STATE OF NEW JERSEY v. JAIRE L. HIGHSMITH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5385-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAIRE L. HIGHSMITH,

Defendant-Appellant.

January 7, 2013

Submitted October 30 2012 - Decided

Before Judges Alvarez, Waugh and St. John.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-04-1284.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

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

PER CURIAM

Defendant Jaire L. Highsmith appeals a December 18, 2009 order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

Defendant was indicted by a Camden County Grand Jury for the first-degree murder of Stephen Goebel,N.J.S.A. 2C:11-3(a)(1) and (2) (count one); third-degree possession of a weapon (a folding knife) for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count three); and two counts of third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (counts four and five). Defendant eventually entered a guilty plea to an amended count one, charging him with first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a). He was sentenced on December 6, 2002, in accord with the agreement, to a thirty-year custodial term, subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). The court imposed appropriate fines and penalties, which when added to restitution totaled $14,495. The remaining four counts of the indictment were dismissed. On November 13, 2006, defendant was resentenced to the same term of imprisonment pursuant to our remand order in accord with State v. Natale, 184 N.J. 458 (2005).

Thereafter, defendant pursued an appeal heard on the excessive sentence oral argument calendar. See R. 2:9-11. On September 17, 2007, we affirmed the sentence.

Defendant subsequently filed a PCR petition pro se. He was assigned counsel, and a supplemental brief was filed on his behalf. Before the trial court, defendant contended that: (1) he was not advised that the NERA five-year period of parole supervision exposed him to a resentence beyond the term of the initial thirty-year plea bargained incarceration thereby entitling him to a materiality hearing pursuant to State v. Johnson, 182 N.J. 232 (2005); (2) he was entitled to withdraw his guilty plea; and (3) trial counsel was ineffective in failing to present a diminished capacity defense.

Defendant certified that he "had a good-faith belief that [his] serious drug and alcohol addiction at the time of the incident which gave rise to the indictment caused significant mental problems which could have formed the basis of a diminished capacity defense to the charges." He also claimed that the plea form which he signed did not include supplemental pages explaining NERA's provisions for parole supervision, specifically, the fact that if resentenced on a parole violation the additional term of years could exceed the agreed-upon thirty years. Defendant denied that this possibility was explained to him at the plea hearing, at the sentence, or by his trial attorney. He also argued that if he had been made "aware of these potential penal consequences of [the] plea" he would not have entered a guilty plea.

Following oral argument, the trial court denied defendant's PCR petition, first finding it time-barred. See R. 3:22-12. The petition was filed more than six years after his sentence, or one year beyond the five-year deadline found in the rule. The judge found that no manifest injustice resulted from the entry of the plea, as it "was a strategic decision made by this defendant in the face of the allegation of 72 stabbings and the throat slitting. It saved him from a life sentence."

The judge also concluded as a second basis for denial that given the state of the law at the time the plea was placed on the record, the trial court's explanation of the NERA consequences was legally sufficient. Neither Johnson, supra, 182 N.J. 232, nor State v. Freudenberger, 358 N.J. Super. 162 (App. Div. 2003), had been decided. Additionally, the court found that the record was devoid of any proofs that an intoxication defense was warranted other than defendant's bare allegation.

Finally, the judge observed that defendant had ample opportunity to raise these issues on direct appeal and failed to do so. He was thereby separately barred from pursuing the claims by Rule 3:22-3. This appeal followed.

Defendant raises the following points for our consideration:

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING THAT HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR PLEA PROCEEDING, IN WHICH HE IS ACCURATELY INFORMED OF THE SPECIAL PAROLE PROVISIONS OF THE NO EARLY RELEASE ACT (NERA), WAS VIOLATED

POINT II

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE CONSEQUENCES THAT THE VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHT TO BE FULLY INFORMED OF THE SPECIAL PAROLE PROVISIONS OF THE NO EARLY RELEASE ACT (NERA) HAD ON THE INTEGRITY OF THE CRIMINAL JUSTICE SYSTEM WARRANTED THE RELAXATION OF R. 3:22-12 UNDER THE "INJUSTICE" CLAUSE OF R. 1:1-2

POINT III

SINCE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING

POINT IV

THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION

POINT V

DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF

(A)

TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO PRESENT A DIMINISHED CAPACITY DEFENSE

(B)

APPELLATE COUNSEL WAS INEFFECTIVE

(C)

THE SENTENCE IMPOSED SHOULD BE REDUCED

These arguments lack sufficient merit to warrant more than brief comment. See R. 2:11-3(e)(2).

Defendant does not explain the reason for his silence for "more than five years after the date of entry . . . of the judgment of conviction that is being challenged." See R. 3:22-12. This omission means that even if we agreed that defendant's contentions might have otherwise warranted an evidentiary hearing, the trial judge's conclusion that the petition was time-barred is unassailable.

Only exceptional circumstances permit relief from the time-bar, and only after assessment of prejudice to the State, the length of the delay, the reason for the delay, and the importance of the defendant's claim. See State v. Afanador, 151 N.J. 41, 52 (1997). And the five-year period is neither stayed nor tolled by defendant's Natale proceedings and excessive sentence appeal. See State v. Dugan, 289 N.J. Super. 15, 19 (App. Div.), certif. denied, 145 N.J. 373 (1996); State v. Merola, 365 N.J. Super. 203, 217 (Law Div. 2002), aff d o.b., 365 N.J. Super. 82 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). Without any justification for this extensive delay, no finding can be made as to whether the failure to pursue legal recourse constitutes excusable neglect.

Moreover, defendant's argument that he did not understand the NERA term of parole ineligibility exposed him to a sentence greater than thirty years is barred by Rule 3:22-3. This issue could readily have been raised during defendant's appeals. The trial judge who took the plea and originally sentenced defendant did not explain this statutory possibility to him, and the written plea form did not explain it. Thus the record would have enabled him to challenge his plea bargain without the need for additional hearings. Arguments related to ineffective assistance of counsel are generally deferred until after the completion of direct appeals because they typically require proofs not in the record. See State v. Preciose, 129 N.J. 451, 460 (1992). In this case, such a delay was unnecessary.

Even if defendant's PCR petition was not procedurally barred, however, his points lack merit. In order for defendant to obtain relief on ineffective assistance grounds, he must show not only the particular manner in which trial counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). A defendant must establish a prima facie case, in other words, and demonstrate a reasonable likelihood of success on the merits in order to obtain an evidentiary hearing. State v. Marshall, 148 N.J. 89, 158 (1997); Preciose, supra, 129 N.J. at 462-63.

It is undisputed that Johnson requires a materiality hearing where no explanation of NERA's prescribed mandatory term of parole supervision is given to a defendant during the plea process. Supra, 182 N.J. at 241, 244. It is similarly undisputed that Freudenberger allows the withdrawal of a guilty plea where a defendant was not first informed of the parole supervision provision. Supra, 358 N.J. Super. at 170.

But Johnson and Freudenberger were decided after defendant's negotiated sentence was imposed; neither has been interpreted to apply retroactively. Additionally, this defendant was told about the five-year term of NERA parole supervision, in contrast with the defendants in those cases.

Moreover, the record reflects that defendant's plea was entered knowingly, intelligently, and voluntarily. See R. 3:9-2; Johnson, supra, 182 N.J. at 236. During the plea colloquy, for example, defendant stated he and his trial counsel reviewed the plea form, that he completely understood it, and had no questions regarding the agreement. It is apparent both from the plea form and the plea colloquy that defendant understood the nature of the charges and the consequences of a conviction after trial by jury, specifically, that he could be sentenced to life pursuant to NERA, carrying a mandatory term of parole ineligibility of sixty-three years, as opposed to the limited term resulting from the plea bargain.

Defendant's claim that trial counsel was ineffective by virtue of his failure to establish a diminished capacity defense is similarly lacking in merit. The only material in the record supporting a diminished capacity defense is defendant's own certification submitted in support of his PCR petition. That constitutes no more than a bare allegation, upon which PCR relief is not granted. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Therefore, defendant has failed to establish that counsel's performance was deficient, much less that the deficiency prejudiced his right to a fair trial.

Defendant also contends that appellate counsel was ineffective, but merely states in general terms that the meritorious points defendant is now raising by way of PCR should have been argued by appellate counsel, and that the failure to do so itself establishes the ineffectiveness. The Strickland standard cannot be met by such generalities, particularly where, as here, none of defendant's points have merit.

Defendant argues that the sentence imposed upon him should be reduced. He has previously made that argument and we have previously rejected it. See R. 3:22-5. ("A prior adjudication upon the merits of any ground of relief is conclusive whether made in the proceedings resulting in conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings.").

Thus defendant has failed to present a prima facie case of ineffective assistance of counsel regarding the performance of either his trial or his appellate counsel, and is not entitled to an evidentiary hearing.

Where a defendant does not assert his innocence in a case where the proofs against him are overwhelming, he is not permitted to withdraw his guilty plea. See State v. Slater, 198 N.J. 145, 157-58 (2009). Thus, this argument lacks merit, and we will not address it further. See R. 2:11-3(e)(2).