STATE OF NEW JERSEY v. GEORGE C. RILEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5283-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GEORGE C. RILEY,

Defendant-Appellant.

-

ArguedJanuary 29, 2013 Decided May 3, 2013

Before Judges Harris and Hoffman.

On appeal from the State of New Jersey, Law Division, Monmouth County, Indictment No. 86-03-00365.

George C. Riley, appellant, argued the cause pro se.

Caitlin J. Sidley, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Ms. Sidley, of counsel and on the brief).

PER CURIAM

Defendant George C. Riley appeals from an order of the Law Division denying his seventh petition for post-conviction relief (PCR). We affirm.

Prior to the instant application, defendant filed six unsuccessful PCR petitions since his 1986 conviction. In affirming the Law Division's order denying defendant's fifth PCR petition, we provided a summary of the proceedings to that point:

By way of background, in 1986, defendant was indicted, tried and convicted of attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(a)(1) (count one); attempted endangerment of the welfare of a child, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4(a) (count two); and attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(b) (count three). The court merged the attempted sexual assault and attempted endangering into the attempted aggravated sexual assault and sentenced defendant to an extended term, imposing a sentence of 20 years in prison subject to a parole ineligibility period of 10 years.

On direct appeal, we reversed defendant's conviction of attempted aggravated sexual assault on the basis of insufficiency of evidence. State v. Riley, No. A-1009-86T4 (App. Div. Dec. 11, 1987) (slip op. at 8-9). We affirmed, however, defendant's conviction of attempted sexual assault, into which lesser included offenses of which he was also convicted had been merged. Ibid. We also vacated the sentence, a twenty-year term subject to a ten-year parole ineligibility period, which had been imposed for the attempted aggravated sexual assault, and remanded for resentencing. Ibid. We pointed out, however, that since both attempted aggravated sexual assault and attempted sexual assault are second-degree crimes, the original sentence could, on reconsideration, nevertheless, be imposed. Ibid. Defendant's petition for certification to the Supreme Court was denied. State v. Riley, 110 N.J. 308 (1988).

. . . .

Following our remand, defendant was resentenced on the attempted sexual assault to the term originally imposed on the attempted aggravated sexual assault. On appeal, we concluded that the Law Division had mistakenly exercised its sentencing discretion by considering inapplicable aggravating factors, and therefore again remanded for resentencing. State v. Riley, No. A-0171-88T4 (App. Div. Jan. 16, 1991). Again the Law Division imposed the same sentence, this time reciting aggravating factors consistent with our opinion and considering the mitigating factors urged by defendant. Again defendant appealed. We considered this third appeal on our Excessive Sentence Oral Argument calendar pursuant to R. 2:9-11. We affirmed. State v. Riley, No. A-0455-91T4 (App. Div. Mar. 23, 1992).

Apart from these direct appeals, defendant has pursued numerous collateral attacks on his 1986 conviction in both federal and state courts. As to the former, defendant filed a habeas corpus petition in 1988 that was denied, as were all subsequent appeals and applications for reconsideration thereof. In 1994, a second petition for a writ of habeas corpus was dismissed by the federal district court, citing "abuse of writ" and lack of jurisdiction. Thereafter, motions for reconsideration and appeals were consistently denied, including the denial of three petitions for writ of certiorari by the United States Supreme Court in 1994, 2001 and 2006. Riley v. New Jersey, 549 U.S. 1003, 127 S. Ct. 514, 166 L. Ed. 2d 383 (2006); Riley v. New Jersey, 534 U.S. 925, 122 S. Ct. 281, 151 L. Ed. 2d 206 (2001); Riley v. New Jersey, 513 U.S. 906, 115 S. Ct. 271, 130 L. Ed. 2d 189 (1994).

[State v. Riley, No. A-6396-06 (App. Div. June 12, 2008) (slip op. at 5-9).]

Relevant to the instant claims, in defendant's fourth PCR petition, filed April 15, 2002, defendant alleged, among other things, that the substantive elements of the offense were not sufficiently alleged in the indictment. The Law Division denied defendant's fourth PCR petition on April 2, 2004.

In defendant's fifth PCR petition, filed February 9, 2007, defendant alleged that his sentence is illegal and the indictment should be dismissed, pursuant to article I, paragraphs 1, 8, and 10 of the New Jersey Constitution, and United States v. Resendiz-Ponce, 549 U.S. 102, 127 S. Ct. 782, 166 L. Ed. 2d 591 (2007). In essence, defendant contended that count three of the indictment should be dismissed as fatally defective because the State failed to charge the four essential culpable mental state elements of the crime.

On July 13, 2007, the Law Division denied defendant's fifth PCR petition, citing a variety of procedural grounds. Specifically, the PCR judge reasoned:

The defendant asserts that his petition is not time-barred because his sentence is illegal. This court disagrees.

. . . .

Here, the defendant's sentence is legal. The defendant was convicted of second-degree attempted sexual assault. A crime of the second-degree carries term of incarceration between ten and twenty years. On September 19, 1986, the late Judge Arnone granted the State's motion for an extended term and sentenced the defendant to twenty years imprisonment with a ten year period of parole ineligibility. Although the defendant's sentence is at the high end of the range, such a sentence is authorized by the Code and does not exceed any statutory maximums. Consequently, the defendant's sentence is legal as defined in this State's jurisprudence.

. . . .

[T]he defendant [next] claims that because the State failed to allege the culpable mental state as an element of the offense under Count Three of the Indictment, his constitutional right to indictment by Grand Jury renders his conviction and sentence void.

The defendant's argument is time-barred. . . . [u]nder R. 3:22-4 . . . .

The defendant has filed numerous petitions for post-conviction relief since he was first convicted in 1986. . . .

. . . .

[D]efendant's lengthy procedural history demonstrates that his claims are time-barred. The defendant has been attacking the validity of his conviction under Count Three of the Indictment since he was first convicted in 1986. The defendant had numerous occasions in his four previous post-conviction relief petitions to raise the specific issues now before the court, and his failure to do so bar[s] their consideration now, twenty years after his judgment of conviction was filed.

. . . .

The defendant's [next] argument asserts that the "[f]ailure to charge the key element of substantial step and the acts constituting the substantial step, which is the sole bases(sic) for the defendant's conviction and sentence," renders his conviction and sentence void. The defendant['s] claim is time-barred under R. 3:22-5.

[Riley, supra, No. A-6396-06 (slip op. at 12-13).]

Defendant's constitutional challenge to the indictment was rejected in Riley v. Schiedemental, C.A. No. 88-3965, 1990 U.S. Dist. LEXIS 4959 (D.N.J. 1990).

On this appeal, defendant, pro se, argues:

POINT ONE:

THE PCR JUDGE ERRED IN DENYING THE PETITION FOR POST-CONVICTION RELIEF AS ENFORCEMENT OF PROCEDURAL BARS WOULD RESULT IN FUNDAMENTAL INJUSTICE, BY DENYING THE DEFENDANT HIS PROCEDURAL RIGHT NOT TO BE HELD TO ANSWER UNLESS ON INDICTMENT OF A GRAND JURY, THE COURT NEVER ACQUIRED JURISDICTION UNDER INDICTMENT 365-86.

A) No Procedural Bar Applies To The Fatally Defective Count Three Of Indictment, A Substantive Procedural Defect.

B) No Court Has Previously Decided That The Grand Jury Charged The Essential Elements And Acts On Which The Conviction Was Upheld, Because The Grand Jury Did Not So Charge.

POINT TWO:

THE PCR JUDGE ERRED IN DENYING THE PETITION FOR POST-CONVICTION RELIEF AS THE DEFENDANT HAS BEEN DENIED DUE PROCESS BECAUSE HE WAS NEVER IN FACT INDICTED FOR THE CRIME ON WHICH HE WAS CONVICTED, THAT ENFORCEMENT OF THE BAR WOULD RESULT IN FUNDAMENTAL INJUSTICE AND BE CONTRARY TO BOTH CONSTITUTIONS.

A) Defendant's Due Process Rights Were Seriously Infringed During The Conviction Proceedings.

B) Defendant Is Actually Innocent Of The Crime, Falling Under Exception of R. 3:22-4(c) & R. 1:1-2.

In his reply brief, defendant further argues:

POINT I:

The State's Argument That Defendant's Denial Of Indictment by A Grand Jury And His Actual Innocence By a Grand Jury And His Actual Innocence Of The Crime, Based Upon An Act The Law Plainly Allows, Claims Are Procedurally Barred By Rule 3:22-4, 3:22- 5 Or 3:22-12 Is Patently Incorrect:

A) Denial Of Indictment Cannot Be Procedurally Barred.

B) Respondent Has Failed To Address Defendant's Claim Of Actual Innocence Of Crime Of Attempted Sexual Contact.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel and defendant pro se, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Thomas F. Scully in his order of May 22, 2012.

To the extent any issue raised by defendant in the instant PCR application had not been previously raised by him, it is nevertheless precluded from review now because it could have been raised earlier. R. 3:22-4; State v. McQuaid, 147 N.J. 464, 483 (1997). Although there are exceptions to this particular procedural bar, we conclude none apply here. The judicial system has provided defendant with an abundance of opportunities to advance his claims. They are now barred. R. 3:22-4.

Affirmed.