STATE OF NEW JERSEY v. ALBERTO SCABONE

NOT FOR PUBLICATION WITHOUT THE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.

ALBERTO SCABONE,

Defendant-Appellant.

February 27, 2014

Submitted December 11, 2013 Decided

Before Judges Sapp-Peterson and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 80-08-4225.

Alberto Scabone, appellant pro se.

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans,Special DeputyAttorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Alberto Scabone appeals from the Law Division order denying his petition for post-conviction relief (PCR). We affirm the denial of his petition, substantially for the reasons set forth by Judge Eugene J. Codey, Jr. in his written opinion.

In 1993, a jury convicted defendant of two counts of first-degree murder, for killing his mother-in-law and sister-in-law, and one count of second-degree passion/provocation manslaughter, for killing his wife, as well as one count of second-degree arson, for setting fire to the apartment where the killings occurred. On April 2, 1981, firefighters responded to the fire at the apartment and found the dead women, all severely burned. Autopsies revealed the victims had been stabbed approximately ninety times in total; the victims did not die as a result of the fire but from internal bleeding resulting from the stab wounds, many of which were in the victims' backs. Defendant fled but was eventually arrested twelve years later.

Defendant was tried before a jury with Judge Codey presiding. After the jury returned its verdict, Judge Codey sentenced defendant to an aggregate term of eighty years in prison with a forty-year period of parole ineligibility. Defendant appealed, contending the other-crimes evidence should not have been admitted; the inculpatory testimony of his second wife should not have been admitted; the verdict sheet coupled with the instructions for each use precluded the jury from considering his passion/provocation defense; his right to indictment by grand jury precluded trial on uncharged offenses; and his sentence was excessive. We affirmed the convictions and the sentence in an unreported opinion issued on November 14, 1995. State v. Alberto Scabone, No. A-3498-93 (App. Div. November 14, 1995). On January 31, 1996, the Supreme Court denied certification. State v. Scabone, 143 N.J. 330 (1996).

In 1996, defendant filed a pro se petition for PCR, asserting both trial and appellate counsel were ineffective. He also contended the trial judge erred when he failed to charge the jury "as to the impact of [the] imperfect self[-]defense." By order dated September 20, 1996, Judge Codey denied the petition. Defendant appealed, claiming the judge erred in denying his petition without an evidentiary hearing. We affirmed on May 7, 1998, State v. Alberto Scabone, No. A-1491-96 (App. Div. May 7, 1998), and the Supreme Court denied certification on September 24, 1998. State v. Scabone, 156 N.J. 410 (1998).

On September 28, 2004, Judge Codey denied defendant's motion to correct an illegal sentence. Defendant then filed another motion attacking the legality of his sentence, which another judge denied on January 3, 2005. Defendant appealed and we affirmed on March 8, 2006. State v. Alberto Scabone, A-2992-04 (App. Div. March 8, 2006). The Supreme Court denied certification on October 12, 2006. State v. Scabone, 188 N.J. 491 (2006).

Defendant filed the petition for PCR under review on January 5, 2010. On January 12, 2010, Judge Codey denied defendant's petition, finding it both procedurally-barred and time-barred. Judge Codey determined defendant's latest petition "raises the identical issues from previous applications."

This appeal followed, with defendant presenting the following arguments:

POINT I

THE INSTANT PETITION FOR POST-CONVICTION RELIEF IS UN-TIMELY, HOWEVER, EXCUSABLE NEGLECT EXISTS OBVIATING THE NECESSITY OF PETITIONER HAVING TO STRICTLY COMPORT WITH THE FIVE[-]YEAR PERIOD OF LIMITATIONS.

POINT II

PETITIONER'S CONVICTION WAS SECURED IN VIOLATION OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL THROUGHOUT THE VARIOUS STAGES OF THE PROCEEDINGS.

POINT III

PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL THROUGHOUT THE COURSE OF HIS APPEALS WHEN CHALLENGING HIS CONVICTIONS AND SENTENCES.

POINT IV

THE PROCEDURAL BAR IN DEFENDANT'S CASE SHOULD BE EXCUSED PURSUANT TO [RULE] 1:1-2, BECAUSE THE PCR COURT ERRED BY HOLDING THAT DEFENDANT'S PCR PETITION WAS UNTIMELY, WHEN IN FACT THE CRIMINAL DIVISION MANAGERS OFFICE HAD LOST THE DEFENDANT'S PETITION, WHICH WAS TIMELY FILED.

Based on our review of the record and the applicable law, we conclude that these arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We add the following comments.

To establish a prima facie case of ineffective assistance of counsel, the defendant must show: (1) counsel's performance was objectively deficient; and (2) counsel's deficient performance prejudiced the defendant to the extent that he was deprived of his right to a fair trial. State v. Fritz, 105 N.J. 42, 52 (1987) (adopting the United States Supreme Court's two-prong test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)).

Here, defendant's claims of ineffective assistance are "bald assertions," which are not sufficient to establish a prima facie case. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Defendant fails to present any objective facts to show any of his claims have substantive merit. The record fully supports Judge Codey's conclusion that "[t]he record is entirely barren of any proof of petitioner's allegations."