STATE OF NEW JERSEY v. DENNIS CLIFFORD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4658-07T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DENNIS CLIFFORD,

Defendant-Appellant.

___________________________________

September 15, 2010

Submitted August 31, 2010 - Decided

Before Judges Simonelli and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 00-04-1122 and 00-10-2923.

Yvonne Smith Segars, Public Defender, attorney for appellant (Durrell Wachtler Ciccia, Designated Counsel, of counsel and on the brief).

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

PER CURIAM

Defendant Dennis Clifford appeals from the denial of his petition for post conviction relief (PCR) grounded on ineffective assistance of PCR counsel. We affirm.

Defendant was charged in two indictments and an accusation with numerous first-, second-, third- and fourth-degree offenses. Defendant pled guilty under Indictment No. 00-04-1122 to first-degree robbery, N.J.S.A. 2C:15-1; third-degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-4d; two counts of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and second-degree eluding police, N.J.S.A. 2C:29-2b. Defendant pled guilty under Indictment No. 00-10-2923 to first-degree carjacking, N.J.S.A. 2C:15-2; third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a; third-degree receiving stolen property, N.J.S.A. 2C:20-7; and fourth-degree resisting arrest, N.J.S.A. 2C:29-2. Defendant pled guilty under Accusation No. 01-03-397 to third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d.

At the plea hearing, as to Indictment No. 00-04-1122, defendant admitted that he threatened the victim with a knife and dovetail saw in order to rob him; attempted to escape in an automobile as the police pursued him; traveled at a high rate of speed that could have caused bodily injury or a serious accident; and assaulted a police officer during his attempt to avoid apprehension.

Defendant also acknowledged that (1) the plea agreement provided for a sentence of ten years subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for Indictment No. 00-04-1122, a consecutive twenty years subject to NERA on Indictment No. 00-10-2923, and a consecutive five years on Accusation No. 01-03-397; (2) a parole disqualifier would apply no matter what sentence the trial judge imposed, and he discussed this with his attorney; (3) he understood and had no questions about the parole disqualifier; (4) his attorney assisted him in answering the plea forms; and (5) he signed the NERA plea form. That form advised defendant that he was subject to a five-year term of parole supervision if convicted of a violent first-degree crime.

At sentencing, defendant again acknowledged that the plea agreement provided for a ten-year sentence subject to NERA on Indictment No. 00-04-1122; however, he challenged the applicability of NERA to Indictment No. 00-10-2923. The trial judge found that NERA inapplicable to Indictment No. 00-10-2923 because the victim did not suffer serious bodily injury. The judge found NERA applicable to Indictment No. 00-04-1122 because defendant used a weapon to threaten the victim and assaulted a police officer. The judge concluded that

The facts of the case certainly in conjunction with the Prosecutor's election to request the application of [NERA] and in conjunction with the defendant's acceptance of that in the plea agreement certainly does constitute and amount to a violent crime.

The judge sentenced defendant to a fifteen-year term of imprisonment on Indictment No. 00-04-1122 subject to NERA; a concurrent fifteen years on Indictment No. 00-10-2923; and a concurrent four years on Accusation No. 01-03-397. The judge entered three judgments of conviction on May 4, 2001. Defendant did not appeal his conviction or sentence.

Defendant claims that on February 9, 2006, he mailed a pro se PCR petition to the Essex County Criminal Division manager for filing. However, although there is an "Inmate Package Outgoing Invoice" evidencing defendant's mailing of the petition to the trial judge, the Office of the Public Defender, and the Office of the Essex County Prosecutor, there is no such document for the Criminal Division Manager. The Office of the Public Defender received a copy of the petition and on February 16, 2006, instructed defendant to file the petition with the Essex County Criminal Division Manager's office in order to determine whether counsel should be appointed to represent him. Defendant did not file the petition until September 12, 2006. Counsel was assigned on September 22, 2006, and subsequently submitted a brief contending that trial counsel was ineffective in failing to challenge the applicability of NERA to both indictments, and advise defendant of the NERA post-incarceration period of parole supervision.

In a February 28, 2008 written opinion, the trial judge denied the petition on procedural grounds. After finding not credible defendant's claim that he mailed his PCR petition to the Criminal Division Manager on February 9, 2006, the judge concluded that the petition was untimely, and defendant failed to establish excusable neglect.

The judge also denied the petition on the merits concluding that defendant was informed of the NERA parole supervision requirement at the plea hearing and signed the NERA form that expressly set forth the parole supervision requirement. The judge also concluded that NERA applied to Indictment No. 00-04-1122. This appeal followed.

On appeal, defendant contends that PCR counsel was ineffective in failing to adequately address the question of when his pro se PCR petition was filed, and file "a skillfully crafted certification from trial counsel" setting forth trial counsel's recollection of his representation of defendant. We disagree.

The general time limit on a PCR petition is five years "after rendition of the judgment or sentence sought to be attacked," unless the additional delay reflects the defendant's "excusable neglect." R. 3:22-12(a).

In the context of post-conviction relief, a court should only relax the bar of Rule 3:22-12 under exceptional circumstances. The court should 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" sufficient to relax the time limits. Absent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay. As time passes, justice becomes more elusive and the necessity for preserving finality and certainty of judgments increases.

[State v. Afanador, 151 N.J. 41, 52 (1997) (internal citations omitted).]

Further, "[t]o establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate [first] that . . . [defense] counsel's performance was deficient," and second, that "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Preciose, 129 N.J. 451, 463-64 (1992) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984)); see also State v. Fritz, 105 N.J. 42, 58 (1987). "When a guilty plea is part of the equation, . . . '[t]o 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) (alteration in original)).

Here, the judgment of conviction was entered on May 4, 2001, and defendant did not file his PCR petition until September 12, 2006. The record does not support defendant's claim that he mailed the petition to the Essex County Criminal Division Manager on February 9, 2006. Defendant also provides no reason why he failed to file his petition until September 12, 2006 after having been directed to do so in February 2006. Accordingly, the trial judge correctly concluded that defendant's petition was untimely, and that defendant failed to establish excusable neglect.

Even if defendant had timely filed his PCR petition, the trial judge properly denied it on the merits. With respect to Indictment No. 00-04-1122, there is no doubt that at the plea hearing, defendant knew about NERA's applicability and the post-incarceration period of parole supervision. Defendant discussed these issues with his attorney, signed the NERA plea forms with his attorney's assistance, and was advised of these issues by the trial judge. Further, as the judge correctly found, NERA applied to Indictment No. 00-04-1122 because defendant used a deadly weapon to threaten his victim and assaulted a police officer. Accordingly, a challenge to the applicability of NERA to that indictment would have been unsuccessful. "The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596, 625 (1990); see also Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693 (indicating that the test is "reasonableness").