STATE OF NEW JERSEY v. HAKIM EVANS

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2242-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HAKIM EVANS,

Defendant-Appellant.

May 11, 2011

 

Submitted February 7, 2011 Decided

 

Before Judges Sabatino and Alvarez.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 98-12-1644, 99-03-0336, and 99-04-0374.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief).

 

BruceJ. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Defendant Hakim Evans appeals the April 20, 2009 denial of his application for post-conviction relief (PCR) without a hearing. For the reasons that follow, we affirm.

On August 4, 1999, pursuant to an agreement with the State, defendant entered guilty pleas to two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a), and two counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), contained in Indictment No. 98-12-1644; the balance of the charges were dismissed. Those offenses occurred August 5, 1998. On a second indictment, No. 99-03-0336, defendant entered a guilty plea to third-degree theft from a person, N.J.S.A. 2C:20-2b(2)(d), amended from a second-degree robbery charge. This offense occurred May 25, 1998. On a third indictment, No. 99-04-0374, defendant entered guilty pleas to amended charges of third-degree criminal restraint, N.J.S.A. 2C:13-2, and third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a. Those offenses took place on September 6, 1998. Defendant was sentenced to an aggregate term of twelve years, subject to the requirements of Megan's Law, N.J.S.A. 2C:7-1 to -21, Parole Supervision for Life, N.J.S.A. 2C:43-6.4, and the eighty-five percent parole disqualifier found in the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

When defendant entered his guilty pleas, the Sexually Violent Predator Act (SVPA) had not been enacted. See N.J.S.A. 30:4-27.24 to -27.38. By the time defendant was sentenced on April 3, 2000, the SVPA had been adopted, but its provisions regarding the possibility of civil commitment were not mentioned during the proceeding. In a supplement to defendant's plea form, however, titled "Additional Questions for Certain Sexual Offenses," paragraph six, defendant was asked the following:

Do you understand that if you are incarcerated as a repetitive and compulsive sex offender you may be subject to involuntary commitment following the expiration of your sentence?

 

Defendant responded in the affirmative.

Defendant's appeal was assigned to an excessive oral argument calendar. See R. 2:9-11.

On January 30, 2008, defendant filed a pro se petition for PCR, amended on July 9, 2008. Oral argument was first conducted on December 4, 2008. The court took the matter under advisement, planning to render a decision in writing. Shortly thereafter, on January 8, 2009, hours after defendant's release from prison on parole, he was returned to custody because SVPA civil commitment proceedings had been filed. Counsel therefore submitted a supplemental brief on the issue of commitment and additional argument was heard on March 12, 2009. On April 15, 2009, the court issued a written decision denying the application.

The PCR judge concluded Rule 3:22-12(a)'s five-year time bar prevented consideration of defendant's petition as his only explanation for failing to timely file was that he did not learn the PCR process existed until 2007. The judge found lack of knowledge regarding PCR was not the equivalent of excusable neglect, and further opined that granting the application eight years1 after the fact would result in extreme prejudice to the State.

Petitioner's concurrent request for leave to withdraw his guilty plea was also denied. The PCR judge determined the plea withstood scrutiny pursuant to the four-part test enunciated in State v. Slater, 198 N.J. 145 (2009). "[A]t every turn" defendant indicated he wanted to plead guilty, stated he was not being forced or coerced into doing so, and responded to the plea judge's thorough examination. Defendant established an adequate factual basis on all counts and stated he was satisfied with his attorney.

On the Indictment No. 98-12-1644 offenses, the PCR judge disagreed that co-defendant Terence M. Kinchen's factual basis for entry of his guilty plea exculpated defendant. Furthermore, the State's failure to provide defendant Kinchen's plea testimony was not a Brady2 violation because both defendant and the State had equal access to it.

Lastly, the court considered defendant's contention that, since he was not advised of the SVPA consequences at any stage of the proceedings, he was entitled to vacate his plea under State v. Bellamy, 178 N.J. 127 (2003). The judge found this argument was time-barred by Rule 3:22-12(a) and further barred by Rule 3:22-4(a), which precludes consideration of issues on PCR that should have been raised on direct appeal.

Defendant raises the following points in his brief:

POINT I

DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD NOT BE TIME BARRED BECAUSE DEFENDANT'S DELAY IN FILING WAS DUE TO EXCUSABLE NEGLECT AND THE INTERESTS OF JUSTICE REQUIRE HIS CLAIMS BE HEARD

 

POINT II

TRIAL AND APPELLATE COUNSELS' REPRESENTATION OF DEFENDANT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL ENTITLING DEFENDANT TO POST CONVICTION RELIEF

 

POINT III

DEFENDANT'S PLEA WAS NEITHER VOLUNTARY OR KNOWING AND MUST BE WITHDRAWN AS A MATTER OF LAW

 

POINT IV

DEFENDANT'S DUE PROCESS RIGHTS WERE VIOLATED WHEN THE STATE WITHHELD EVIDENCE REGARDING CO-DEFENDANT'S PLEA WHICH WOULD HAVE PROVIDED EXCULPATORY [SIC] TOWARD DEFENDANT'S CHARGE OF AGGRAVATED SEXUAL ASSAULT

 

POINT V

REMAND FOR AN EVIDENTIARY HEARING ON POST CONVICTION RELIEF IS REQUIRED BECAUSE THE DEFENDANT HAS PUT FORTH PRIMA FACIE EVIDENCE ENTITLING HIM TO SUCH RELIEF

 

We affirm for the reasons stated by Judge Nieves in his thorough and cogent opinion with the following brief comments.

a.

We briefly reiterate the relevant rules and standards of review. Rule 3:22-12(a)(1) provides that, subject to certain exceptions not relevant to defendant's application, no first petition for PCR

shall be filed . . . more than 5 years after the date of entry . . . of the judgment of conviction that is being challenged unless it alleges facts showing that the delay . . . was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement . . . would result in a fundamental injustice.

The five-year period is not tolled by the filing of appellate proceedings. State v. Dugan, 289 N.J. Super. 15, 19 (App. Div.), certif. denied, 145 N.J. 373 (1996).

In assessing whether excusable neglect justifies the delay, courts 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." State v. Afanador, 151 N.J. 41, 52 (1997) (internal citation omitted). "Absent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay." Ibid.

The analysis in State v. Cummings, 321 N.J. Super. 154 (App. Div. 1999), is instructive. In that case, the defendant's petition was filed nearly ten years after the judgment of conviction. Id. at 165. The defendant contended the delay was attributable to his illiteracy and his lack of understanding that he had the option to seek "post-conviction relief." Id. at 166. These grounds were rejected as a basis for exemption from the five-year time bar as such "conclusory statements" could not constitute excusable neglect. Ibid.

As we have said, the PCR judge also applied Rule 3:22-4(a) to defendant's claims. In pertinent part, that rule bars a petitioner raising as grounds for relief issues that could have previously been raised on appeal except where "enforcement of the bar to preclude claims, including [those] for ineffective assistance of counsel, would result in fundamental injustice." R. 3:22-4(a)(2).3

Where a PCR petition is premised on the ineffective assistance of counsel, New Jersey courts are guided by the two-part Strickland/Fritz framework:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

 

[Strickland v. Washington,4 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).]

The second prong of this test is satisfied by a showing 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. In the case of a defendant who enters a guilty plea, he or she must demonstrate a reasonable probability that, but for counsel's errors, no plea would have been entered and "he [or she] would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985).

Post-conviction relief constitutes "New Jersey's analogue to the federal writ of habeus corpus." State v. Preciose, 129 N.J. 451, 458 (1992). A defendant making a prima facie showing of entitlement to such relief, that is, "demonstrat[ing] a reasonable likelihood that his or her claim will ultimately succeed on the merits[,]" is generally entitled to an evidentiary hearing. State v. Marshall, 148 N.J. 89, 158 (1997). Absent such a showing, however, no evidentiary hearing is required. Cummings, supra, 321 N.J. Super. at 170.

b.

We agree with the PCR judge that the delay was not occasioned by excusable neglect. As in Cummings, this defendant claims his failure to file within five years of his sentence is attributable to his lack of knowledge that the procedure was available. See id. at 162-63. That is simply not a sufficient basis to allow the late filing. See e.g. State v. DiFrisco, 187 N.J. 156, 166-67 (2006).

The insufficiency of his assertion of excusable neglect stands in stark contrast with the prejudice that would inure to the State if required to try these matters many years after the imposition of defendant's April 3, 2000 sentences. See State v. Murray, 162 N.J. 240, 249 (2000) (observing the public policy behind the five-year time bar includes passage of time increasing "the difficulties associated with a fair and accurate reassessment of the events," the societal need for finality in judgments, and the need to encourage prompt filings before "it is too late for a court to render justice") (internal citations omitted). Accordingly, we find defendant's claims are time-barred pursuant to rule and will not discuss them further, with the exception of the SVPA.

c.

In Bellamy, supra, our Supreme Court found that notions of fundamental fairness required that "prior to accepting a plea to a predicate offense, the trial court must inform a defendant of the possible consequences under the [SVPA]." 178 N.J. at 131. In that case, the defendant was sentenced on June 23, 2000, and, on August 23, 2000, days before his brief incarceration was scheduled to end, the State sought his commitment. Id. at 133. The Court found that, although not a direct penal consequence of the entry of his guilty plea, the trial court should nonetheless have informed the defendant of the potential for commitment. Id. at 138. The Court further determined this new requirement would not be given "complete retroactivity," because to do so would not advance the purpose of the rule, trial courts had reasonably relied upon the penal/collateral distinction in not giving such warnings to defendants, and it "would have a disruptive effect on the administration of justice." Id. at 141-42. Accordingly, the rule was given effect "only to cases pending direct review at the time of the rule's announcement." Id. at 142-43. This decision issued December 11, 2003. Clearly, defendant's matter is one that would ordinarily fall within the "pipeline," because "all avenues of direct review" had not been exhausted. Id. at 143.

In State v. J.K., 407 N.J. Super. 15 (App. Div. 2009), we considered a PCR application by a defendant whose sentences for convictions of predicate offenses occurred in 1995, some four years prior to the effective date of the Act, who was subsequently civilly committed under the SVPA. The defendant contended he had received ineffective assistance of counsel because he had not been informed of the possibility that he might suffer the retroactive application of a law such as the SVPA. Id. at 18. As we concluded, his attorney could not be faulted for failing to advise him of a change in the law that had not yet occurred, and therefore he could not meet the first prong of Strickland, that counsel's performance fell "below an objective standard of reasonableness." Id. at 21.

In this case, defendant contends his trial attorney failed to explain to him that the new law, contrary to the suggestion in the language in the plea form, might apply even if he was not found to be a repetitive and compulsive offender. He makes the further claim that his appellate attorney was ineffective for failing to raise the SVPA issue on appeal. He asserts that, as a result, his plea was not knowing and he must be granted leave to withdraw pursuant to Slater, supra, 198 N.J. at 157-58.

But this PCR petition, not filed until eight years after defendant was sentenced, and three years after his appeal was decided, is simply too late. Defendant has not demonstrated convincing "excusable neglect."

Nor do the interests of justice demand such relief. See State v. Goodwin, 173 N.J. 583, 594 (2002). After all, if defendants convicted years prior to enactment of the SVPA are nonetheless subjected to the same involuntary commitment process, it cannot be said the commitment of this defendant, who had some notice of the existence of the Act when he entered his sentence, is a greater injustice. As in J.K., the State would be faced with the prospect of retrials with multiple sexual assault victims many years after the fact, and all the associated administrative hurdles and emotional harm that would be visited upon them. J.K., supra, 407 N.J. Super. at 20. Application of the time bar is not overcome by the interests of justice.

Nor do we agree with defendant's argument that, under Slater, he should be granted leave to withdraw his guilty plea because it was not made knowingly. Rule 3:21 provides that a motion to withdraw a plea "of guilty or non vult shall be made before sentencing, but the court may permit it to be made thereafter to correct a manifest injustice." In Slater, supra, the Court announced a four-part test to be employed in assessing the merits of such applications: (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. 198 N.J. at 157-58.

As to the first factor, defendant has not clearly asserted a colorable claim of innocence, relying instead solely on his co-defendant's rambling and incoherent description of defendant's interactions with only one victim. No new facts have been presented other than Kinchen's at times unintelligible and inconclusive in-court statement with regard to defendant's conduct. We simply do not agree that it was exculpatory, and it appears to be the only basis for defendant's claim of innocence. In evaluating the evidence, the court should not "conduct a mini trial"; rather, we should "simply consider whether a defendant's assertion of innocence is more than a blanket, bald statement and rests instead on particular, plausible facts." Id. at 158-59. In this respect, defendant's position lacks any support in the record.

To assess the nature and strength of defendant's reasons for a requested withdrawal, the second factor, we focus on the "basic fairness of enforcing a guilty plea." Id. at 159. Examples cited by the Slater court warranting withdrawal include where:

(1) the court and prosecutor misinformed the defendant about a material element of the plea negotiation, which the defendant relied on in entering his plea, see [State v.] Nichols, [ ] 71 N.J. [358,] 361 [1976] (finding defendant misinformed about whether he would receive concurrent sentences if convicted); (2) the defendant was not informed and thus did not understand material terms and relevant consequences of the guilty plea, namely, the direct, penal consequences of the plea, see State v. Johnson, 182 N.J. 232, 241 (2005) (permitting plea withdrawal where defendant was unaware of period of extended parole ineligibility under No Early Release Act, N.J.S.A. 2C:43-7.2); State v. Kiett, 121 N.J. 483, 499 (1990) (allowing withdrawal where juvenile mistakenly believed he faced death penalty and entered guilty plea to avoid its imposition); State v. Howard, 110 N.J. 113, 118 (1988) (allowing withdrawal where defendant was not informed of parole eligibility implications of sentence to Adult Diagnostic and Treatment Center); but see State v. Heitzman, 107 N.J. 603, 604 (1987) (finding failure to warn of collateral consequence of guilty plea--forfeiture of public employment--did not justify vacating plea); (3) defendant's reasonable expectations under the plea agreement were not met, see State v. Kovack, 91 N.J. 476, 483 (1982) (finding sentence improper where plea agreement did not contemplate period of parole ineligibility); State v. Marzolf, 79 N.J. 167, 183 (1979) ("Where the accused's reasonable expectations are defeated, the plea bargain has failed one of its essential purposes, fairness, and a defendant should be permitted to withdraw the plea."); and (4) the defendant has not only made a plausible showing of a valid defense against the charges, but also credibly demonstrated why that defense "was forgotten or missed" at the time of the plea. State v. Gonzalez, 254 N.J. Super. 300, 303 (App. Div. 1992)[.]

 

[Id. at 159-60.]

The prospect of civil commitment is certainly a grave consequence, and Bellamy requires that defendants be advised of this potential prior to and during the entry of a guilty plea. Supra, 178 N.J. at 139-40. Pre-sentence, a failure to so warn would certainly be grounds for withdrawal of a guilty plea. Subject to the higher "manifest injustice" post-sentence standard, however, the strength of defendant's claim is significantly weaker. As we have noted, if the imposition of civil commitment upon defendants who entered guilty pleas years prior to the effective date of the SVPA does not offend notions of fundamental fairness, it is difficult to see why this defendant should be an exception.

The third factor, that defendant's plea was the result of a plea bargain, is to be counted against him, but not given much weight as "the vast majority of criminal cases are resolved through" that process. Slater, supra, 198 N.J. at 161.

The final factor is the extent of prejudice inuring to the State from allowing withdrawal. This assessment is to be engaged in without a "fixed formula[,]" and analyzed solely by the "particulars of each case." Ibid. In J.K., supra, sixteen years had passed from the date of the relevant assaults, as compared to thirteen in this matter. 407 N.J. Super. at 20. As we have said, the prejudice in such situations is monumental:

Prosecutors would be hard pressed to round up these victims, other witnesses, and any other evidence necessary to prosecute these cases at this late date. Further, the memories of the victims and other witnesses may well have faded. And, importantly, the criminal justice system should seek to avoid retraumatizing victims by requiring them to relive their harsh experiences from long ago. Even if they possess sufficient memory . . . they are likely to have moved on with their lives, dealt with their emotional dislocation as best they could, and justifiably believed that the sexual assaults perpetrated upon them were closed cases that had finally been resolved.

 

[Ibid.]

 

In light of the nature of the charges, the number of victims, and the number of years that have passed since the events giving rise to these charges occurred, the prejudice to the State is overwhelming.

For these reasons, defendant does not satisfy the Slater test. His application to withdraw his guilty plea was therefore properly denied.

A

ffirmed.

1 The relevant time frame was actually nine years.

2 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

3 The PCR judge applied the prior version of the rule, as its language was subsequently modified to expressly provide that ineffective assistance of counsel is included within the concept of "manifest injustice." See Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 3:22-4(a) (2011).

4 Adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42 (1987).