STATE OF NEW JERSEY v. WAYNE COLE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3947-08T43947-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WAYNE COLE,

Defendant-Appellant.

__________________________________________________

 

Submitted April 20, 2010 - Decided

Before Judges Grall and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 92-06-2405.

Yvonne Smith Segars, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the brief).

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

PER CURIAM

On June 23, 1992, the Essex County grand jury returned a twelve-count indictment against defendant Wayne Cole charging him with first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1); three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(4); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) and 2C:14-2(a)(4); first-degree robbery, N.J.S.A. 2C:15-1; two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3; two counts of second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); second-degree attempted kidnapping, N.J.S.A. 2C:13-1(b)(1) and N.J.S.A. 2C:5-1; and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4). The charges involved two separate assaults against two women on different dates. The State's proofs were substantial and included a statement from defendant admitting some involvement with both assaults, as well as out-of-court identifications of defendant made by the two victims.

On September 21, 1992, pursuant to a plea bargain reached with the State, defendant pled guilty to six counts of the indictment, specifically, kidnapping, aggravated sexual assault, robbery, aggravated assault, and two counts of possession of a handgun for an unlawful purpose. The State recommended an aggregate sentence not to exceed forty years, with a twenty-year parole disqualifier. On March 29, 1993, the judge sentenced defendant to an aggregate term of thirty years with fifteen years of parole ineligibility. Defendant did not appeal his sentence.

Four years later, on June 12, 1997, defendant filed a motion pursuant to Rule 3:21-10 to reduce or change his sentence but withdrew the motion as reflected in the court's July 17, 1998 order. On February 22, 1999, defendant filed another motion seeking probation and a suspended sentence pursuant to Rule 3:21-7, which was also withdrawn. On September 28, 1999, defendant filed another motion for a reduction or change in sentence pursuant to Rule 3:21-10 which was denied on October 13, 1999.

On November 30, 2000, more than seven years after his conviction, defendant filed a pro se PCR petition. He alleged that his trial counsel provided ineffective assistance during the plea negotiation phase, contending that the State exacted a more punitive plea agreement because his attorney advised him not to take an AIDS test at the State's request; and that counsel was generally inattentive to his case. Defendant also filed a brief in which he argued that trial counsel was ineffective "at the plea bargaining stage because she failed to pursue a pre-trial motion to suppress" statements defendant made to the police at the time of his arrest; and that the procedural bar of Rule 3:22-12 should be relaxed in the interest of justice. Defendant explained the reason for his delay in filing his PCR petition as follows:

In September of 2000 I began to think about the fact that I have not seen or heard from my daughter in a year. I also began to analyze my whole situation. Only then did I realize the depth of Lisa Morgan's hatred for me. I began to realize the treatment that I received from Lisa Morgan [and defense counsel] may be connected in some way. Thus[,] this petition.

Morgan was defendant's girlfriend at the time of the crimes and defendant believes, the mother of his child. Defendant claimed that Morgan was instrumental in retaining trial counsel to represent him, and implied that Morgan and trial counsel may have been romantically involved.

Appointed PCR counsel filed a brief in which he claimed that trial counsel was ineffective for failing to engage in any "pretrial investigation or pretrial motions"; and was ineffective at sentencing because no "expert testimony" was provided regarding defendant's "mental condition at the time of these incidents and the effect that the devastating los[s] of his father had on his life [which] would have . . . mitigate[d] the circumstances of the crime and provide[d] [defendant] with the opportunity to receive a lower sentence." PCR counsel also alleged that Megan's Law, N.J.S.A. 2C:7-1 to -23, applicable to defendant as part of his sentence, was unconstitutional.

On August 25, 2006, Judge Thomas R. Vena heard oral argument on defendant's petition, entered an order denying relief, and appended a comprehensive, written letter opinion setting forth his reasons. After reviewing the procedural history and the evidence available to the State at the time of the plea, Judge Vena concluded that certain of defendant's claims, specifically that his sentence was excessive and that Megan's Law was unconstitutional, were procedurally barred by Rule 3:22-4, having never been raised on direct appeal. He found no compelling reasons to "lift the procedural bar," defendant having failed to demonstrate "a showing of fundamental injustice," R. 3:22-4(b), or "an infringement of [his] constitutional right[s]," R. 3:22-4(c).

Judge Vena then considered whether defendant's petition was time-barred under Rule 3:22-12, an "independent procedural bar . . . ." He noted that defendant "merely allege[d] that there would be an injustice if his [p]etition was time-barred but d[id] not provide sufficient facts or evidence to support his claim." Judge Vena concluded, defendant "ha[d] not provided any factual evidence of an injustice in this case, nor d[id] [p]etitioner deny his guilt of the crimes alleged." He found defendant's claims to be time-barred.

Judge Vena nevertheless considered the merits of defendant's petition. Regarding the claim that trial counsel was ineffective during plea negotiations, the judge concluded that defendant never contended that "but for counsel's errors, he would not have pled guilty and would have insisted on going to trial," quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985). Judge Vena also determined that defendant failed to demonstrate that his attorney performed in a deficient manner, noting that trial counsel "obtained discovery, reviewed it and made supplemental discovery requests, and actively engaged in plea negotiations." Regarding the claim that counsel provided ineffective assistance by not filing pre-trial motions, the judge observed that defendant "expressed [a] preference to enter into a plea agreement at the earliest possible stage . . . ."

Judge Vena found no merit to the claim that trial counsel was ineffective during the sentencing proceedings. He recognized that defendant "acknowledged his satisfaction with counsel in his signed plea form," and that defendant was sentenced to significantly less time than the plea bargain permitted. The judge addressed the remainder of defendant's ancillary claims and found them to be without merit. This appeal followed.

Defendant raises the following issues for our consideration:

POINT I

THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD BE CONSIDERED ON THE MERITS AS WITHIN TIME. (Partially Raised Below)

POINT II

IN THE ALTERNATIVE, THE DEFENDANT SHOULD BE GRANTED LEAVE TO SUPPLEMENT HIS PRO SE PETITION. (Partially Raised Below)

POINT III

THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY HIS APPOINTED DEFENSE ATTORNEY AND PCR COUNSEL IN VIOLATION OF THE NEW JERSEY AND UNITED STATES CONSTITUTIONS.

A. DEFENDANT'S ALLEGED CONFESSION IN POLICE CUSTODY WAS MADE IN A PSYCHOLOGICALLY COERCIVE ENVIRONMENT DEVOID OF A VOLUNTARY, KNOWING AND INTELLIGENT WAIVER OF HIS RIGHTS AND THE FAILURE OF HIS TRIAL ATTORNEY TO FILE A SUPPRESSION MOTION AND OF HIS PCR ATTORNEY TO RAISE THIS ISSUE BELOW WAS INEFFICIENT [SIC] ASSISTANCE OF COUNSEL REQUIRING AN EVIDENTIARY HEARING. (Partially Raised Below)

B. THE FAILURE OF TRIAL COUNSEL TO CHALLENGE THE ALLEGED IDENTIFICATION OF THE DEFENDANT THROUGH THE USE OF POLICE PHOTO ARRAYS AND PCR ATTORNEY'S FLEETING REFERENCE TO THIS ISSUE WAS INEFFECTIVE ASSISTANCE OF COUNSEL. (Partially Raised Below)

C. IN LIGHT OF SUPPOSED COMMENTS MADE BY THE DEFENDANT DURING HIS ALLEGED ORAL CONFESSION DURING THE INTERROGATION BY THE POLICE WHILE IN CONFINEMENT AT THE POLICE STATION, DEFENSE COUNSEL HAD AN AFFIRMATIVE OBLIGATION TO INVESTIGATE THE CASE TO DETERMINE WHETHER OR NOT A VIABLE INSANITY, AND/OR DIMINSHED CAPACITY DEFENSE COULD BE ADVANCED AND HIS FAILURE TO DO SO AND PCR COUNSEL'S FAILURE TO RAISE THIS ISSUE IN THE COURT BELOW CONSTITUTED THE INEFFECTIVE ASSISTANCE OF COUNSEL. (Not Raised Below)

POINT IV

THE GUILTY PLEAS MUST BE VACATED BECAUSE THE DEFENDANT DID NOT ENTER INTO THE PLEA VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY AND WAS NOT INFORMED ABOUT OR AWARE OF THE PENAL AND COLLATERAL CONSEQUENCES OF THE PLEA AGREEMENT.

POINT V

THE PCR COURT SHOULD HAVE CONDUCTED AN EVIDENTIARY HEARING TO DETERMINE THE INEFFECTIVE ASSISTANCE OF COUNSEL ISSUE AND OTHER ISSUES RAISED IN THE DEFENDANT'S POST-CONVICTION RELIEF PETITION.

POINT VI

REVERSAL IS REQUIRED IN THIS CASE BECAUSE OF THE CUMULATIVE EFFECTS OF THE ERRORS DURING THE SENTENCING HEARING AND INEFFECTIVENESS OF APPOINTED TRIAL COUNSEL.

We have considered these arguments in light of the record and applicable legal standards. We affirm substantially for the reasons expressed by Judge Vena.

When the hearing on defendant's PCR petition was held, Rule 3:22-12(a) provided:

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.

We have said that

[t]he five-year time limit contained in Rule 3:22-12(a) recognizes 1) "the difficulties associated with a fair and accurate reassessment of the critical events" years after their occurrence, and 2) "the need for achieving finality of judgments and to allay the uncertainty associated with an unlimited possibility of relitigation," and, thus, "strongly encourages those believing they have grounds for post-conviction relief to bring their claims swiftly, and discourages them from sitting on their rights until it is too late for a court to render justice."

[State v. Bringhurst, 401 N.J. Super. 421, 432 (App. Div. 2008) (quoting State v. Mitchell, 126 N.J. 565, 575-76 (1992)).]

While the Rule's time constraints may be relaxed pursuant to Rule 1:1-2, relaxation is only appropriate "under exceptional circumstances. The court should consider the extent and cause of the delay, prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an 'injustice' sufficient to relax the time limits." State v. Afanador, 151 N.J. 41, 52 (1997) (citing Mitchell, supra, 126 N.J. at 580). "[F]or the petitioner to allege simply that an injustice has transpired is not enough." Mitchell, supra, 126 N.J. at 579.

We agree with Judge Vena that defendant failed "to provide sufficient facts or evidence to support his claim" that an injustice occurred at any stage of the proceedings, and further failed to set forth any grounds excusing his neglect in filing his PCR petition within time. In this regard, we note that defendant was fully aware of how to file applications with the court, having filed no less than three motions within the first four years following his conviction. We also reject defendant's request, raised for the first time in his appellate brief, to supplement the record so that he can supply additional facts, undisclosed in the brief, that demonstrate excusable neglect.

Putting aside the procedural infirmities, we are firmly convinced that defendant's claims of ineffective assistance of trial and PCR counsel are without merit. See R. 2:11-2(e)(2). To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must "'show[] that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Defendant must show by "a reasonable probability that" the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58. "To set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases'; and (ii) 'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996)).

As to PCR counsel, the Court has stated:

PCR counsel must communicate with the client, investigate the claims urged by the client, and determine whether there are additional claims that should be brought forward. Thereafter, counsel should advance all of the legitimate arguments that the record will support. If after investigation counsel can formulate no fair legal argument in support of a particular claim raised by defendant, no argument need be made on that point. Stated differently, the brief must advance the arguments that can be made in support of the petition and include defendant's remaining claims, either by listing them or incorporating them by reference so that the judge may consider them.

[State v. Webster, 187 N.J. 254, 257 (2006).]

"The remedy for counsel's failure to meet the[se] requirements . . . is a new PCR proceeding." State v. Hicks, 411 N.J. Super. 370, 376 (App. Div. 2010) (citing State v. Rue, 175 N.J. 1, 4 (2002)).

Defendant's claims regarding his trial counsel's ineffective assistance at the plea negotiation stage or at sentencing are nothing but "bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Defendant fails: to specify what investigation counsel failed to perform; or, to demonstrate that any claim of diminished capacity, either at trial or sentencing, was or could have been supported by expert proof; or, to enunciate the facts supporting his claim that counsel should have requested an identification hearing or that his statement to the police was involuntary and subject to suppression; or, to raise a colorable claim that his guilty plea was not knowing and voluntary.

Regarding PCR counsel's alleged shortcomings, defendant claims that he provided a "deficient supplemental brief that . . . did not address the issue of excusable neglect." While not contained in PCR counsel's brief, the issue was addressed at the hearing. Without any plausible explanation offered by defendant, other than a professed ignorance of the law, PCR counsel lacked the requisite ammunition to demonstrate "excusable neglect." We think any criticism of PCR counsel's efforts regarding other issues is misplaced, since the brief and argument indicate he raised claims as to the failure of trial counsel to challenge the admissibility of defendant's statements to the police, and his failure to proffer a diminished capacity sentencing argument. In short, any claim that PCR counsel was ineffective is without merit. See R. 2:11-3(e)(2).

 
Affirmed.

Rule 3:22-4 has since been comprehensively revised, effective February 1, 2010.

The Rule has been amended, effective February 1, 2010.

(continued)

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A-3947-08T4

August 2, 2010