STATE OF NEW JERSEY v. ROY WATSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0627-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROY WATSON,

Defendant-Appellant.

_________________________________

December 7, 2011

Submitted November 28, 2011 - Decided

Before Judges Sabatino and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 90-12-1762.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from a May 7, 2009 order denying his petition for post-conviction relief (PCR). He contends that the judge erred by dismissing his petition as time-barred. We disagree and affirm.

In 1990, defendant used a lead pipe and brutally attacked and murdered an elderly husband and wife in their bedroom. The murders occurred during the course of a robbery after defendant burglarized their home. Defendant's motive was to obtain money to purchase drugs. The evidence against defendant was overwhelming.

At the conclusion of a jury trial in 1991, defendant was convicted of second-degree burglary, N.J.S.A. 2C:18-2a; two counts of first-degree robbery, N.J.S.A. 2C:15-1; four counts of first-degree felony murder, N.J.S.A. 2C:11-3a; and two counts of first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3a(1), (2). After the appropriate mergers, the judge sentenced defendant on the murder convictions to two consecutive terms of life in prison, each with a thirty-year period of parole ineligibility, concurrent to ten years on the burglary count and twenty years on each of the robbery counts. We affirmed the convictions in an unpublished opinion. State v. Watson, No. A-3328-91 (App. Div. December 17, 1993). The Supreme Court denied certification. State v. Watson, 135 N.J. 468 (1994).

On February 3, 2006, fourteen years after his sentence, defendant filed his petition for PCR.1 Defendant primarily contended that his trial counsel was ineffective by failing to (1) "investigate and present [a] mental-state defense"; and (2) "challenge [his] competency[.]" He argued that he had been a patient at various psychiatric hospitals before his convictions, and had been diagnosed in 2005 with a schizoaffective disorder "manifested by auditory hallucinations, bouts of depression that include anhedonia, isolation, low self-esteem, lethargy, and poor appetite."

Defendant argued that his "long-standing mental illness" constituted "excusable neglect" warranting relaxation of the five-year period for filing PCR petitions pursuant to Rule 3:22-12. Defendant contended that he did not know about the deadline because of his mental illness, and that the interests of justice required relaxation of the five-year time bar.

The judge assigned the PCR application, Judge Mitchel E. Ostrer,2 initially issued an order providing for the release of defendant's mental health records between 1991 and 2005. Defendant's PCR counsel objected and "sought initial exclusive review of the records." The judge then entered an order allowing defense counsel "alone to review [defendant's] medical records from 1991 to 2006 from the County Correction Center and the New Jersey State Prison." After completing his review of defendant's medical records, defense counsel informed the judge that "[defendant] intended to provide no further support [for] his claim of excusable neglect."

On May 7, 2009, Judge Ostrer issued a detailed written opinion and dismissed the petition for PCR. He determined, without an evidentiary hearing, that defendant failed to establish excusable neglect to justify relaxing the five-year PCR time bar, and that the interests of justice did not require an extension of time.

On appeal, defendant raises the following point:

DEFENDANT'S PCR PETITION SHOULD NOT HAVE BEEN TIME-BARRED; THEREFORE, THIS MATTER MUST BE REMANDED FOR THE PCR COURT TO ADDRESS THE SUBSTANTIVE ISSUES RAISED BY DEFENDANT.

Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-85, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 691-92 (1984). "[W]hether retained or appointed, [counsel must] ensure that the trial is fair[; therefore], 'the right to counsel is the right to the effective assistance of counsel.'" Id. at 685-86, 104 S. Ct. at 2062-63, 80 L. Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed. 2d 763, 773 n.14 (1970)). The New Jersey Constitution affords the same right to counsel. N.J. Const. art. I, 10; State v. Fritz, 105 N.J. 42, 58 (1987).

In order to establish a case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the two-pronged test established by Strickland. First, defendant must show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The precepts of Strickland and its tests have been adopted in New Jersey. Fritz, supra, 105 N.J. at 58.

There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 61, defendant must demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt." United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).

An evidentiary hearing is required only when the facts viewed in the light most favorable to defendant would entitle a defendant to PCR. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). This State's Supreme Court has noted that there is a "pragmatic dimension" to this inquiry, explaining:

If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted.

[Ibid. (citations omitted).]

To protect against addressing endless issues in piecemeal fashion, certain procedural safeguards exist. As our Supreme Court stated in State v. Echols:

Because post-conviction relief is not a substitute for direct appeal and because of the public policy "to promote finality in judicial proceedings," State v. McQuaid, 147 N.J. 464, 483, 688 A.2d 584 (1997), our rules provide various procedural bars. For example, a petitioner may be barred from relief if the petitioner could have raised the issue on direct appeal but failed to do so, Rule 3:22-4; the issue was previously decided on direct appeal, Rule 3:22-5; or the petition was filed more than five years after the judgment or sentence that was imposed, Rule 3:22-12. Although our rules provide for certain exceptions to these general rules, we have emphasized that it is important to adhere to our procedural bars.

[ 199 N.J. 344, 357 (2009) (citing State v.Goodwin, 173 N.J. 583, 594 (2002)).]

After considering the record and briefs, we conclude that the arguments advanced by defendant are "without sufficient merit to warrant discussion in a written opinion," Rule 2:11-3(e)(2), and we affirm substantially for the reasons expressed by Judge Ostrer in his detailed and well-reasoned written opinion. We add the following brief comments.

In rejecting defendant's argument that he demonstrated excusable neglect warranting relaxation of the time bar, Judge Ostrer stated:

First, the only evidence of diagnoses of mental illness dates from 2005 -- long after a petition should have been filed -- and from 1991 -- when he apparently was diagnosed with depression -- but nothing in between those years.

. . . .

Second, and even more significantly, there is no evidence that even if the defendant did suffer from mental illness, that such mental illness was untreated to the point that the defendant was incapable of filing a petition within time. Notably, [defendant's] counsel reviewed [defendant's] medical records for that fifteen-year period and discovered nothing worth presenting to the court in further support of the petition. The 2005 diagnosis of schizoaffective disorder noted that the defendant was receiving medication and that his communication skills were fair and his insights good. There is no indication in that medical record that he was incapacitated by his illness in 2005 or before.

Finally, in rejecting defendant's contention that the interests of justice require relaxation of the five-year deadline, Judge Ostrer stated:

[T]he defendant has made at most only bare allegations that he was not competent to stand trial, and that he was not guilty by reason of insanity. The court is mindful that the trial judge conducted a trial in the presence of the defendant and did not find reason to question his competence. Also, the court would need to balance the defendant's interests against the prejudice to the State. . . . [B]are allegations do not suffice to relax the five-year bar.

We discern no basis to disturb these findings and conclude that Judge Ostrer correctly dismissed defendant's petition pursuant to Rule 3:22-12.

1 Defendant filed a fourteen-page pro se letter brief dated February 1, 2006. Assigned counsel thereafter filed a lengthy brief in support of defendant's petition for PCR, arguing:

A. PETITIONER'S TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO GIVE PROPER NOTICE TO THE PROSECUTION REGARDING DOCTOR SAFERSTEIN'S TESTIMONY.

B. PETITIONER'S TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO FORCEFULLY ARGUE FOR A DISMISSAL BASED ON THE STATE'S FAILURE TO ESTABLISH BEYOND A REASONABLE DOUBT THE IDENTITY OF THE PERPETRATOR.

C. PETITIONER'S TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO ARGUE MORE VIGOROUSLY TO CALL JEROME BLASSINGAME AS A WITNESS.

D. PETITIONER'S TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO ARGUE AN INSANITY DEFENSE.

E. PETITIONER'S TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OBJECT TO THE PROSECUTION VOUCHING FOR THE CREDIBI[LI]TY OF HIS WITNESS.

F. PETITIONER'S TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OBJECT TO IRRELEVANT CHARACTER TESTIMONY OF DOCTOR KLEMPNER.

G. PETITIONER'S TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OBJECT TO TESTIMONY THAT PORTRAYED PETITIONER AS A CRIMINAL.

H. PETITIONER'S TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OBTAIN A PLEA AGREEMENT ON HIS CLIENT'S BEHALF.

I. PETITIONER'S ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO REQUEST THE LESSER INCLUDED PASSION/PROVOCATION CHARGE.

J. PETITIONER'S TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO ALLOW HIS CLIENT TO TESTIFY.

K. PETITIONER'S TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO HAVE THE JURY BE CHARGED ON THE PETITIONER'S ELECTION NOT TO TESTIFY.

L. PETITIONER'S TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO ARGUE ON HIS CLIENT'S BEHALF AT SENTENCING.

2 Judge Ostrer did not preside over the trial.