STATE OF NEW JERSEY v. CRAIG SZEMPLE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6199-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CRAIG SZEMPLE,

Defendant-Appellant.

__________________________________

December 16, 2011

Submitted November 30, 2011 - Decided

Before Judges Lihotz and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 92-01-0024.

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

ThomasS. Ferguson,Warren County Prosecutor, attorney forrespondent (DitMosco, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Craig Szemple appeals from an order dismissing his petition for post-conviction relief (PCR). We affirm.

The events underlying the indictment in this case occurred in 1991. Szemple was also the subject of murder charges in Hudson County1 and Morris County.2 The events underlying those indictments took place in 1977 and 1975, respectively, although the indictments were not returned until 1991. The Hudson and Morris indictments were tried first, resulting in convictions.

Szemple was initially represented by George Daggett in all three criminal cases. In 1995, Daggett sought and was granted leave to withdraw as counsel in this case. After the trial judge denied Szemple's request to represent himself, he obtained new counsel.

In 1997, Szemple moved unsuccessfully to have the charges against him dismissed on the grounds that he had been denied his right to a speedy trial. In 1998, he pled guilty to an amended charge of aggravated manslaughter, N.J.S.A. 2C:11-4(a), as a lesser-included offense of capital murder. He also pled guilty to two counts of theft by deception and one count of attempted theft by deception. N.J.S.A. 2C:20-4; N.J.S.A. 2C:5-1.

On April 17, 1998, Szemple was sentenced to life imprisonment, subject to twenty-five years of parole ineligi-bility. That sentence was concurrent to the sentence he received in Hudson County, but consecutive to the sentence he received in Morris County.

Szemple appealed. He argued that the denial of his speedy trial motion and the denial of his request to represent himself were error. State v. Szemple, 332 N.J. Super. 322, 327 (App. Div.), certif. denied, 165 N.J. 604 (2000). He also argued that "the court erred in denying [his] motion to dismiss the indictment because [his] sixth amendment right to effective assistance of counsel was violated." Ibid. Szemple asserted his prior counsel was ineffective by "failing to pursue a speedy trial or dismissal on speedy trial grounds." Ibid.

We disagreed:

to the extent [Szemple] sought a dismissal on the grounds of incompetence of counsel other than related to the lack of speedy trial, we agree with Judge Kingfield that a court in these circumstances cannot evaluate whether the second prong ("prejudice") of the Strickland test is satisfied without a trial actually taking place. [Szemple] does not claim he pled guilty because of the ineffective assistance of counsel who represented him at the time of plea, or even that he pled guilty merely because of the "prejudice" to his defense caused by his prior counsel. In any event, there is no dispute that the [IAC] claim was preserved under the conditional plea only with respect to the speedy trial claim, and [Szemple] does not seek to withdraw his plea. Accordingly, even assuming that some claims of [IAC] may in extraordinary circumstances give rise to the relief [Szemple] seeks, [(dismissal of the indictment),] this is not such a case, and we need not review [Szemple's] claims of [IAC] beyond those contentions preserved for appeal.

[Id. at 328 (internal quotations and citations omitted).]

We rejected Szemple's other arguments and affirmed the judgment of conviction. Id. at 329-30. As noted, the Supreme Court denied certification.

On February 7, 2003, Szemple filed his first PCR petition related to the present matter. In response to the request in the PCR form for the specific "facts upon which the claim for relief is based, legal arguments and all claims," Szemple stated that "legal issues will be raised and addressed when counsel is appointed to represent Craig Szemple." The State moved to dismiss the petition, arguing that Szemple failed to meet the requirements of Rule 3:22-8 because he "did not set forth in any way, shape or form the facts upon which his claim for relief is based, the legal grounds of the complaint asserted, nor the particular relief sought." The PCR judge agreed with the State and dismissed the petition on March 28, 2003.

After obtaining designated counsel, Szemple filed an amended PCR petition on July 23, 2003. That petition asserted:

[Szemple's] trial counsel was grossly ineffective as he improperly investigated this matter, that his representation was tainted by a conflict of interest and as other documents and filings will show, counsel privately and publicly revealed that he believed his client to be guilty, [and] that he did not review discovery. [Szemple] was represented by [Daggett] in Morris County and Hudson County.

The petition noted that "[t]here is at present a PCR Hearing/matter scheduled in Hudson County to address these issues which are related by reason of [Daggett]'s representation." The petition was not pursued, however, because the designated counsel who filed it withdrew after he was told that Szemple had retained private counsel.

On October 17, 2007, Szemple filed the present PCR petition with the assistance of designated counsel. Counsel submitted a certification with the October 17, 2007 petition asserting that there had been neglect with respect to the July 23, 2003 petition:

2. I had a conversation with the prior PCR attorney . . . at some point during my representation of [Szemple]. We discussed what his actions were during his representation.

3. [Szemple's prior attorney] informed me that he had worked on the case for a short period of time, when he was informed that a privately retained attorney . . . who was representing [Szemple] on his PCR petitions in two other counties was going to take over representation on this matter.

4. [The attorney] stated that he closed out his file and returned it to the Public Defender's Office and had no[] further contact with anyone involved with the matter since then.

5. I have also spoken with [the retained attorney] at times during my representation and he informed me that he only represented [Szemple] on his PCR petitions in Hudson and Morris Counties, and had no involvement with this matter.

6. The Public Defender's Office was unable to locate the original file received from [the prior attorney].

On October 9, 2009, the PCR judge heard oral argument on Szemple's petition. The State argued that the petition was procedurally barred and time barred. The judge reserved decision. He issued a written opinion and order dismissing the petition on December 7, 2009.

The judge held that the petition was "both time barred and procedurally barred," and that Szemple was not entitled to an evidentiary hearing. The judge concluded that

[Szemple's] [IAC] claim has been heard and denied by several courts prior to this petition . . . [including] in his appeal of his Hudson County conviction, his third petition for [PCR] in Hudson County, his direct appeal of his Morris County conviction, his petition for [PCR] in Morris County, direct appeal of his Warren County conviction, and his first petition for [PCR] in Warren County. Each time, [Szemple] asserted "extraordinary ethical breaches and conflicts of interest" at trial. Each time, the argument was found to be without merit.

Although noting that Rule 3:22-5 allowed for relaxation in "extreme and egregious" circumstances, the judge concluded that this case "does not rise to such a level."

The judge also concluded that Szemple's PCR petition was time barred because his judgment of conviction was dated April 17, 1998, while his October 17, 2007 PCR petition was filed well beyond the five year limit set forth by Rule 3:22-12(a). He determined that Szemple failed to show either excusable neglect or other exceptional circumstances justifying relaxation of the Rule. Referring to the PCR petition from March 28, 2003, the judge noted that "despite [Szemple's] argument of a 'bureaucratic mix-up,'" there was no excuse for failing to file the present petition until four years later.

Finally, the judge determined that Szemple was not entitled to an evidentiary hearing, because:

[Szemple] does not show that he was prejudiced by the performance of his [PCR] counsel, nor the counsel of [Daggett], as [Daggett] did not represent [Szemple] at that point, and was excused . . . before the guilty plea was entered. Furthermore, the evidence [that Szemple] claims should not have been admitted, the so-called "Boyle Letter," was never at issue in Warren County as a guilty plea was entered. [Szemple] has not shown that but for his counsel's actions, for both the appellate and [PCR] actions, the result would have been any different. . . . [Szemple] is not entitled to an evidentiary hearing as he has failed to present a [p]rima [f]acie case of [IAC].

This appeal followed.

Szemple makes the following arguments on appeal:

POINT I - DEFENDANT'S PCR PETITION IS NOT PROCEDURALLY BARRED PURSUANT TO RULE 3:22-5.

POINT II - DEFENDANT'S PCR PETITION IS NOT TIME BARRED PURSUANT TO RULE 3:22-12(a).

POINT III - THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CLAIM OF [IAC] WAS ESTABLISHED AS TO COUNSEL'S COERCING DEFENDANT TO PLEAD GUILTY.

After a careful review of the record and the applicable law, we find Szemple's arguments to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm for the reasons set forth in Judge John J. Coyle, Jr.'s opinion.

1 State v. Szemple, No. A-3977-94 (App. Div. May 5, 1997), certif. denied, 151 N.J. 76 (1997) (direct appeal); State v. Szemple, No. A-1668-06 (App. Div. Feb. 6, 2008), certif. denied, 195 N.J. 521 (2008) (PCR appeal); and Szemple v. Ricci, 2 011 U.S. Dist. LEXIS 10531 (D.N.J. Feb. 3, 2011) (denial of habeas corpus).

2 State v. Szemple, 263 N.J. Super. 98 (App. Div. 1993) (interlocutory appeal), aff'd, 135 N.J. 406 (1994); State v. Szemple, No. A-0696-94 (App. Div. Sept. 19, 1997), certif. denied, 152 N.J. 189 (1997) (direct appeal); State v. Szemple, No. A-1744-09 (App. Div. Apr. 27, 2011) (PCR appeal).