STATE OF NEW JERSEY v. GEORGE C. RILEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4147-08T44147-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GEORGE C. RILEY,

Defendant-Appellant.

_____________________________

Submitted March 23, 2010 - Decided April 29, 2010

Before Judges Parrillo and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 86-03-00365.

George C. Riley, appellant pro se.

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Courtney L. Fallon, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant George C. Riley appeals from an order of the Law Division denying his sixth petition for post-conviction relief (PCR). We affirm.

As we stated in affirming the Law Division's order denying defendant's fifth PCR petition:

By way of background, in 1986, defendant was indicted, tried and convicted of attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(a)(1) (count one); attempted endangerment of the welfare of a child, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4(a) (count two); and attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(b) (count three). The court merged the attempted sexual assault and attempted endangering into the attempted aggravated sexual assault and sentenced defendant to an extended term, imposing a sentence of 20 years in prison subject to a parole ineligibility period of 10 years.

On direct appeal, we reversed defendant's conviction of attempted aggravated sexual assault on the basis of insufficiency of evidence. State v. Riley, No. A-1009-86T4 (App. Div. Dec. 11, 1987) (slip op. at 8-9). We affirmed, however, defendant's conviction of attempted sexual assault, into which lesser included offenses of which he was also convicted had been merged. Ibid. We also vacated the sentence, a twenty-year term subject to a ten-year parole ineligibility period, which had been imposed for the attempted aggravated sexual assault, and remanded for resentencing. Ibid. We pointed out, however, that since both attempted aggravated sexual assault and attempted sexual assault are second-degree crimes, the original sentence could, on reconsideration, nevertheless, be imposed. Ibid. Defendant's petition for certification to the Supreme Court was denied. State v. Riley, 110 N.J. 308 (1988).

. . . .

Following our remand, defendant was resentenced on the attempted sexual assault to the term originally imposed on the attempted aggravated sexual assault. On appeal, we concluded that the Law Division had mistakenly exercised its sentencing discretion by considering inapplicable aggravating factors, and therefore again remanded for resentencing. State v. Riley, No. A-0171-88T4 (App. Div. Jan. 16, 1991). Again the Law Division imposed the same sentence, this time reciting aggravating factors consistent with our opinion and considering the mitigating factors urged by defendant. Again defendant appealed. We considered this third appeal on our Excessive Sentence Oral Argument calendar pursuant to R. 2:9-11. We affirmed. State v. Riley, No. A-0455-91T4 (App. Div. Mar. 23, 1992).

[State v. Riley, No. A-6396-06T4 (App. Div. June 12, 2008) (slip op. at 5-8.]

Apart from these direct appeals, defendant has pursued numerous collateral attacks on his 1986 conviction, practically non-stop, in both federal and state courts. On the federal side, defendant filed a habeas corpus petition in 1988 that was denied, as were all subsequent appeals and applications for reconsideration. In 1994, a second petition for a writ of habeas corpus was dismissed by the Federal District Court citing "abuse of writ" and lack of jurisdiction. Thereafter, motions for reconsideration and appeals were consistently denied, including the denial of three petitions for writ of certiorari by the United States Supreme Court in 1994, 2001 and 2006. Riley v. New Jersey, 549 U.S. 1003, 127 S. Ct. 514, 166 L. Ed. 2d 383 (2006); Riley v. New Jersey, 534 U.S. 925, 122 S. Ct. 281, 151 L. Ed. 2d 206 (2001); Riley v. New Jersey, 513 U.S. 906, 115 S. Ct. 271, 130 L. Ed. 2d 189 (1994).

In state court, prior to the instant application, defendant filed five unsuccessful PCR petitions since he was first convicted in 1986. Apropos to the instant claims, in defendant's third PCR petition, dated January 27, 1998, defendant, through counsel, contended, among other things:

POINT I: SINCE THE DEFENDANT DID NOT INTELLIGENTLY WAIVE HIS RIGHT TO APPELLATE COUNSEL DURING HIS DIRECT APPEAL FOLLOWING HIS CONVICTIONS AT TRIAL, THE DEFENDANT IS ENTITLED TO HAVE THE OFFICE OF THE PUBLIC DEFENDER FILE A NEW NOTICE OF APPEAL; IN THE ALTERNATIVE, THE DEFENDANT IS ENTITLED TO A REMAND TO DETERMINE WHETHER HE INTELLIGENTLY WAIVED HIS RIGHT TO COUNSEL PURSUANT TO STATE V. COON. (NOT RAISED BELOW).

And in a pro se reply brief, defendant reiterated his counsel's argument:

POINT V: DEFENDANT DID NOT KNOWINGLY AND

INTELLIGENTLY WAIVE HIS SIXTH AMENDMENT RIGHT TO APPELLATE COUNSEL ON HIS FIRST APPEAL UNDER THE STANDARDS OF STATE V. COON AND HENDERSON V. FRANK.

We rejected these claims and, finding them without merit, Rule 2:11-3(e)(2), addressed them summarily:

Defendant's contention that he did not "knowingly and intelligently" waive his right to appellate counsel on direct appeal is a claim apparently not made in any prior proceeding, including the third petition for post-conviction relief, denial of which is now before us. Because the issue was not presented to the petition judge, and because at this point in time the issue is not clearly capable of producing an unjust result, we decline to give it substantive consideration on the merits. R. 2:10-2; State v. Macon, 57 N.J. 325 (1971). We note that defendant's reliance on State v. Coon, 314 N.J. Super. 426 (App. Div.), certif. denied, 157 N.J. 543 (1998), is unavailing. Unlike the defendant in Coon, here defendant could indeed have raised this claim in prior proceedings. He was represented by counsel at trial, upon resentencing after his pro se direct appeal, on appeal after resentencing, at a second resentencing hearing, on appeal from the second resentencing, on his first petition for post-conviction relief, and on appeal from the denial of that petition. On other occasions, defendant was assisted by "stand-by counsel." Additionally, the extensive history of this litigation eliminates any viable claim by defendant that he is a victim of fundamental injustice. The judicial system has provided defendant with abundant "fair proceedings" to advance this claim. [State v. Mitchell, 126 N.J. 565, 587 (1992)]. It is now barred. R. 3:22-4.

[State v. Riley, A-5912-97T4 and A-6317-97T4 (App. Div. October 11, 2000) (slip op. at 6-7).]

In his fifth PCR petition, filed February 9, 2007, defendant again argued that his sentence was illegal. In a July 13, 2007 opinion, the PCR court denied the application holding:

The defendant asserts that his petition is not time-barred because his sentence is illegal. This court disagrees.

. . . .

Here, the defendant's sentence is legal. The defendant was convicted of second-degree attempted sexual assault. A crime of the second-degree carries a term of incarceration between ten and twenty years. On September 19, 1986, the late Judge Arnone granted the State's motion for an extended term and sentenced the defendant to twenty years imprisonment with a ten-year period of parole ineligibility. Although the defendant's sentence is at the high end of the range, such a sentence is authorized by the Code and does not exceed any statutory maximums. Consequently, the defendant's sentence is legal as defined in this State's jurisprudence.

[As reproduced in State v. Riley, supra, No. A-6396-06T4 (slip op. at 12).]

On appeal of the denial of his fifth PCR application, defendant argued ineffective assistance of counsel based on, among other things, counsel's claimed failure to "allege a possible due process claim when the Public Defender withdrew in the first appeal and defendant did not waive counsel." Id. at 21. We found this claim "meritless," concluding that "[c]onsidering this is defendant's fifth PCR petition, we are just as satisfied that defendant has failed to make a prima facie showing that assigned counsel failed to comply with his obligations under Rule 3:22-6(d)." Id. at 22.

Defendant's sixth and current PCR petition, filed December 29, 2008, once again sought to vacate his "illegal sentence" because he was not represented by counsel during his direct appeal. Judge Neafsey, the PCR judge, denied the PCR petition on both substantive and procedural grounds, concluding:

Defendant . . . has failed to demonstrate that his sentence was illegal as his sentence did not exceed the penalties by statute and was imposed in accordance with law. State v. Murray, 162 N.J. 240, 247 (2000), [345] N.J. Super. 158 ((App. Div. 2001), certif. denied, 172 N.J. 179 (2002). Defendant was convicted of second-degree attempted sexual assault, which carries a term of incarceration between ten and twenty years. On September 19, 1986, Judge Arnone granted the State's motion for an extended term and sentenced defendant to twenty years imprisonment with a ten-year period of parole ineligibility. On April 8, 1988, defendant was re-sentenced by Judge Arnone to a term of twenty years with a ten year period of parole ineligibility. Defendant was re-sentenced again by Judge Arnone to a term of twenty years with a ten year period of parole ineligibility on July 26, 1991. At defendant's third appeal, which was handled on the Excessive Sentence Oral Argument Calendar, the sentence imposed on defendant by Judge Arnone was affirmed by the Appellate Division on March 23, 1992.

Defendant's claim that his sentence is illegal is procedurally barred under R. 3:22-5 because this issue was previously adjudicated by the Appellate Division on defendant's fifth petition for post-conviction relief, where the court affirmed the Law Division's finding that defendant's sentence is legal. See State v. Riley, No. A-6396-06T4 (App. Div. June 12, 2008) (slip op. at 12-16).]

Defendant's claim that his sentence should be vacated and that he should be allowed a new appeal because he was deprived of counsel during his first direct appeal is time-barred by R. 3:22-12(a) because the judgment of conviction is dated September 24, 1986, which is twenty-two years old, which is well past the five-year time bar. Even if the time is counted from defendant's resentencing on May 26, 1988, defendant's judgment of conviction is still almost twenty-one years old, which is well past the five-year time bar. Defendant has also failed to assert any facts to suggest excusable neglect or exceptional circumstances. State v. Afanador, 151 N.J. 41, 52 (1997).

Defendant's claim that he did not waive his right to appellate counsel on his direct appeal "knowingly and voluntarily" is procedurally barred under R. 3:22-5 because this issue was previously adjudicated by the Appellate Division on defendant's third petition for post-conviction relief, and was found to be barred by R. 3:22-4. See State v. Riley. No. A-5912-97T4, A-6317-97T4 (App. Div. October 11, 2000) (slip op. at 6-7).

Defendant's claim that he did not waive his right to appellate counsel on his direct appeal "knowingly and voluntarily" is procedurally barred under R. 3:22-4 because it could have been raised in any of his prior petitions, enforcement of the bar will not result in fundamental injustice, and denial of relief is not contrary to the Constitution of the United States or the State of New Jersey. "Procedural bars exist in order to promote finality in judicial proceedings." State v. McQuaid, 147 N.J. 464, 483 (1997).

. . . .

Defendant's sixth petition for Post-Conviction Relief is DENIED; and

The court having reviewed the briefs filed by the defendant pro se and the State, and finding good cause has [not] been shown, because defendant's sixth petition for post-conviction relief is seventeen years beyond the time bar for making these claims, and because the court finds no exceptional circumstances or excusable neglect to extend the time bar set forth in R. 3:22-12, [the PCR is dismissed]. . . .

On this appeal, defendant, pro se, argues:

I. Defendant's Claims Are Not Barred By The Provisions Of R. 3:22 As They Assert Constitutional Issues Arising Under The State And Federal Constitutions, That Is, The Complete Denial Of Counsel During Direct Appeal.

II. The PCR Judge Erred By Denying Post-Conviction Relief When Holding That The Issue Of Waiver Of Counsel "Was Previously Adjudicated By The Appellate Division["] On Defendant's Third PCR Because That Court "Declined To Give It Substantive Consideration On The Merits."

III. The Defendant Did Not Knowingly, Intelligently And Voluntarily Waive His Right To Direct Appeal Counsel Who Withdrew Without The Court Holding A Waiver Hearing As Required By Faretta v. California, The Sixth And Fourteenth Amendments.

In his reply brief, defendant reiterates:

I. THE STATE'S ARGUMENT THAT DEFENDANT'S COMPLETE DENIAL OF FIRST APPEAL COUNSEL WAS PREVIOUSLY ADJUDICATED BY THE APPELLATE DECISION RESTS ON A FAULT [sic] PREMISE.

II. THE STATE'S ARGUMENT THAT DEFENDANT'S RELIANCE ON STATE V. COON, IS MISPLACED DEFIES LOGIC.

III. THE PCR COURT ERRED IN NOT GRANTING AN EVIDENTIARY HEARING IN LIGHT OF DEFENDANT'S UNOPPOSED SUPPORTING CERTIFICATION THAT HE DID NOT KNOWINGLY AND VOLUNTARILY WAIVE COUNSEL DURING HIS FIRST APPEAL; AND ERRED IN HOLDING THE ISSUE HAD BEEN PREVIOUSLY DECIDED BY THE APPELLATE COURT.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel and defendant pro se, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Neafsey in his order of March 20, 2009.

 
Affirmed.

(continued)

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RECORD IMPOUNDED