STATE OF NEW JERSEY v. LLEWELYN JAMES

NOT FOR PUBLICATION WITHOUT THE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.

LLEWELYN JAMES, a/k/a LOUIS JAMES,

and LOU JAMES,

Defendant-Appellant.

_____________________________________

December 13, 2016

 

Submitted October 6, 2016 Decided

Before Judges Lihotz and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-08-2875.

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

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Llewelyn James appeals from a May 13, 2014 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. On appeal, defendant contends not only trial counsel but also PCR counsel rendered ineffective assistance. After reviewing the record in light of the applicable legal principles, we affirm in part and remand for the appointment of new PCR counsel and a new hearing.

I

On November 1, 2007, a jury convicted defendant of six counts of murder, N.J.S.A. 2C:11-3(a)(1) and (2); four counts of felony murder, N.J.S.A. 2C:11-3(a)(3); one count of attempted murder, N.J.S.A. 2C:11-3(a); two counts of unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and two counts of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). On January 25, 2008, after merging the appropriate counts, the court imposed an aggregate sentence of 315 years of imprisonment, with an eighty-five percent period of parole ineligibility.

On direct appeal we affirmed defendant's convictions and sentence. State v. Llewelyn James, No. A-4153-08 (App. Div. Sept. 7, 2012). The Supreme Court denied his petition for certification. State v. James, 213 N.J. 389 (2013). The facts underlying defendant's convictions are set forth in our opinion and need not be repeated here.

On April 29, 2013, more than five years after the judgment of conviction had been entered, defendant filed a verified petition for PCR. The allegations in the petition pertinent to the issues on appeal were his trial attorneys were ineffective because they failed to (1) obtain records and conduct an investigation, and (2) failed to call defendant's mother, Fern Ferguson, and his cousin, Alvin Bethune, as witnesses at trial.

Defendant's assigned PCR counsel filed a brief. With respect to the issues defendant raises on appeal, PCR counsel asserted: (1) defendant's petition was not time-barred under Rule 3:22-12(a)(1);1 (2) trial counsel failed to provide the State's discovery to defendant; and (3) trial counsel did not secure the services of an investigator. His brief did not address defendant's claim trial counsel failed to call Ferguson and Bethune as witnesses at trial.

On the procedural question, PCR counsel contended excusable neglect precluded the timely filing of the petition and, further, enforcement of the five-year time bar would be fundamentally unjust. See R. 3:22-12(a)(1). Specifically, he argued the only witness who testified at defendant's competency hearing opined defendant was "borderline retarded." Counsel claimed this intellectual limitation impaired defendant's ability to adhere to the time constraints in Rule 3:22-12(a)(1). In addition, there was no counsel "available to Mr. James as the five-year time bar was approaching to encourage his filing a timely application." Finally, PCR counsel commented defendant was serving a sentence of "extraordinary proportions," suggesting enforcement of the time bar would be fundamentally unjust.

On the substantive questions, PCR counsel contended trial counsel never provided defendant with the State's discovery, depriving him of the opportunity to provide insight into such discovery to trial counsel, which may have aided efforts to overcome the strengths in or maximize the weaknesses of the State's case. PCR counsel further noted trial counsel failed to hire an investigator to explore "the incidents at issue in the case[,] thereby preventing the discovery of this case-changing information. Thus, the defense was left only with the hope of poking holes in the State's case."

PCR counsel did not set forth how defendant would have been able to aid trial counsel had he reviewed the State's discovery. In fact, although it appears PCR counsel reviewed the trial transcript, it is not clear he reviewed the State's discovery. Counsel also did not address what should have been investigated, what that investigation would have yielded, and how the results of the investigation would have altered the outcome of the trial in defendant's favor.

The PCR court denied all defendant's requests for relief. The court rejected defendant's contention he had an intellectual limitation that impaired him from filing a timely PCR petition, given he had been found competent to stand trial and, after the verdict, managed to secure counsel to file a direct appeal. Further, the court found the State would be prejudiced if defendant were permitted to prosecute his petition given the crimes occurred in 2002. The court did not address how the late filing of the PCR petition itself prejudiced the State. Finally, the court determined defendant would not suffer an injustice if the five-year time bar were not relaxed.

Although the PCR court found the petition time-barred, it also rejected defendant's and PCR counsel's substantive arguments, noting defendant failed to submit any certifications or point to any evidence demonstrating how he had been prejudiced by trial counsels' failure to provide him with the discovery, undertake an investigation, and call Ferguson and Bethune as witnesses. Concluding defendant did not make out a prima facie case of ineffective assistance of counsel, see Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the PCR court denied the relief defendant sought in his PCR petition.

II

On appeal, defendant's PCR appellate counsel presents the following arguments for our consideration

POINT I DEFENDANT'S PCR PETITION SHOULD NOT HAVE BEEN PROCEDURALLY BARRED.

POINT II THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF TRIAL COUNSELS' INEFFECTIVENESS FOR FAILING TO INVESTIGATE AND FAILING TO PROVIDE DEFENDANT WITH DISCOVERY; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR A NEW PCR HEARING DUE TO PCR COUNSEL'S INEFFECTIVENESS FOR FAILING TO PROVIDE DOCUMENTATION IN SUPPORT OF THE CLAIM.

POINT III THIS MATTER MUST BE REMANDED FOR A NEW PCR HEARING BECAUSE PCR COUNSEL FAILED TO ADVANCE A CLAIM DEFENDANT RAISED IN HIS PETITION.

Defendant also filed a supplemental brief as a self-represented litigant, in which he contends

POINT I THE SWORN CERTIFICATION OF DEFENDANT'S DIRECT APPEAL ATTORNEY SPECIFICALLY STATING THAT SHE DID NOT ADVISE DEFENDANT OF THE FIVE-YEAR TIME BAR, NOR DID SHE FILE DEFENDANT'S PETITION FOR PCR BECAUSE CERTIFICATION WAS STILL PENDING FACTUALLY PROVES THAT THE DELAY WAS THE RESULT OF EXCUSABLE NEGLECT.

POINT II PCR COUNSEL'S FAILURE TO OBTAIN REQUIRED AFFIDAVITS FROM DIRECT APPEAL COUNSEL, FERN FERGUSON, AND ALVIN BETHUNE, ALSO FAILURE TO PRESENT ANY OF THE NECESSARY RECORDS OR DOCUMENTS REQUESTED BY THE APPELLANT VIOLATED STANDARDS GOVERNING PCR COUNSEL STATE V. RUE, 175 N.J. 1 (2002); STATE V. WEBSTER, 187 N.J. 254 (2006) DEPRIVED APPELLANT HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND A FAIR HEARING ON PCR.

POINT III THE CUMULATIVE ERRORS OF PCR COUNSEL DEPRIVED APPELLANT OF A FAIR HEARING.

POINT IV THE APPELLANT'S JUVENILE DE-FACTO LIFE WITHOUT PAROLE SENTENCE IS UNCONSTITUTIONAL PURSUANT TO THE EIGHTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND MILLER V. ALABAMA, 132 S. Ct. 2455 (2012), AND AS APPLIED RETROACTIVELY BY BOUSELY V. UNITED STATES, 118 S. Ct. 1604, 1610 (1998); FURMAN V. GEORGIA, 92 S. Ct. 2726; SCHIRO V. SUMMERLIN, 124 S. Ct. 2519, 2522, 2523; SAFFLE V. PARKS, 110 S. CT 1257 (1990); ROBINSON V. NEIL, 93 S. Ct. 876, 878 (1973). THEREFORE THE SENTENCE IS AN EXCESSIVE AND ILLEGAL SENTENCE.

A. The Eighth Amendment Requires A Separate Analysis For Juvenile Offenders Proportionality.

B. The Sentence Was Offense Based And Not Offered Based As Envisioned In Miller.

C. Mandatory Sentences Unconstitutionally Deprive Juveniles Of Any Consideration Of The Relevant Characteristics Of Youth.

D. Juveniles Are Particularly Vulnerable To Negative Influences And Outside Pressures.

E. Mandatory Sentences For Juvenile Impermissibly Prevented The Trial Court From Fulfilling Its Constitutional Review Function.

F. Because James Was 16 Years Old At The Time of The Offense, The DeFacto Life-Without-Parole Sentence That He Received Violated The Prohibition Against Cruel And Unusual Punishment Under Both The State And Federal Constitutions.

G. The Appellant-Defendant Llewelyn James Today Is Not The Same Llewelyn James He Was When He Was 16 Years Old and When The Offense Occurred.

A

On appeal, PCR appellate counsel contends the PCR court erred when it found defendant's petition time-barred under Rule 3:22-12(a)(1), advancing the same arguments as PCR counsel. Counsel also argues whether the State would be prejudiced if the five-year time bar were relaxed is irrelevant, not to mention defendant filed his petition only three months after the deadline under Rule 3:22-12(a)(1).2 In addition, counsel contends enforcement of the time bar would result in a fundamental injustice to defendant if in fact trial counsels' alleged errors are true.

On the substantive issues, counsel notes defendant filed an affidavit on November 24, 2014, approximately six months after the PCR court rejected his petition, in which defendant complained he had requested, but PCR counsel failed to submit, affidavits from Ferguson and Bethune to the PCR court. Although in his affidavit defendant did not divulge what these witnesses would have stated at trial, defendant claimed these affidavits would have provided support for his contention trial counsel erred by not calling them as witnesses.3 Counsel also faults PCR counsel for not identifying in his brief defendant's ineffective assistance of counsel claim resulting from trial counsel's failure to call Ferguson and Bethune as defense witnesses, maintaining such omission violated Rule 3:22-6(d) and warranted this matter be remanded for a new PCR hearing.4

In the brief filed as a self-represented litigant, defendant also argues PCR counsel provided ineffective assistance. Defendant references a certification executed by his direct appeal counsel on June 22, 2015, who was representing defendant when the Supreme Court denied his petition for certification on March 25, 2013. This attorney certified she did not advise defendant to file a petition for PCR before the five-year deadline expired on January 25, 2013, because "I believed that based upon the procedural history of the case, the seriousness of the charges, the length of his sentence and the constitutional issues raised that defendant would be able to file a PCR petition."

Defendant contends he informed PCR counsel that direct appellate counsel was willing to certify to that which she ultimately admitted in her June 22, 2015 certification, but he did not follow through and obtain and submit her certification to the PCR court.

Defendant also contends he requested but PCR counsel failed to interview Ferguson or Bethune and to review the discovery. Finally, defendant argues his sentence was excessive and illegal.

B

In light of our disposition, it is unnecessary to address the legal principles underlying claims of ineffective assistance of trial counsel. However, we review the legal principles invoked when a party alleges PCR counsel provided ineffective assistance, relief which "is not predicated upon a finding of ineffective assistance of counsel under the relevant constitutional standard." State v. Hicks, 411 N.J. Super. 370, 376 (App. Div. 2010) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Rule 3:22-6(d) "also imposes an independent standard of professional conduct upon an attorney representing a defendant in a PCR proceeding." Ibid.

"[T]here can be no question that a defendant is entitled to effective and competent assistance of counsel" when counsel is appointed for a PCR petitioner. State v. McIlhenny, 333 N.J. Super. 85, 87 (App. Div. 2000). In State v. Webster, 187 N.J. 254, 257 (2006), the Court held PCR counsel must "communicate with the client, investigate the claims urged by the client, and determine whether there are additional claims that should be brought forward. Thereafter, counsel should advance all of the legitimate arguments that the record will support."

If counsel deems an argument defendant wants to advance "to be without merit, counsel shall list such claims in the petition or amended petition or incorporate them by reference." R. 3:22-6(d). If the assertions made in a pro se petition simply do not require further argument, "counsel must so certify to the reviewing court. . . . In the absence of such certification, a reviewing court must presume that counsel did not make a meaningful effort to comply with the requirements of Rule 3:22-6(d)." Hicks, supra, 411 N.J. Super. at 377.

We conclude, based on Hicks and Rule 3:22-6(d), a remand is necessary to enable the PCR court to consider the grounds for relief defendant articulated in counsel's merits brief and defendant's supplemental brief, as well as in defendant's November 24, 2014 affidavit and direct appellate counsel's certification.

Defendant contends he expressly asked PCR counsel to obtain affidavits from Ferguson and Bethune and submit them to the court, but counsel's brief before the PCR court was silent on this issue. Even if PCR counsel believed trial counsel had not been ineffective for not calling these two witnesses at trial, he was not free to ignore this claim. See R. 3:22-6(d). He should have certified "no further argument or elaboration" was necessary or, if he did not agree with defendant's claim, should have at least referenced such claim in his brief. Hicks, supra, 411 N.J. Super. at 377.

In addition, there is no indication PCR counsel reviewed the State's discovery. Counsel had a duty to investigate the merits of defendant's claim trial counsels' failure to share this discovery with him or to conduct an investigation fatally altered the outcome of the trial.

We recognize defendant has not come forward with evidence indicating how the outcome of the trial would have been different had the subject witnesses been called, the subject discovery shared with him, and an investigation conducted. However, it is unclear whether defendant has seen the discovery or has had contact with the two witnesses.

On the question whether the petition was timely filed, defendant contends he alerted PCR counsel of the certification direct appellate counsel was willing to execute. That certification and the impact of Rule 3:22-3 must be addressed by PCR counsel in accordance with Hicks and Rule 3:22-6(d).

Finally, we express no opinion on the merits of defendant's application against either trial or PCR counsel. None of the comments or observations made in this opinion are to be interpreted as an indication of how the PCR court should decide this matter on remand.

In his appellate brief, defendant asserts various claims pertaining to the alleged impropriety of his sentence. Because these claims either were or could have been raised on direct appeal, we affirm the PCR court's decision such claims are now barred under Rule 3:22-4 (stating claims that could have been raised on direct appeal are barred from post-conviction review).

Affirmed in part and remanded for the appointment of new PCR counsel and a new hearing. We do not retain jurisdiction.

1 Rule 3:22-12(a)(1) provides

Except as provided in paragraphs (a)(2), (a)(3), and (a)(4) of this rule, no petition shall be filed pursuant to this rule more than 5 years after the date of entry pursuant to Rule 3:21-5 of the judgment of conviction that is being challenged unless it alleges facts showing that the delay beyond said time was due to 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.

2 Neither the parties nor the PCR court addressed the impact of Rule 3:22-3, which prohibits the filing of a PCR petition while appellate review is pending. Although the five-bar time period ostensibly expired on January 25, 2008, the Supreme Court did not deny defendant's petition for certification until March 25, 2013. If defendant was precluded from filing his petition for PCR until after March 25, 2013, his petition was filed just thirty-five days after the Court denied his petition for certification.

3 Defendant's affidavit in fact states he requested PCR counsel to obtain affidavits "from several witnesses to support the issues raised in my PCR petition." However, in his petition, defendant identified only Ferguson and Bethune as witnesses trial counsel failed to call at trial.

4 Rule 3:22-6(d) provides in pertinent part

Counsel should advance all of the legitimate arguments requested by the defendant that the record will support. If defendant insists upon the assertion of any grounds for relief that counsel deems to be without merit, counsel shall list such claims in the petition or amended petition or incorporate them by reference. Pro se briefs can also be submitted.