STATE OF NEW JERSEY v. RICHARD DIBENEDETTI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6009-07T46009-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD DIBENEDETTI,

Defendant-Appellant.

_____________________________

 

Submitted January 26, 2010 - Decided

Before Judges Wefing and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. S-334-96.

Richard DiBenedetti, appellant pro se.

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (John J. Scaliti, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the June 4, 2008 order of the trial court denying his motion for reconsideration of the April 25, 2008 order which denied his third petition for post-conviction relief (PCR). We affirm.

In 1996, defendant was indicted for knowing or purposeful murder, N.J.S.A. 2C:11-3(a)(1) and (2); first-degree armed robbery, N.J.S.A. 2C:15-1; felony murder, N.J.S.A. 2C:11-3(a)(3); third-degree possession of a weapon, a knife, with the purpose to use it unlawfully, N.J.S.A. 2C:39-4(d); fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d); and third-degree theft by failure to make required disposition of property, N.J.S.A. 2C:20-9. On April 30, 1997, defendant entered into a negotiated plea agreement whereby he pled guilty to knowing or purposeful murder and armed robbery, and the State agreed to dismiss the remaining charges and to recommend an aggregate sentence of thirty years' incarceration without parole.

On July 1, 1997, defendant filed a pro se motion to withdraw his guilty plea. At sentencing on July 25, 1997, the trial judge denied defendant's motion and proceeded to sentence him to thirty years in prison with a thirty-year parole ineligibility period and a concurrent fifteen-year term on the armed robbery count.

Defendant appealed his sentence pursuant to Rule 2:9-11. At oral argument, he raised a claim that he should have been permitted to withdraw his plea. He argued that since he filed his withdrawal motion pro se, the trial judge should have appointed counsel to argue the motion on his behalf. On February 17, 1998, we issued an order affirming defendant's sentence "without prejudice to defendant's filing a petition for post-conviction relief." State v. DiBenedetti, No. A-1023-97 (App. Div. February 17, 1998). The Supreme Court denied defendant's petition for certification. State v. DiBenedetti, 156 N.J. 380 (1998).

On August 30, 2000, defendant filed a PCR petition seeking to withdraw his guilty plea and claiming ineffective assistance of trial and appellate counsel. He was represented by counsel who filed a supporting brief and presented oral argument on his behalf at a hearing on December 8, 2000. After hearing argument, the PCR judge, who had also presided over defendant's plea and sentence, issued a written opinion denying his PCR petition.

The judge denied defendant's request to withdraw his guilty plea, finding that "at the plea hearing . . . defendant understood his rights[,] . . . stated that no one had coerced him to plea[d] guilty and he was doing so of his own free will." The judge noted further that he

had the opportunity to observe defendant's demeanor and listen to his remarks during the plea hearing. . . .

. . . .

[I]t is clear that the defendant knowingly and voluntarily entered into the subject plea agreement. . . . The factual basis was sufficient to satisfy the elements of purposeful or knowing murder and robbery. The defendant-petitioner has not been prejudiced to the extent that a manifest injustice has resulted.

Defendant appealed and on January 2, 2003, we affirmed. State v. DiBenedetti, No. A-4571-00 (App. Div. January 2, 2003). We held that the "motion to withdraw defendant's guilty plea was properly rejected before sentencing and following the post-conviction relief hearing." We affirmed on this issue for the reasons stated by the PCR judge. The Supreme Court denied certification. State v. DiBenedetti, 177 N.J. 224 (2003).

On March 1, 2004, defendant filed his second PCR petition. He once again argued that he had received ineffective assistance of trial counsel and sought a plenary hearing. On March 3, 2004, the trial judge summarily denied defendant's petition pursuant to Rules 3:22-5 and -12. The judge found that defendant had raised the identical issues both in his prior appeal and in his first PCR petition; the judge further found that defendant's petition was time-barred because it was brought more than five years after entry of the judgment of conviction.

Defendant appealed and we, once again, affirmed. State v. DiBenedetti, No. A-4505-03 (App. Div. January 12, 2005). The Supreme Court denied certification on March 22, 2005. State v. DiBenedetti, 183 N.J. 217 (2005).

Defendant filed his third PCR petition in November 2005, and filed an amended application in April 2007. He asserted claims of ineffective assistance of trial, appellate and PCR counsel, citing the following: (1) failure to move to suppress his statement; (2) failure to seek dismissal of the indictment for prosecutorial misconduct; and (3) failure to "investigate" the matter properly.

On April 11, 2008, defendant appeared before another PCR judge who, after hearing argument, denied the petition. The judge found that defendant's petition was time-barred under Rule 3:22-12, and that there was no basis "to relax the time bar . . . ."

Defendant filed a motion for reconsideration, which the trial judge denied in a written opinion on June 4, 2008, noting that (1) defendant's third PCR petition was untimely filed; and (2) defendant was not entitled to assignment of counsel on a third PCR petition because he had failed to show "good cause" warranting such assignment. R. 3:22-6(b).

In this appeal, defendant raises the following contentions for our consideration:

POINT I

ALL COUNSEL FROM TRIAL, APPELLATE, PCR AND JAILHOUSE HAVE DENIED ME EFFECTIVE ASSISTANCE OF COUNSEL THEREBY DENYING ME MY FOURTH, FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHTS[] IN FAILING TO ADDRESS THE ISSUE THAT I WAS DENIED MY SIXTH AMENDMENT RIGHT TO COUNSEL WHEN I SOUGHT TO WITHDRAW MY PLEA PRIOR TO SENTENCING.

POINT II

I WAS DENIED MY SIXTH AMENDMENT RIGHT TO COUNSEL, WHEN THE COURT FAILED TO CONDUCT A FARETTA/CRISAFI HEARING, AND FORCED ME TO PROCEED PRO SE AT A CRITICAL STAGE, SUBSEQUENTLY THEN WAS I DENIED MY SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, AND MY FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS, DUE TO ALL COUNSEL'S [SIC] FAILURE TO BRING THIS AS AN ISSUE IN ALL PRIOR PROCEEDINGS.

POINT III

MY ISSUES PRESENTED IN MY THIRD PETITION FOR POST CONVICTION RELIEF OBVIATE ANY TIME OR PROCEDURAL BARS AS THEY ARE OF A CONSTITUTIONAL MAGNITUDE, CREATE A SERIOUS INJUSTICE IF ENFORCED, AND ARE OF PLAIN ERROR AS I HAVE ALWAYS BEEN DENIED MY SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS, DUE TO ALL COUNSEL'S [SIC] FAILURE TO BRING ALL OF THESE ISSUES CORRECTLY IN ALL PRIOR PROCEEDINGS.

Having reviewed these contentions in light of the record and the controlling legal principles, we are satisfied they are without sufficient merit to warrant discussion in a written opinion[,]" Rule 2:11-3(e)(2), beyond the following comments.

Defendant contends that because his claims of ineffective assistance of counsel are of constitutional dimension, his third PCR petition should not be deemed time-barred pursuant to Rule 3:22-12. Rule 3:22-2(a) does identify as a cognizable basis for PCR relief the "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey[.]" Nonetheless, such a petition must comport with the time limits of Rule 3:22-12(a), which provides that other than a "petition to correct an illegal sentence[,] . . . [n]o . . . petition shall be filed more than 5 years after rendition of the judgment . . . sought to be attacked unless it alleges unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect."

"Excusable neglect" is not an issue here. Defendant has been quite vigilant in pressing his cause before the trial and appellate courts of this State. We are satisfied that the PCR judge properly found defendant's third PCR petition to be time-barred under Rule 3:22-12.

The gravamen of defendant's quest is to have a hearing on his motion to withdraw his guilty plea. He raised this request in his first PCR petition and the judge denied it on the merits, finding that defendant's guilty plea was knowing and voluntary.

In February 2009, the Supreme Court reviewed the standards governing motions to withdraw a guilty plea in State v. Slater, 198 N.J. 145 (2009). There the Court identified four factors

that trial judges are to consider and balance . . . in evaluating motions to withdraw a guilty plea: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.

[Id. at 157-58.]

The Court did not discuss the retroactive effect of its decision and we discern no basis to extend retroactivity of the so-called "Slater factors" to defendant. Nonetheless, we consider those factors informative in assessing his claim. We are satisfied that nowhere in any of defendant's PCR petitions or appeals has he asserted a "colorable claim of innocence[,]" id. at 157, in support of his request to withdraw his guilty plea. Rather, he has asserted certain trial errors, such as counsel's failure to suppress his statement, investigate his case, and move to dismiss the indictment for prosecutorial misconduct. His charges were resolved through a plea bargain. Moreover, that resolution occurred thirteen years ago, which, in our view, raises a presumption of prejudice to the State.

As noted, defendant's request to withdraw his plea was denied on the merits in his first PCR petition in December 2000; we affirmed in January 2003. Defendant has presented no basis to re-visit those prior rulings.

 
Affirmed.

(continued)

(continued)

9

A-6009-07T4

May 17, 2010