STATE OF NEW JERSEY v. DAVID BREECE

NOT FOR PUBLICATION WITHOUT THE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.

DAVID BREECE,

Defendant-Appellant.

________________________________________________________________

March 24, 2014

Submitted March 4, 2014 Decided

Before Judges Espinosa and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 94-11-1203.

David Breece, appellant pro se.

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersch, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant David Breece appeals from the April 3, 2012 order denying his second petition for post-conviction relief (PCR). We affirm.

A jury convicted defendant of first-degree felony murder, N.J.S.A. 2C:11-3(a)(3), and second-degree robbery, N.J.S.A. 2C:15-1. Defendant was convicted of causing the death of the victim by punching him in the course of a robbery. After the robbery conviction was merged into the murder conviction, defendant was sentenced on May 2, 1996 to life in prison with a mandatory minimum term of thirty years. His conviction was affirmed on appeal. State v. Breece, No. A-0828-96 (App. Div. May 7, 1998), certif. denied, 156 N.J. 406 (1998). His first PCR petition was denied on June 19, 2000. That denial was affirmed on appeal. State v. Breece, No. A-0412-00 (App. Div. February 22, 2002), certif. denied, 174 N.J. 42 (2002).

Defendant filed a second petition for PCR,1 claiming ineffective assistance of trial counsel and an improper jury charge on causation. He argued that trial counsel should have obtained and presented his school records to support the claim that he was learning impaired, dropped out of school in the tenth grade, and could not understand the Miranda2 warnings. He attached to his second PCR petition his letter from 2003 to the school seeking these records and the records he obtained. Defendant argued that this claim involves newly discovered evidence: the school records. The judge denied defendant's second PCR petition as time-barred pursuant to Rule 3:22-12(a)(2)(C).

On appeal defendant raises the following issues:3

POINT I: THE APPELLANT SUBMIT THAT THE TRIAL COURT ERRED BY DENYING SECOND POST CONVICTION RELIEF BASED ON HIS CLAIMS WERE NOT FILED WITHIN ONE YEAR OF HIS LAST P.C.R. BECAUSE NEWLY DISCOVERED EVIDENCE IS AN EXCEPTION TO THE BAR AND THERE IS A FACTUAL CONSTITUTIONAL QUESTION INVOLVED THE COURT SHOULD GIVE A FACTUAL BASIS ON THE CLAIMS BEFORE DENYING THE PETITION.

POINT II: THE PETITIONER SUBMIT THAT HE IS SUBMITTING THE HEREIN ISSUE WITH GOOD CAUSE SHOWN AND SHOULD NOT BE TIME BARRED AS INEFFECTIVE ASSISTANCE OF COUNSEL IS A CONSTITUTIONAL CLAIM.

POINT III: THE PETITIONER SUBMIT THE TRIAL COURT ERRED BY NOT GRANTING POST CONVICTION RELIEF WHERE COUNSEL WAS INEFFECTIVE FOR FAILING TO PROPERLY PROVIDE THE NECESSARY EVIDENCE OF PROOF DURING A MIRANDA HEARING THAT DAVID BREECE COULD NOT READ OR WRITE WHEN HE WAS INTERROGATED BY DETECTIVE RIOS AND OTHERS OF THE TRENTION POLICE DEPARTMENT WHICH LEAD THE COURT TO CONCLUDE THAT THE EVIDENCE RELIED ON BY DETECTIVE RIOS WAS UNDISPUTED.

POINT IV: THE COURT ERRED BY NOT GRANTING POST CONVICTION RELEIF WHERE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST THE FOLLOWING INSTRUCTIONS RAISED BELOW UNDER THE FOLLOWING SUBPOINTS.

(SUB-POINT A.):

THE PETITIONER SUBMIT THAT COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST A CAUSATION INSTRUCTION DURING HIS JURY TRIAL AND REQUIRING THAT THE DEFENDANT SHOULD BE FOUND NOT GUILTY ONLY WHEN DEATH OCCURS IN A MANNER THAT IS SO UNEXPECTED OR UNUSUAL THAT HE COULD NOT JUSTLY BE FOUND CULPABLE FOR THE RESULT.

Rule 3:22-12 contains the following time limitations for the filing of a second or subsequent petition for PCR:

Notwithstanding any other provision in this rule, no second or subsequent petition shall be filed more than one year after the latest of:

(A) the date on which the constitutional right asserted was initially recognized by the United States Supreme Court or the Supreme Court of New Jersey, if that right has been newly recognized by either of those Courts and made retroactive by either of those Courts to cases on collateral review; or

(B) the date on which the factual predicate for the relief sought was discovered, if that factual predicate could not have been discovered earlier through the exercise of reasonable diligence; or

(C) the date of the denial of the first or subsequent application for post-conviction relief where ineffective assistance of counsel that represented the defendant on the first or subsequent application for post-conviction relief is being alleged.

Defendant does not rely on a newly recognized constitutional right, (A), nor does he allege ineffective assistance of PCR counsel, (C). Rather, he claims that the factual predicate for his claim, the school records, were not discovered until recently.4 It cannot be fairly said, however, that these records, "could not have been discovered earlier through the exercise of reasonable diligence[.]" R. 3:22-12(a)(2)(B). Defendant notes that his trial counsel brought out his learning disabilities at trial, but neglected to do so at the Miranda hearing. Defendant raised this issue on his first PCR, where it was rejected because the same issue had been unsuccessfully raised on direct appeal. Breece, supra, No. A-0412-00 (slip op. at 2). It is too late to raise the issue now, for a third time, approximately thirteen years after the PCR denial and seventeen years after trial.5 The fact that defendant may not have had possession of the school records when he previously raised this issue does not permit him to relitigate the same issue. With regard to the issue concerning the jury charge, it cannot be considered on PCR because it could have been raised on direct appeal, Rule 3:22-4(a)(1), and, in fact, other issues regarding the jury charge were raised unsuccessfully on direct appeal. Breece, supra, No. A-0828-96 (slip op. at 12-14).

1 The record does not reveal the date the second PCR petition was filed with the trial court.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3 We reproduce the headnotes as written.

4 We cannot determine when the records sought by defendant in 2003 were supplied by the school system.

5 In its brief the Mercer County Prosecutor's Office states that the Office of the Attorney General referred the matter to it for response. The Prosecutor's Office, however, chose not to respond substantively to defendant's pro se brief, which he filed from state prison. Instead, in its brief the Prosecutor's Office asked us to dismiss the appeal for lack of service of transcripts of prior hearings and prior decisions. Dismissal should be sought through a motion. R. 2:8-2. This improper appellate practice was not helpful to our ability to efficiently review the issues raised by defendant.