STATE OF NEW JERSEY v. RONNY B. LAYNE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1996-04T21996-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONNY B. LAYNE,

Defendant-Appellant.

________________________________________________

 

Submitted December 21, 2005 - Decided January 23, 2006

Before Judges Stern and Grall.

On appeal from the Superior Court of New

Jersey, Law Division, Burlington County,

Indictment No. 0876-12-83.

Ronny B. Layne, appellant, pro se.

Robert D. Bernardi, Burlington County Prosecutor,

attorney for respondent (Missy Piccioni,

Assistant Prosecutor, of counsel on the

brief).

PER CURIAM

In 1983, defendant pled guilty to an accusation charging felony murder. As a result of the negotiated disposition, the prosecutor did not pursue a capital case. Defendant admitted to tying up a person who gave him a ride on the New Jersey Turnpike, ordering him out of the car and shooting him in the back of the head. He now appeals from the denial of his third petition for post-conviction relief (PCR). Judge Marvin Schlosser, in a letter opinion dated October 22, 2004, concluded that the petition was time-barred, that defendant had "exhausted all of [his] post conviction relief remedies" and that the petition was "without any merit whatsoever." We affirm the order substantially for the reasons expressed by Judge Schlosser with the subsequent additional comments. See also R. 3:22-4,

-5, -12.

Defendant asserts constitutional claims that (1) he was "denied representation of counsel at a critical stage" in the criminal proceedings, when he was committed to the Trenton Psychiatric Hospital for observation; (2) he was "denied representation of counsel" in making a motion to withdraw his guilty plea premised on the claim that the plea was not knowingly and voluntarily entered, and he was not competent to enter the plea; and (3) counsel was ineffective in not requesting a competency hearing and permitting the guilty plea.

In three of the four prior opinions of this court, we have addressed the voluntariness of the plea, the application to withdraw it, the impact of the commitment and the representation received. State v. Layne, No. A-4765-83T4 (App. Div. Sept. 24, 1985) (direct appeal); State v. Layne, No. A-0471-86T4 (App. Div. Feb. 8, 1989); State v. Layne, No. A-3893-89T4 (App. Div. Sept. 25, 1991); State v. Layne, No. A-7119-95T4 (App. Div. Mar. 16, 1999). These issues were also addressed at length by the Third Circuit in affirming the denial of habeas corpus relief. Layne v. Moore, No. 02-1921 (3d Cir. Jan. 21, 2004).

Defendant's present brief emphasizes that he was committed ex parte to Trenton Psychiatric Hospital without representation of counsel and contends that if counsel had investigated the commitment reports, he would have realized defendant was unable to understand the plea proceedings and was unable to enter a knowing plea. However, the commitment was after the guilty plea was entered, and nothing in the record before us, including the discharge summary dated January 8, 1984 of the Forensic Psychiatric Hospital, about two weeks after the plea was entered, supports defendant's contention. In fact, the discharge summary states "[h]e knows what plea bargaining is" and was "competent to stand trial at this time." Moreover, defendant moved to discharge counsel after the plea was entered and before sentencing.

On the direct appeal, defendant challenged the denial of the motion to withdraw, the knowing and voluntary nature of the plea and the effectiveness of counsel. We rejected the contentions without prejudice to a PCR. We thereafter affirmed the denial of the first PCR, which also attacked the voluntariness and knowing nature of defendant's guilty plea and the competency of counsel in connection with the proceedings - noting that the issues were previously addressed. And in 1999 we affirmed the denial of the second PCR addressed to the effectiveness of counsel incident to the plea and defendant's desire to withdraw it. Finally, in affirming the denial of federal habeas corpus, the Third Circuit (albeit on the limited review authorized by the Anti-Terrorism and Effective Death Penalty Act of 1996) reviewed the proceedings at which the issues were raised and addressed the merits in terms of support for the State findings that the plea was "knowingly and voluntarily" entered and was not entered while he was "mentally incompetent." The quality of the State's case was also noted in the Third Circuit opinion in terms of the claim of ineffective assistance of counsel.

In sum, we affirmed the conviction in 1985, reversed the denial of the first PCR in 1989 and remanded for a hearing with the assistance of counsel at which defendant declined to complete a presentation of proofs in support of his claim, after which we affirmed the denial of PCR in 1991. Defendant then filed a second PCR which was denied, and we affirmed again in 1999. Thereafter, in 2004, the Third Circuit affirmed the District Court's denial of habeas relief in a comprehensive opinion. We now review the denial of defendant's third PCR petition. No matter how stated - although with a different emphasis - we have addressed these issues before, and to the extent we have not addressed the issues as raised in their present form, they could have been previously raised, R. 3:22-4, -5, and there is no showing they could not have been asserted within the time permitted by the Rules. See R. 3:22-12. See also, e.g., State v. Mitchell, 126 N.J. 565, 589 (1992); State

v. Cummings, 321 N.J. Super. 154, 164-171 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Affirmed.

 

Despite the contents of the discharge summary, the commitment was not for evaluation in terms of competency to stand trial or at the time of offense, but for his suicidal ideations in jail after his guilty plea.

The Third Circuit, like we did on the appeal from the second PCR, noted that defendant was permitted to call witnesses regarding the plea and effectiveness of counsel, and ultimately withdrew his proofs, at the first PCR hearing which was conducted on our remand. The transcript of that hearing has not been presented on this appeal.

It is not clear that the entire record has been presented to us, so we decide the matter based on the transcripts and pleadings in the appendices and the prior opinions noted above.

(continued)

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A-1996-04T2

January 23, 2006