STATE OF NEW JERSEY v. CRAIG REID

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CRAIG REID,

Defendant-Appellant.

_______________________________________________

November 27, 2013

Submitted September 10, 2013 Decided

Before Judges Sabatino and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 95-05-1815 and 95-05-1816.

Cariddi & Garcia, attorneys for appellant (Carol J. Garcia, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jo-Ann Teng, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Craig Reid appeals from the October 30, 2011 Law Division order denying his second petition for post-conviction relief (PCR). For the reasons that follow, we affirm.

The record reveals that a jury convicted defendant in 1996 of multiple counts of armed robbery, kidnapping, weapons offenses, aggravated assault, burglary, terroristic threats, and, in a separate trial, possession of a gun by a previously convicted person. The trial court imposed an aggregate sentence of a life term plus fifty years with a fifty-year period of parole ineligibility.

The indictments stemmed from an incident in 1995 in which defendant entered the premises of a store for the purpose of committing armed robbery. Five employees were present during the robbery, and defendant removed and confined one of those employees for the purpose of holding her as a shield in order to escape.

Defendant appealed the conviction and sentence, arguing that the trial court erred by failing to exclude evidence of his prior robbery convictions, by failing to dismiss the separate counts of robbery for each victim, by allowing evidence presented during the first trial to convict him of the separate weapons charge in the subsequent trial, and by imposing an excessive sentence. We rejected these arguments, among others, and affirmed defendant's convictions but remanded for correction of the judgment of conviction to accurately reflect the sentence imposed. State v. Reid, Nos. A-2697-96, A-2707-96 (App. Div. Dec. 22, 1998), certif. denied, 160 N.J. 91 (1999).

Defendant filed his first PCR petition pro se on August 7, 2001. His appointed counsel filed an amended petition for PCR on March 26, 2003. Judge Michael A. Petrolle, who had presided at the trial, held an evidentiary hearing. Defendant's petition alleged, inter alia, ineffective assistance of trial counsel in failing to advise defendant of the possibility of an extended term sentence. Additionally, defendant maintained that counsel for his trial and subsequent appeal provided ineffective assistance by failing to raise constitutional errors in his sentencing. Defendant further challenged the admission of evidence of prior crimes, in particular, references to his prior robberies. Judge Petrolle denied defendant's PCR application on February 2, 2005. We affirmed Judge Petrolle's order. State v. Reid, No. A-4494-04 (App. Div. Jan. 24, 2007), certif. denied, 192 N.J. 71 (2007).

On June 21, 2010, defendant filed a second pro se petition for PCR, and on May 17, 2011, his counsel filed a supplemental brief in support of his petition. Defendant's second PCR petition contended, among other things, that his trial counsel was ineffective by allowing an improper jury charge on diminished capacity, by failing to succeed on the motion to suppress his confession, and by not requesting lesser included offenses charges. He also argued that there were various instances of prosecutorial misconduct. Additionally, he requested that he be resentenced in accord with State v. Natale, 184 N.J. 459 (2005).

On October 19, 2011, Judge Petrolle heard oral arguments regarding defendant's second PCR petition. In an October 30, 2011 order, Judge Petrolle denied defendant's petition without an evidentiary hearing. Judge Petrolle held that the petition was time-barred pursuant to Rule 3:22-12(a), and that defendant failed to show that the late filing was due to excusable neglect, or that the interest of justice warranted consideration of the petition beyond the time limitation. Further, the judge found that the claims asserted in the second PCR either were, or reasonably could have been, raised on direct appeal, raised in the first PCR, or raised in the appeal of its denial, and were therefore procedurally barred pursuant to Rule 3:22-4 and Rule 3:22-5.

Despite finding the petition procedurally barred, Judge Petrolle substantively addressed several of defendant's contentions. Judge Petrolle determined that defendant's claim of illegal sentence under Natale, was resolved in the first PCR appeal, and that Natale did not provide "pipeline retroactivity" as defendant's direct appeal was denied on December 22, 1998. See Natale, supra, 184 N.J. at 494.

The judge also found that the jury instruction regarding the requisite state of mind for a finding of guilt was previously raised by defendant in his direct appeal. Furthermore, Judge Petrolle determined that defendant's claim that the jury instructions concerning diminished capacity imposed the burden of proof to the defense was unfounded. The judge noted that the instructions repeatedly informed the jury that the State had the burden of proving state of mind, and the instructions did not impose any burden of proof upon the defense. Further, the judge determined that the order in which the evidence was presented at trial did not create an impression that defense maintained the burden of proof.

Next, Judge Petrolle found that defendant's claim that the trial court failed to instruct the jury to consider his confession in light of his defense of diminished capacity was groundless. Further, the judge observed that defendant failed to submit any expert report or certification with his second PCR petition supporting his claim. The judge determined that an evidentiary hearing regarding defendant's claim of ineffective assistance of counsel was not required because defendant failed to establish a prima facie case.

This appeal followed.

On appeal, defendant's counsel raises the following contentions:

POINT I: THE RECORD CLEARLY DEMONSTRATES FAILURE OF THE STATE TO PROVE CULPABILITY PURSUANT TO N.J.S.A. 2C:2-2 AND THEREFORE THE FINDING OF GUILT IS CONSTITUTIONALLY INFIRM AND CONSTITUTES AN UNJUST RESULT WHERE DIMINISHED CAPACITY WAS DEFENDANT'S SOLE DEFENSE. R. 2:10-2.

A. Although the Second PCR Court was Informed that [when it was Sitting as the] Trial Court [it] did not Recharge [the jury] as Required Under State v. Thomas, 76 N.J. 344 (1978), it Ignored its Obligation to Correct the Manifest Error.

B. Motion to Suppress Alleged Confession was Conducted in Constitutionally Defective Manner. If the Statement was Correctly Admitted then it Should Have Been Subject to the Parameters of the Defense of Diminished Capacity.

POINT II: TRIAL COURT HAD BECOME AWARE OF THE INTRODUCTION OF HIGHLY PREJUDICIAL AND IRRELEVANT TESTIMONY BY THE STATE'S EXPERT WITNESS AT THE FIRST POST CONVICTION RELIEF HEARING BUT CONSCIOUSLY IGNORED THE UNJUST RESULT. CONSIDERATION OF ISSUE AT SECOND PCR CAN NOT BE HELD TO BE BARRED AS UNTIMELY.

A. Testimony of State's Expert which Denied Defendant-Appellant's Right to Impartial Jury Cannot be Categorized as an Evidentiary Ruling and Therefore Discretionary. In the Alternative, it was an Abuse of Discretion and Constituted Manifest Error.

POINT III: THE SECOND PCR COURT ERRED BY FINDING THAT THE ISSUE OF JURY CHARGES WAS BARRED BY R. 3:22-5. POST-CONVICTION RELIEF WILL BE PRECLUDED UNDER THIS RULE ONLY IF THE ISSUE IS IDENTICAL OR SUBSTANTIALLY EQUIVALENT TO THE ISSUE ALREADY ADJUDICATED ON THE MERITS. STATE v. AFANADOR, 151 N.J. 41, 51 (1997); STATE v. MCQUAID, 147 N.J. 464, 484 (1997).

A. Error Contained in Summation Constituted Prosecutorial Misconduct and Must be Considered in Light of Defective Jury Charges Received.

POINT IV: DEFENDANT-APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BOTH AT THE TRIAL, APPELLATE AND AT THE PCR LEVEL.

POINT V: THIS COURT ON APPEAL IS REQUESTED TO INVOKE ORIGINAL JURISDICTION FOR A COMPLETE DETERMINATION. R. 2:10-5.

A. The State may not Rely on Procedural Bars to Compensate for its Inability to Demonstrate that Defendant-Appellant has not Pled a Prima Facie Showing that he was Denied Fundamental Fairness. The State has not been Prejudiced in its Ability to Proceed with a Correct Determination of Mens Rea.

B. Existing Record Proves Cumulative Error. The Conviction Must be Reversed.

Defendant's pro se supplemental brief raises the following additional contentions:

POINT I: BECAUSE RESPONDENTS ALLOWED TESTIMONY FROM ITS EXPERT WITNESS REGARDING A PLEA OFFER TO STAND UNCORRECTED, [IT] SHOULD BE VIEWED AS A CONCESSION BY THE RESPONDENTS THAT A PLEA-DEAL WAS OFFERED.

POINT II: BECAUSE DEFENDANT IS RAISING CLAIMS WHICH [SHOW] THE CURRENT MODEL JURY EVIDENCE OF MENTAL DISEASE OR DEFECT CHARGE IS DEFECTIVE AND/OR SHOWS THE TRIAL COURT COMMITTED ERROR IN ITS [CHARGES] TO THE JURY MEANS ANY PROCEDURAL BAR IN QUESTION SHOULD BE LIFTED TO PERMIT REVIEW OF HIS CLAIMS.

POINT III: THE JURY RECEIVED FLAWED INSTRUCTIONS FROM A DEFECTIVE MODEL JURY EVIDENCE OF MENTAL DISEASE OR DEFECT CHARGE, WHEN THE COURT FAILED TO INSTRUCT THE JURY THAT EVEN IF THEY FOUND THE STATE HAD PROVEN BEYOND A REASONABLE DOUBT THAT DEFENDANT ACTED PURPOSELY OR KNOWINGLY, BUT THE STATE HAD FAILED TO DISPROVE DEFENDANT SUFFERED FROM A MENTAL [DISEASE] OR DEFECT DEFENSE WHEN HE COMMITTED THE CRIMES, THEN THEY ARE TO ACQUIT DEFENDANT OF THOSE CRIMES.

POINT IV: THE JURY RECEIVED FLAWED INSTRUCTIONS FROM A DEFECTIVE MODEL JURY EVIDENCE OF MENTAL DISEASE OR DEFECT CHARGE. SAID INSTRUCTIONS WERE FLAWED BECAUSE THE INSTRUCTIONS FAILED TO INSTRUCT THE JURY THAT DEFENDANT'S DEFENSE OF MENTAL DISEASE OR DEFECT WOULD ALSO APPLY TO THE LESSER INCLUDED OFFENSES [OF] AGGRAVATED ASSAULT.

POINT V: THE TRIAL COURT COMMITTED ERROR WHEN THE COURT FAILED TO SPECIFICALLY INFORM THE JURY OF THE MENTAL DISEASE OR DEFECT DEFENDANT [] SUFFERED FROM.

We begin with a review of the relevant well-settled principles governing our analysis. PCR constitutes "New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992); see also State v. Nash, 212 N.J. 518, 540 (2013) (noting that PCR represents a defendant's "last chance" to challenge the fairness and reliability of a criminal verdict). To protect against courts addressing endless issues in a piecemeal fashion, certain procedural rules govern PCR petition filings. Under the current version of the rule, which was in effect when defendant filed his present petition in June 2010, Rule 3:22-12(a)(1) imposes a five-year limitation on filing a petition after the entry of the judgment sought to be challenged. A second or subsequent PCR petition may only be filed within one year of the recognition of a new constitutional right, discovery of a new factual predicate, or denial of the last PCR to address ineffective assistance of PCR counsel. R. 3:22-12(a)(2).

Although the time limitations are not absolute and may be waived to prevent a fundamental injustice, the rules must be viewed in light of their dual key purposes: to ensure that the passage of time does not prejudice the State's retrial of a defendant and to respect the need for achieving finality. State v. DiFrisco, 187 N.J. 156, 166-67 (2006). Moreover, a PCR petition is not a substitute for an appeal of a conviction, Rule 3:22-3, and any available ground for relief not asserted in a prior proceeding is barred if it could have been raised earlier, Rule 3:22-4, or was asserted earlier, Rule 3:22-5.

We have carefully considered defendant's arguments and the applicable law, and we conclude that the arguments advanced by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Petrolle in his cogent and thorough oral opinion on October 19, 2011.

We are satisfied that defendant's second PCR petition, filed thirteen years after the judgment of conviction without any showing of excusable neglect or manifest injustice, is clearly time-barred. R. 3:22-12(a). Defendant has articulated no basis to relax the clear restrictions concerning second PCR petitions imposed by this rule. We also agree that the present claims are barred by Rule 3:22-4 and Rule 3:22-5 as they could have been raised, or were raised, either on direct appeal or in defendant's previous PCR petition and subsequent appeal.

Moreover, in order to obtain relief on an ineffective assistance of counsel claim, a defendant must show both that his counsel's performance was deficient and that counsel's performance prejudiced his defense. State v. Fritz, 105 N.J. 42, 52 (1987) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). We are in accord with Judge Petrolle that defendant offered nothing more than bald assertions of ineffective assistance, which are simply insufficient. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).