STATE OF NEW JERSEY v. D.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

D.D.,

Defendant-Appellant.

_______________________________

June 16, 2015

Before Judges Lihotz and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 94-04-440.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, on the brief).

PER CURIAM

On defendant D.D.'s petition for certification, the Supreme Court summarily vacated a June 24, 2014 order entered by another panel of this court, "[t]o ensure that there can be no question of fair and unbiased appellate proceedings," because a member of the panel reviewing defendant's appeal from an order denying his petition for post-conviction relief (PCR) was the judge who presided over defendant's original trial. State v. D.D., 220 N.J. 91 (2015).

We consider, anew, defendant's appeal from an October 22, 2012 order denying his petition for PCR and denial of his request for an evidentiary hearing. Defendant was convicted by a jury and sentenced on July 21, 1995. His conviction and aggregate sentence of thirty years in prison were affirmed and certification was denied. State v. D.D., No. A-0391-95 (June 3, 1998) (slip op. at 15), certif. denied, 156 N.J. 412 (1998). Defendant's PCR petition asserted trial counsel provided ineffective assistance in the defense of allegations he sexually assaulted his girlfriend's minor child. Defendant maintained the allegations were fabricated because the child wanted to "get him out of the house."

After considering the arguments and PCR pleadings, Judge Eugene H. Austin rejected defendant's PCR petition, concluding it was filed more than five years following defendant's conviction and, therefore, was time-barred in accordance with Rule 3:22-12(a). The judge found no facts showed the untimely filing of defendant's petition resulted from excusable neglect. Defendant's request for an evidentiary hearing was also denied.

On appeal before this court, defendant argues the denial of PCR must be reversed because

POINT I

DEFENDANT'S PCR PETITION SHOULD NOT BE TIME-BARRED.

POINT II

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF COUNSEL'S INEFFECTIVENESS, IN THAT TRIAL COUNSEL FAILED TO ADEQUATELY COMMUNICATE WITH DEFENDANT AND FAILED TO ADEQUATELY PREPARE FOR TRIAL; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING THESE CLAIMS. (Partially Raised Below).

Following our review of the record and applicable law, we reject defendant's arguments and affirm the order denying his petition for PCR. Further, we find no evidentiary hearing was warranted.

This is defendant's first PCR petition, which was filed on August 9, 2011, approximately sixteen years after he was convicted. Before the Law Division, defendant certified counsel was newly assigned "just prior to trial" and "did not adequately go over the discovery with [him] or any other materials necessary to prepare [his] case in a meaningful way." He stated trial counsel only met with him in the court house and because "there were always other people around" he could not "speak openly with trial counsel because others would be able to hear [their] conversations."

Further, defendant contended counsel failed to adequately inform him of his right to testify at trial. He argues "counsel's utter lack of preparation for such testimony" prevented him from "mak[ing] intelligent and informed decisions regarding [his] case." Defendant also addressed the untimeliness of his petition, stating only that he was "unable to file timely because [he] was in a special needs unit since 2000 due to mental health issues."

During oral argument defendant emphasized he was deprived of the opportunity to testify on his own behalf. He did not elaborate on the reason offered justifying his delay in filing his petition, which was the focus of the State's argument asserting PCR was procedurally barred.

Judge Austin agreed defendant's request was untimely. Nevertheless, he briefly addressed the merits of defendant's petition and found them insufficient to warrant an evidentiary hearing. The judge noted some issues raised on PCR were asserted and rejected on direct appeal. Regarding the challenge to whether defendant knowingly elected not to testify at trial, Judge Austin emphasized defendant waived his right to testify during his colloquy with the trial judge when the election was made. Judge Austin determined defendant was fully informed and voluntarily elected not to testify at trial.

"'Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus.'" State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)). "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459.

It is well-settled that to set aside a conviction based upon a claim of ineffective assistance of counsel, a petitioner must prove, by a preponderance of the evidence, that (1) counsel performed deficiently, and made errors so serious that he or she was not functioning as counsel guaranteed by the Sixth Amendment; and (2) defendant suffered prejudice as a result.

[State v. L.A., 433 N.J. Super. 1, 13 (App. Div. 2013).]

New Jersey has adopted the two-prong test handed down by the United States Supreme Court in the companion cases of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, and United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). See State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland's two-pronged test for PCR review). To establish a prima facie case of ineffective assistance of counsel, a defendant must prove

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

[Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]

Under the first prong, a defendant must demonstrate "counsel's representation fell below an objective standard of reasonableness." Ibid. Thus, "th[e] test requires the defendant to identify specific acts or omissions that are outside the wide range of reasonable professional assistance . . . ." State v. Jack, 144 N.J. 240, 249 (1996) (citation and internal quotation marks omitted). "'Reasonable competence' does not require the best of attorneys, but certainly not one so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

To meet the second prong, "[a] defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid.

In our review, we defer to the motion judge's findings so long as they are "supported by sufficient credible evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013). See also State v. Elders, 192 N.J. 224, 244 (2007) ("A trial court's findings should be disturbed only if they are so clearly mistaken that the interest of justice demand intervention and correction.") (citation and internal quotation marks omitted). Legal conclusions which flow from those facts, however, are reviewed de novo. Nash, supra, 212 N.J. at 540-41.

Rule 3:22-12(a) requires a defendant's first PCR petition to be filed within five years "after the date of entry . . . of the judgment of conviction that is being challenged," unless facts are alleged "showing that the delay beyond said time was due to [the] defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice." We note the rule was amended in 2010, after defendant's conviction and sentence; however, both the five-year bar and the requirement to "allege[] facts showing that the delay beyond said time was due to defendant's excusable neglect" remained unchanged.

In State v. DiFrisco, 187 N.J. 156 (2006), the Supreme Court noted "the five-year time limit is not absolute." Id. at 166 (brackets omitted) (citation and quotation marks omitted). When examining a presumptively untimely application, a "court should consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an injustice sufficient to relax the time limits." State v. Afanador, 151 N.J. 41, 52 (1997) (citation and internal quotation marks omitted). Further, the Court explained

[T]he time limitation in Rule 3:22-12 must be viewed in light of its dual purposes. As we explained in State v. Mitchell, 126 N.J. 565, 575 (1992), the first purpose is to ensure that the passage of time does not prejudice the State's retrial of a defendant

As time passes after conviction, the difficulties associated with a fair and accurate reassessment of the critical events multiply. Achieving "justice" years after the fact may be more an illusory temptation than a plausibly attainable goal when memories have dimmed, witnesses have died or disappeared, and evidence is lost or unattainable.

[DiFrisco, supra, 187 N.J. at 166-67.]

"Absent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay." State v. Milne, 178 N.J. 486, 492 (2004) (citation and internal quotation marks omitted).

Guided by these principles, our review of this record reveals insufficient facts to conclude defendant's circumstances fall within the framework of "excusable neglect" to warrant relaxation of the filing bar. Other than the broad statement defendant was in "a special needs unit since 2000 due to mental health issues," he did not disclose the nature of his condition or how or why his assignment to this unit precluded his timely pursuit of legal relief. See State v. E.W., 413 N.J. Super. 70, 78-79 (App. Div. 2010) (denying PCR noting "defendant has not supplied medical records in connection with his claims of disability, and he has not provided evidence that would permit us to conclude that his disabilities have substantially interfered with his ability to prosecute this matter"). Further, the events explaining when and why defendant's situation changed were not revealed. Perhaps these facts could have shed light on his inability to file for PCR. However, without this information, our evaluation of whether he diligently acted once able to do so is precluded.

On the other hand, as found by Judge Austin, the prejudice to the State in retrying this case after such a lengthy period of time is significant. We also conclude the record does not demonstrate a fundamental injustice. Defendant was counseled on his right to testify and the trial judge inquired into his understanding of this right as well as the voluntary decision to wave it.

Therefore, the extended delay in seeking PCR coupled with defendant's failure to state an adequate explanation of its cause are insufficient to relax the rule's time limits. Id. at 79. PCR was properly denied.

Affirmed.