STATE OF NEW JERSEY v. DERICK MACK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3697-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DERICK MACK,

Defendant-Appellant.

_____________________________________________________

March 20, 2012

Submitted December 20, 2011 - Decided

Before Judges Messano and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 92-04-0819.

Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief).

Warren W. Faulk, Warren County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Derrick Mack appeals from the denial of his petition for post-conviction relief (PCR) following an evidentiary hearing.1 He raises the following points for our consideration:

POINT I - THE LOWER COURT ORDER MUST BE REVERSED SINCE THE FIVE-YEAR TIME BAR OF R. 3:22-12 SHOULD NOT BE APPLIED TO BAR DEFENDANT'S CLAIMS

A. THE TIME BAR SHOULD BE RELAXED ON THE GROUNDS OF EXCUSABLE NEGLECT

B. THE TIME BAR SHOULD BE RELAXED IN THE INTEREST OF JUSTICE

POINT II - THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

POINT III - THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

POINT IV - THE LOWER COURT ORDER MUST BE REVERSED SINCE CUMULATIVE ERRORS DEPRIVED DEFENDANT OF DUE PROCESS AND RENDERED THE TRIAL UNFAIR

POINT V - THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5

POINT IV - THE LOWER COURT RULING THAT DEFENDANT DID NOT PROVE EXCUSABLE NEGLECT SHOULD BE REVERSED AND THIS MATTER SHOULD BE REMANDED FOR AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS IN SUPPORT OF THE PCR PETITION

Defendant filed a pro se supplemental brief. We discern his essential argument to be that counsel at all levels provided ineffective assistance because his PCR petition "was never time-barred."

We have considered these contentions in light of the record and applicable legal standards. We affirm.

I

In 1994, following a jury trial, defendant was convicted of three counts of first-degree murder, N.J.S.A. 2C:11-3(a); three counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and one count of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). The jury decided not to impose the death penalty, and, on March 27, 1995, defendant was sentenced to three consecutive life terms with thirty-year parole disqualifiers for the murder convictions; three concurrent twenty-year extended terms with ten-year parole disqualifiers for the possession of a weapon for an unlawful purpose convictions; and a concurrent five-year term for the unlawful possession of a weapon conviction.

We affirmed defendant's convictions on appeal but remanded the matter for re-sentencing because the trial court improperly imposed multiple extended-term sentences. State v. Mack, No. A-6842-94 (App. Div. Aug. 2, 1999) (slip op. at 19-20). On October 7, 1999, the trial court re-sentenced defendant consistent with our order. The Supreme Court denied defendant's petition for certification on January 28, 2000. State v. Mack, 163 N.J. 13 (2000).

On May 2, 2001, defendant filed a petition for post-conviction relief, along with a motion to deem the filing nunc pro tunc to July 19, 2000. The State argued the petition was untimely, and defendant failed to demonstrate excusable neglect. The PCR judge granted defendant's motion, deemed the petition to have been filed on July 19, 2000, but nonetheless determined the petition was time-barred. Defendant appealed and the State cross-appealed.

We reversed in part, and remanded in part. State v. Mack, No. A-0557-01 (App. Div. May 21, 2003) (slip op. at 9). We concluded the judge erred in deeming the petition to have been filed on July 19, 2000, instead holding that "[t]he filing date of defendant's PCR [wa]s May 2, 2001." Ibid. However, we also held that defendant had "submitted sufficient factual information to require an evidentiary hearing on the issue of excusable neglect." Id. (slip op. at 7). We added:

A fuller factual record must be developed to . . . evaluate the cause of the delay and its relationship to any prejudice to the State and the importance of defendant's claim. . . . We emphasize that we have made no determination of whether defendant is entitled to a time-bar relief. The scope of the hearing we order is limited to that issue.

[Ibid.]

Judge Anthony M. Pugliese conducted the evidentiary hearing pursuant to our remand order on June 5 and August 21, 2009.

Jeffrey Resnick, Esq., testified that he was retained sometime in January 2001 to obtain files held by another attorney, Edward Crisonino, who had represented defendant on the direct appeal. On January 31, Resnick contacted Crisonino by letter. In a letter dated February 2, Crisonino replied that he had spoken with defendant two weeks earlier, and defendant indicated he did not want Resnick's firm to represent him. Confused, Resnick forwarded Crisonino's letter to defendant and asked for further instruction.

In a February 11 letter to Resnick, defendant stated he would contact Crisonino and ask him to release the files to Resnick. Resnick sent Crisonino a letter on February 15 asking to pick up defendant's files. Crisonino responded that defendant would need to pay copying costs of $7,367.52 in order to obtain the files. After paying the copying costs, defendant obtained the files, but certain transcripts were missing. The transcripts were not obtained until approximately May 14.

Defendant testified that after being sentenced, he was remanded to the State prison system and held in protective custody until 1996, when he requested to be transferred out-of-state. He was transferred to the Pennsylvania Corrections system, where he remains today. Defendant testified that Crisonino represented him on appeal and filed his petition for certification, but that some time between August 2, 1999 and January 2000, he and Crisonino became involved in a fee dispute.

The balance of defendant's testimony centered on his attempts to obtain New Jersey legal materials and forms while incarcerated. He made requests from the prison authorities in New Jersey and Pennsylvania, as well at the Prisoner Self Help Legal Clinic. Defendant claimed he had problems communicating with Crisonino, however, he also testified that Crisonino was working to return defendant to New Jersey in December 1999.

Defendant continued to file requests for legal materials and forms throughout the early months of 2000. He testified that he was concerned because he knew there was a deadline for filing his PCR petition, but he did not know how much time he had. On July 12, 2000, defendant received the necessary forms from a friend who was an inmate at Rahway State Prison. He completed them and sent them by certified mail to the Camden County Prosecutor, the Camden County Public Defender, and the Camden County Assignment Judge. On August 1, the Camden County Public Defender's Office acknowledged receipt of a copy of defendant's PCR petition and informed him an attorney would be assigned. Defendant believed his PCR petition had been filed as of August 1, 2000. His current attorney informed him in April 2001 that there was no record that the petition had been filed.

Crisonino testified he was retained around February 29, 1996 by defendant's friend to represent defendant on appeal. When defendant was transferred to a prison in Pennsylvania, Crisonino communicated in-person, by telephone and through letters with him, and the two discussed issues to be raised on appeal. On December 26, 1996, Crisonino filed the first brief on defendant's appeal.

On October 27, 1999, defendant, through a friend, filed a demand for fee arbitration. In January 2000, Crisonino was served with a copy. Crisonino knew of defendant's dissatisfaction with his representation, and he advised defendant to obtain new counsel. Defendant responded by letter indicating he wanted Crisonino to continue to represent him. However, on January 14, 2000, Crisonino wrote defendant that he would no longer represent him and requested the name of his new attorney.

On March 2, 2000, Crisonino received a letter from Leon Rose, Esq., requesting defendant's file. Crisonino testified that he intended to copy the file and provide it to Rose, but he received a subpoena requesting the file be produced at the fee arbitration. Crisonino sent Rose a fax acknowledging that he could not turn over the file because of the subpoena, but that Rose was free to come to Crisonino's office and review it. Crisonino testified that Jeffrey Zucker, Esq., was initially defendant's attorney at trial. Over his objection, Zucker was disqualified on the State's motion. Saul Steinberg, Esq., replaced Zucker. Crisonino testified that he never considered raising this issue on appeal because defendant indicated he was happy with Steinberg's representation at trial and the trial judge "probably had no choice but to disqualify Mr. Zucker at the time the motion was made."

Judge Pugliese concluded defendant failed to demonstrate excusable neglect. He explained:

A large part of the defendant's case centers upon Mr. Mack's efforts to obtain New Jersey case law, PCR forms, Rules and other legal materials. Also much is made of Mr. Mack's efforts to obtain his file. However, at all points in time after Supreme Court certification had been denied, Mr. Mack could have filed a petition on his own without his file or the legal documents he requested.

Mr. Crisonino represented him from 1996 through January 14, 2000. Mr. Mack testified to all the efforts he made from April 1999 through July 2000 to get the materials that he stated he needed. For much of this time he was being represented by Mr. Crisonino. Mr. Crisonino testified that had Mr. Mack asked Mr. Crisonino for the appropriate forms he would have provided them to him. It is obvious from the testimony that Mr. Mack had the ability to engage Leon Rose, Esq. to represent him in some capacity. There is no reason why he could not have requested PCR forms from Mr. Rose just as he requested that Mr. Rose attempt to obtain his files.

Further, Mr. Mack conceded that he knew as far back as of April 1999, that he was subject to a deadline. In his testimony he confirmed that he had multiple communications with Mr. Crisonino and Mr. Rose prior to the PCR filing deadline, yet apparently at no point did he ask either of them what the exact PCR deadline was nor did he ask them for the appropriate forms.

Judge Pugliese also concluded that the State would be prejudiced since the crimes occurred in 1990, ten years before the date by which defendant was required to file his PCR petition, and eighteen-years prior to the evidentiary hearing. Further, Judge Pugliese examined the importance of defendant's claim for relief:

As to defendant s claimed issue of third party guilt, Mr. Mack testified that it was raised by Mr. Crisonino on appeal, just not in the way Mr. Mack wanted it to be done. The defendant gave no further testimony on that point and defense counsel did not make a case in argument as to any valid points that were missed at trial or on appeal with regard to [this] issue . . . .
The Appellate Division did reject the argument as it was raised on appeal and I see no important claim on this issue that the defendant can raise by way of a PCR claim.

As to the choice of counsel issue, it is obvious to this court that Judge Natal was clearly within his discretion to disqualify Mr. Zucker from representing Mr. Mack at trial. Before trial, an issue of witness intimidation arose which put Mr. Zucker in the position of potentially having to testify as to whether or not he had any involvement in the activity. This created a conflict of interest that the defendant could not waive. . . . Accordingly, this [c]ourt does not see the choice of counsel issue to have any merit. It is not an important claim in the context of evaluating the excusable neglect issue.

Judge Pugliese concluded defendant failed to demonstrate excusable neglect for the late filing of his PCR petition. This appeal followed.

II

As we concluded in our prior decision, defendant's petition was filed on May 2, 2001. At that time, Rule 3:22-12(a) provided:

A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.2

The time limit contained in Rule 3:22-12(a) recognizes "the difficulties associated with a fair and accurate reassessment of the critical events" years after their occurrence, and "the need for achieving finality of judgments and to allay the uncertainty associated with an unlimited possibility of relitigation." State v. Mitchell, 126 N.J. 565, 575-6 (1992). "The Rule therefore strongly encourages those believing they have grounds for post-conviction relief to bring their claims swiftly, and discourages them from sitting on their rights until it is too late for a court to render justice." Id. at 576. Application of the time limit is "not rigid and monolithic[,]" and, "as with all of our Rules, where the interests of justice so require, the Rule will be relaxed." Ibid. (citing Rule 1:1-2).

"When determining whether to relax the time bar . . . a 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.'" State v. McQuaid, 147 N.J. 464, 485 (1997) (quoting Mitchell, supra, 126 N.J. at 580). "[A] court should only relax the bar of Rule 3:22-12 under exceptional circumstances." State v. Afanador, 151 N.J. 41, 52 (1997). A "[d]efendant's assertion that he lacks sophistication in the law does not satisfy the exceptional circumstances. . . ." State v. Murray, 162 N.J. 240, 246 (2000).

In conducting our review, we typically defer "to the [PCR] court's factual findings . . . 'when supported by adequate, substantial and credible evidence.'" State v. Harris, 181 N.J. 391, 415 (2004) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)), cert. denied, 532 U.S. 1057, 121 S. Ct. 2204, 149 L. Ed. 2d 1034 (2005). We need not defer to the legal conclusions of the PCR court. Ibid. Regarding mixed questions of law and fact, as in this case, we afford deference to the PCR court's supported factual findings, but review de novo the court's application of legal principles to the factual findings. Id. at 416 (citing State v. Marshall, 148 N.J. 89, 185, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997)).

Applying these standards to the case at hand, we conclude that Judge Pugliese's factual conclusions were supported by adequate, substantial and credible evidence. Furthermore, the judge correctly applied those factual determinations to the legal standards outlined above regarding defendant's claim of excusable neglect. We affirm substantially for the reasons expressed by Judge Pugliese in his written opinion.

As a result, we need not consider the balance of defendant's arguments which go to the merits of his ineffective assistance of counsel claims. For the sake of completeness, however, we note that based upon our review of the record, those arguments lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

Lastly, in his pro se brief, defendant claims his filing was not time-barred in the first instance because our initial opinion, filed on August 2, 1999, required his re-sentencing, and, therefore, the five-year clock was "re-set." There is no legal support for this contention. "The five-year period established by the Rule commences when the judgment of conviction is entered and is generally neither stayed nor tolled by an appellate or other proceeding." Murray, supra, 162 N.J. at 249. The argument lacks sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

1 Various spellings of defendant's name appear in the record. Except as otherwise noted in our previously-filed opinions, we adopt the spelling defendant used in filing his pro se supplemental brief in this appeal.

2 The Rule now provides in pertinent part:

[N]o petition shall be filed pursuant to this rule 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 beyond said time 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 of the time bar would result in a fundamental injustice.

[R. 3:22-12(a)(1).]