereof, or in any appeal taken from such proceedings." In deciding whether to apply the Rule 3:22-5 bar, the issue is whether the present claim and the claim previously asserted "are either identical or 'substantially equivalent.'" State v. Marshall, 173 N.J. 343, 350-53 (2002), cert. denied, 538 U.S. 911, 123 S. Ct. 1492, 155 L. Ed. 2d 234 (2003). "If the claims are substantially the same, the petition is procedurally barred; if not, the claim of error should be adjudicated when there is no other reason to bar it." Ibid.

The Rule 3:22-5 prior adjudication bar may be relaxed where the constitutional problems raised are of substantial import. State v. Johns, 111 N.J. Super. 574, 576 (App Div. 1970), certif. denied, 60 N.J. 467 (1972), cert. denied, 409 U.S. 1026, 93 S. Ct. 473, 34 L. Ed. 2d 319 (1972).

In addition to these procedural bars, petitions for PCR are also subject to time bars. Rule 3:22-12 provides a time limit for the filing of PCR petitions. The Rule specifies that "[a] petition to correct an illegal sentence may be filed at any time," but that "[n]o other petition 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." R. 3:22-12. Lack of "sophistication in the law does not satisfy the exceptional circumstances required" to constitute excusable neglect. State v. Murray, 162 N.J. 240, 246 (2000). The five-year limitation "commences from the time of the conviction or the time of the sentencing, whichever the defendant is challenging." State v. Goodwin, 173 N.J. 583, 594 (2002).

The five-year time bar established by Rule 3:22-12 is relaxable only in "exceptional circumstances." State v. Afanador, 151 N.J. 41, 52 (1997). In determining whether or not exceptional circumstances exist, courts consider "the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an "injustice" . . . . Absent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay." Ibid. (internal citation omitted).

We turn now to a review of Judge Geiger's decision. The judge rejected defendant's "prosecutorial vindictiveness" claim for a number of reasons, each of which was correct. First, as the judge observed, defendant's PCR petition was filed more than ten years after we affirmed his resentencing on July 20, 1994 and the Supreme Court denied certification on September 26, 1994. Thus, the filing of defendant's PCR petition on February 22, 2005, was well beyond the five-year time limit imposed by Rule 3:22-12. While the time bar contained in that Rule can be relaxed when exceptional circumstances are presented or the sentence under review was illegal, ibid., neither of those circumstances is present here.

As to exceptional circumstances, defendant has pointed to no circumstances that justify the delay, much less any exceptional circumstances. Moreover, the sentence imposed was not illegal. See Murray, supra, 162 N.J. at 246-47 (observing that a sentence is not "illegal" unless it "exceed[s] the penalties authorized by statute for a specific offense" or is not "a disposition authorized by the Code"). As to defendant's contention that the sentence violates the mandate of Blakely v. Washington, defendant's resentencing was concluded, and affirmed on appeal, years before Blakely was decided. Blakely's retroactivity only extends to those defendants whose direct appeals were pending at the time Blakely was decided. Thus, Judge Geiger's conclusion that defendant's filing delay violated the requirements of Rule 3:22-12, and that such delay could not be excused by either exceptional circumstances or the imposition of an illegal sentence, was correct.

Second, we agree with the judge's conclusion that defendant's prosecutorial vindictiveness argument is procedurally barred under Rule 3:22-4 because this claim could have, but was not, presented on direct appeal. If any exercise of prosecutorial vindictiveness occurred, it occurred at the time of defendant's resentencing. Furthermore, defendant makes no effort to explain why it would not have been possible or reasonable to raise this claim in his direct appeal, rather than in a PCR petition filed more than twelve years after the resentence and the alleged prosecutorial vindictiveness had occurred. While we recognize that the Rule 3:22-4 prior-appeal bar can be relaxed in "exceptional circumstances" where application of the bar would cause a defendant to suffer a "fundamental injustice," see R. 3:22-4, no such exceptional circumstances or fundamental injustice are present here. Thus, we are satisfied that Judge Geiger's application of the Rule 3:22-4 bar was correct. We thus reject the claim defendant advances in Point I.

III.

In Point II, defendant maintains that his PCR attorney provided ineffective assistance of counsel because, in support of defendant's prosecutorial vindictiveness argument, he relied only on defendant's pro se brief without interviewing him. This argument is meritless. Defendant fails to identify any facts or issues that would have been presented had PCR counsel interviewed him. A defendant is precluded from making generalized statements unsupported by a precise delineation of what facts would have been revealed by further investigation. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Defendant must "assert the facts that an investigation would have revealed, supported by affidavits or certifications . . . ." Ibid. Defendant has not done so.

Second, we fail to see how an interview with defendant would have, or could have, resolved defendant's violation of Rule 3:22-12 (time-bar) or Rule 3:22-4 (bar of claims that could have been raised on direct appeal). Defendant's failure to assert his prosecutorial vindictiveness claim in a timely manner, and in his direct appeal, are fatal to such claims, and thus no amount of investigation by PCR counsel could have overcome those hurdles. We thus reject defendant's contention that PCR counsel rendered ineffective assistance when he did not interview defendant.

IV.

We turn to Point III, in which defendant asserts that

appellate counsel provided ineffective assistance by failing to raise defendant's claim of prosecutorial vindictiveness during the direct appeal. For the reasons we have already discussed in connection with defendant's Point I, this claim too is time-barred by Rule 3:22-12. Defendant presents no reason, meritorious or otherwise, for his failure to present in a timely manner his claim of appellate counsel's ineffectiveness. We thus conclude that this claim is time-barred. R. 3:22-12.

Moreover, were we to entertain this claim on the merits, we would conclude that it lacks merit. Whether couched as "prosecutorial vindictiveness" or whether described as an "improper[] switch[ing]" of the extended term sentence from one count to the other, which is the way appellate counsel described it during the direct appeal, the argument, at its core, is the same. The gravamen of defendant's prosecutorial vindictiveness claim is that the State was disappointed that the attempted murder conviction had been reversed, and in a fit of spite, filed its motion for an extended term on defendant's first-degree robbery conviction.

As we held when we affirmed defendant's resentencing in 1994, the increase in the robbery sentence did not violate defendant's constitutional right against double jeopardy, was not fundamentally unfair, nor was it inconsistent with the provisions of Title 2C. State v. Rhett, supra, No. A-3800-92, slip op. at 5. Even if, for the sake of argument, we were to conclude that the State's motion for an extended term sentence on the first-degree robbery after the remand was the result of an improper motive, such improper motive, had it existed, would have had no bearing on our analysis of the constitutional claims defendant advanced in his 1994 appeal. Thus, defendant has not established a prima facie case of ineffective assistance of appellate counsel. Counsel's performance was not deficient and the failure to raise such claim has not prejudiced defendant's rights. See State v. Fritz, 105 N.J. 42, 58 (1987). We thus reject the claim defendant advances in Point III.

V.

We decline to address the claim defendant advances in Point IV as we have already discussed it at considerable length in connection with our disposition of Point I.

 
Affirmed.

See R. 3:21-4(e) (requiring the State to file a motion for an extended term of imprisonment within fourteen days of the return of the verdict).

Defendant's arguments on the direct appeal of his resentence were:

POINT I: THE JUDGE IMPROPERLY SWITCHED THE EXTENDED TERM OF THE DEFENDANT'S FIRST-DEGREE ROBBERY CONVICTION AFTER THE ATTEMPTED MURDER CONVICTION WAS REVERSED.

A. R. 3:21-4e Does Not Permit Extended Terms To Be Imposed On Counts For Which Ordinary Terms Of Imprisonment Have Already Been Imposed; Alternatively, There Was Not "Good Cause" To Allow A Nearly Four-Year Relaxation Of The Court Rules To Permit The Amendment Of The Prosecutor's Original Extended-Term Application.

B. The Increase In The Sentence For Armed Robbery Violated Defendant's Federal And State Constitutional Rights Against Double Jeopardy, Considerations Of Fundamental Fairness And The Provisions Of Title 2C.

C. The Extended Term Of Life, 25 Years Without Parole, Is Manifestly Excessive.

542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

State v. Natale, 184 N.J. 458, 494 (2005).

See supra, n.2

(continued)

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A-3881-07T4

February 10, 2010