STATE OF NEW JERSEY v. ROHAN GRANVILLE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROHAN GRANVILLE,

Defendant-Appellant.

______________________________

November 16, 2016

Submitted September 22, 2016 Decided

Before Judges Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 93-07-1669.

Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief).

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Frances Tapia Mateo, Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant appeals from the trial court's April 8, 2014 order denying defendant's petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

Following a crime spree with other individuals throughout Jersey City on September 30, 1992, defendant was charged with first-degree felony murder, three counts of first-degree robbery, various weapons offenses, receiving stolen property, and aggravated arson. Defendant was tried before a jury and convicted of three counts of first-degree armed robbery, N.J.S.A. 2C:15-1, second-degree aggravated arson, N.J.S.A. 2C:17-1a, third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-1a, and two counts of third-degree receiving stolen property, N.J.S.A. 2C:20-7. Defendant was sentenced to seventy-five years of incarceration with thirty-five years of parole ineligibility. Defendant never filed a direct appeal of his conviction.

During defendant's trial in April 1995, he was represented by Stephen Olitskey (Counsel). Unbeknownst to defendant at the time, Counsel had been indicted by an Essex County Grand Jury on March 25, 1995, and was under investigation for allegations of professional misconduct. Counsel was later disbarred on February 6, 2002. Another former client of Counsel successfully filed for PCR asserting ineffective assistance of counsel in a 2001 claim. See State v. Cottle, 194 N.J. 449, 473 (2008).

Defendant filed a petition for PCR on June 17, 2011. Defendant failed to provide complete transcripts and the court dismissed the petition without prejudice on September 17, 2012. Defendant refiled the petition on July 5, 2013, and the PCR judge heard argument on March 13, 2014. After requesting additional submissions, the PCR judge issued an oral opinion denying defendant's petition for PCR on April 7, 2014, because the petition was time-barred, defendant had not established any exception to the bar, and even if his petition had been timely, he did not assert a prima facie showing under the Strickland/Fritz standard.1 This appeal followed.

On appeal, defendant argues

POINT I: DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD NOT BE TIME BARRED BECAUSE DEFENDANT'S DELAY IN FILING WAS DUE TO EXCUSABLE NEGLECT AND THE INTERESTS OF JUSTICE REQUIRE HIS CLAIMS BE HEARD.

POINT II: DEFENDANT HAS SUBMITTED PRIMA FACIE EVIDENCE REQUIRING HE BE GRANTED AN EVIDENTIARY HEARING ON POST CONVICTION RELIEF.

POINT III: DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO POST CONVICTION RELIEF.

In a supplemental pro se brief defendant argues

COUNSEL'S CONSTITUTIONALLY DEFICIENT FAILURE TO TAKE A TIMELY APPEAL DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO APPEAL PURSUANT TO THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, WHICH GUARANTEES CRIMINAL DEFENDANTS THE RIGHT TO REASONABLY EFFECTIVE LEGAL ASSISTANCE (Not raised below).

The petition was denied as untimely by the PCR judge because defendant did not provide facts showing excusable neglect or establishing that enforcement of the procedural bar would result in fundamental injustice. We conclude defendant's petition for PCR is time-barred.

No petition for PCR can be filed more than five years after the date of entry of the judgment of conviction being challenged, unless the petition "alleges facts showing that the delay beyond said time was due to defendant's excusable neglect" and shows that, if the facts are found to be true, "there is a reasonable probability that . . . enforcement of the time bar would result in a fundamental injustice." R. 3:22 12(a)(1). The rule serves two important interests: 1) preventing prejudice to the State's case as memories fade, witnesses become unavailable, and evidence is lost, and 2) respecting the finality of judgments so as to "allay the uncertainty associated with an unlimited possibility of relitigation" which prompts "those believing they have grounds for post-conviction relief to bring their claims swiftly." State v. Mitchell, 126 N.J. 565, 575-76 (1992). Although the five-year procedural bar is not absolute, relaxation is permitted only when a defendant shows the delay in filing was due to excusable neglect or the interests of justice demand it. State v. Milne, 178 N.J. 486, 492 (2004).

"In the context of post-conviction relief, a court should relax Rule 3:22-12's bar only under exceptional circumstances." Mitchell, supra, 126 N.J. at 580. Factors to consider in determining whether there has been injustice warranting a relaxation of the procedural bar include 1) the extent and cause of the delay, 2) the prejudice to the State, and 3) the importance of the petitioner's claim. State v. Afanador, 151 N.J. 41, 52 (1997). "Absent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay." Ibid. To meet the burden, a petition must include more than a bare allegation. State v. Goodwin, 173 N.J. 583, 594 (2002). "The petition itself must allege the facts relied on to support the claim." Mitchell, supra, 126 N.J. at 577.

Defendant claims the time bar should be relaxed due to excusable neglect because he was unaware of Counsel's potential conflict until the relevant decisions were published. We reject this argument because defendant filed his petition nine years after Counsel was disbarred and sixteen years after his own conviction. Defendant claims he was unaware of Counsel's legal troubles, but the disbarment decision was published in 2002, and Counsel's indictment was publicly available since 1995. Moreover, defendant has not demonstrated how enforcement of the time bar would result in fundamental injustice.

Although it is unnecessary to address defendant's remaining arguments, we add the following comments. We reject defendant's argument he was denied effective assistance of counsel under the standard set forth in Strickland/Fritz. Defendant has not shown Counsel's performance was insufficient because Counsel made "errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Strickland, supra, 466 U.S. at 686, 104 S. Ct. at 2063, 80 L. Ed 2d, at 693. Nor has defendant shown he was prejudiced by the deficient performance, Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, or that Counsel's performance fell below an objective standard of reasonableness. State v. Chung, 210 N.J. Super. 427, 434 (App. Div. 1986). Indeed, defendant was acquitted at trial of the most serious charge, first-degree felony murder.

Defendant contends under Cottle, supra, Counsel's indictment created a conflict of interest rendering his representation ineffective per se. In Cottle, the New Jersey Supreme Court held Counsel had a per se conflict of interest when both he and his client were simultaneously under indictment in the same county and being prosecuted by the same prosecutor's office. Cottle, supra, 194 N.J. at 473. In this matter, defendant was tried in Hudson County, while Counsel was under indictment in Essex County. There was no per se conflict of interest because Counsel was not an adversary to the Hudson County Prosecutor's Office in his own case.

Moreover, defendant has not demonstrated how Counsel's actual representation of him at trial was deficient.2 Counsel's failure to disclose his criminal charges from another county may have been unethical, but an ethical violation on its own does not necessarily satisfy the Strickland/Fritz standard, which requires an actual showing that counsel was deficient.

Finally, we reject defendant's claim that he was entitled to an evidentiary hearing on his PCR claim. A court reviewing PCR petitions based on claims of ineffective assistance of counsel should only grant an evidentiary hearing if a defendant establishes a prima facie showing in support of the relief requested. State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10(e).

We do not address defendant's remaining arguments as these arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed 2d, 657 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

2 Defendant also contends Counsel's failure to file an appeal on behalf of defendant was deficient and he was prejudiced because defendant otherwise would not have forfeited his right to a direct appeal. We reject this argument. It has taken defendant over a decade to file this claim for PCR. Defendant should have known within five years that his appeal had never been filed and could have brought this claim significantly earlier. Therefore, it is difficult to reach the conclusion that defendant intended for an appeal to be filed when he did not take any action regarding his case for sixteen years.