STATE OF NEW JERSEY v. GEORGE C. RILEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5791-03T45791-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GEORGE C. RILEY,

Defendant-Appellant.

________________________________

DOCKET NO. A-5912-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GEORGE C. RILEY,

Defendant-Appellant.

________________________________________________________

 

Submitted January 17, 2006 - Decided January 30, 2006

Before Judges C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 86-03-365.

Yvonne Smith Segars, Public Defender, attorney for appellant (David A. Snyder, Designated Counsel, of counsel and on the briefs).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mark P. Stalford, Assistant Prosecutor, of counsel; Karen Kazanchy, Legal Assistant, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant was charged in Monmouth County Indictment No. 86-03-365 with attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-1(a)(1); attempted endangerment of a child, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4(a); and attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(b). On June 5, 1986, a jury found defendant guilty on all counts.

The trial judge denied defendant's motion for a new trial, granted the State's motion for the imposition of an extended term, and sentenced defendant to a twenty-year term of imprisonment with a ten-year period of parole ineligibility to run consecutive to defendant's sentence for a parole violation. The judgment of conviction was entered on September 24, 1986.

Defendant appealed. On December 11, 1987, by way of an unpublished opinion, we vacated the conviction for attempted aggravated sexual assault, but affirmed the other convictions, and remanded for the entry of a modified judgment and for re-sentencing. Docket No. A-1009-86T4. We later denied defendant's motion for reconsideration. The Supreme Court denied defendant's petition for certification, 110 N.J. 308 (1988), and his subsequent motion for reconsideration.

Defendant was re-sentenced on April 8, 1988. After finding that the aggravating factors outweighed any mitigating factors, the trial judge sentenced defendant to the same term originally imposed.

Defendant thereafter petitioned the United States District Court for the District of New Jersey for habeas corpus relief. That petition was denied, and defendant unsuccessfully appealed to the United States Court of Appeals for the Third Circuit. His petition for a writ of certiorari was denied by the Supreme Court of the United States on October 7, 1991. A later petition for rehearing was denied by the Supreme Court.

Defendant filed a notice of appeal in this court, seeking our review of the judgment of conviction entered on April 8, 1988. On January 16, 1991, in an unpublished opinion, we concluded that the trial judge mistakenly considered certain aggravating factors that were not applicable to the circumstances and remanded for re-sentencing. Docket No. A-0171-88T4. On August 13, 1991, the trial judge again imposed a twenty-year term of imprisonment with a ten-year period of parole ineligibility.

Defendant filed a motion for post-conviction relief on August 3, 1991. That motion was denied on November 21, 1991.

Defendant appealed the judgment of conviction entered on August 13, 1991. The matter was placed on the excessive sentencing calendar and, by order entered on March 23, 1992, we affirmed the judgment of conviction. Docket No. A-455-91T4. Defendant's petition for certification was denied. 130 N.J. 393 (1992).

Defendant thereafter filed another petition for a writ of habeas corpus in the United States District Court for the District of New Jersey. That application was denied on December 20, 1994. Defendant's appeal to the United States Court of Appeals for the Third Circuit was unsuccessful, and the United States Supreme Court denied defendant's two petitions for a writ of certiorari.

Defendant filed another motion for post-conviction relief in the trial court on January 5, 1996. That motion was denied on August 16, 1996. Defendant appealed and, during the pendency of that appeal, filed yet another petition for post-conviction relief, which was denied on April 9, 1998. Defendant appealed that order as well. These two appeals were consolidated and, on October 11, 2000, in an unpublished opinion, we affirmed. Docket Nos. A-5912-97T4 and A-6317-97T4. In our decision, we concluded, among other things, that defendant's application for post-conviction relief was filed well beyond the five-year limitation period contained in R. 3:22-12 and that there was no basis for relaxing that time-bar.

On August 13, 2002, defendant filed his fourth application for post-conviction relief. On May 13, 2003, defendant moved for an order declaring N.J.S.A. 2C:14-2(b) unconstitutional.

For reasons expressed in a written decision dated April 2, 2004, Judge Francis P. DeStefano denied defendant's petition for post-conviction relief. The order memorializing that decision was entered on April 19, 2004. In his written decision, Judge DeStefano thoroughly reviewed the procedural history of defendant's many prior appeals and applications. He also carefully outlined the issues raised by defendant and, in denying the petition for post-conviction relief, stated:

All of the issues raised today by defendant, with the exception of his motion to compel a statement of reasons for the prosecutor's refusal in joining in his sentence reduction motion, have been raised several times in prior appeals by defendant. As the Appellate Division stated in its decision on October 11, 2000, "although different phraseology is now employed, the substance of the attack has been previously considered and rejected." This argument has been raised by defendant in many forms and has already been rejected by both the trial court and the Appellate Division on appeal.

As a result, the judge determined that defendant's contentions had either been previously adjudicated or were time-barred. In an order entered on April 2, 2004, Judge DeStefano denied defendant's motion to have N.J.S.A. 2C:14-2(b) declared unconstitutional.

Defendant appealed both the denial of his fourth petition for post-conviction relief, which was assigned Docket No. A-5791-03T4, and the order denying his motion regarding N.J.S.A. 2C:14-2(b), which was assigned Docket No. A-5912-03T4. We calendared these appeals back-to-back and now dispose of all the issues raised in both appeals in this single opinion.

In the brief filed by defense counsel in Docket No. A-5791-03T4, defendant raised the following issues:

I. THE APPELLANT'S CLAIMS CONTAINED IN HIS MOTION FOR POST CONVICTION RELIEF ARE NOT BARRED UNDER RULE 3:22-12.

II. THE APPELLANT'S CONVICTION FOR A SECOND DEGREE ATTEMPTED SEXUAL ASSAULT IS INVALID AND SHOULD BE VACATED AND DISMISSED.

In the brief filed by counsel for defendant in Docket No. A-5912-03T4, defendant raised the following issues:

I. THE APPELLANT'S ISSUE REGARDING HIS WAIVER OF COUNSEL IN HIS ORIGINAL APPEAL IS NOT BARRED UNDER RULE 3:22-4, 3:22- 5 OR 3:22-12.

II. THE TRIAL COURT COMMITTED ERROR IN DENYING THE POST CONVICTION RELIEF MOTION AS TO APPELLANT'S CLAIM HIS ORIGINAL APPLICATION TO PROCEED WITH HIS APPEAL PRO SE WAS CONSTITUTIONALLY DEFECTIVE AND VIOLATED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

Defendant also filed a pro se brief in connection with both appeals. By way of that brief, defendant raised the following issues:

I. THE DENIAL OF DUE PROCESS AND FUNDAMENTAL FAIRNESS ISSUES PRESENTED BY DEFENDANT'S PETITION WERE NOT PREVIOUSLY ADJUDICATED ON THE MERITS, NOR BY THE PRIOR FLAWED DECISION OF THE APPELLATE DIVISION ON DIRECT APPEAL DURING WHICH DEFENDANT WAS DENIED COUNSEL, AND THEREFORE THE PCR [JUDGE] ERRED IN FINDING THEM BARRED.

II. THE DEFENDANT HAS BEEN DENIED DUE PROCESS BECAUSE HE WAS NEVER IN FACT INDICTED FOR THE ACTS AND THE STATUTORY ELEMENTS FOR WHICH HE STANDS CONVICTED NOT WITHSTANDING THE CONSTITUTION OF NEW JERSEY, ART. I, PAR. 8 PROVIDES THAT "NO PERSON SHALL BE HELD TO ANSWER FOR A CRIMINAL OFFENSE, UNLESS ON THE . . . INDICTMENT OF A GRAND JURY". (U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. I, PARA. VIII & X).

III. THE PCR JUDGE ERRED BY DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SEEKING APPLICATION OF THE SUPREME COURT DECISION IN [Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)], SINCE THE JUDGE, NOT A GRAND JURY, DETERMINED DEFENDANT ACTED WITH A HIGHER DEGREE OF MENTAL CULPABILITY NOT CHARGED IN COUNT III, WHERE THE MENTAL CULPABILITY OF THE OFFENSE PROVEN CARRIES A LESSER PENALTY, RENDERS THE SENTENCE ILLEGAL. R. 3:22-12.

IV. THE CONVICTIONS AGAINST THE DEFENDANT ARE BASED UPON THE UN-INDICTED ACT OF ENTRY WITH PERMISSION AND PHRASE "SUBSTANTIAL STEP" AND THUS SO TOTALLY DEVOID OF EVIDENTIARY SUPPORT AS TO RENDER THE CONVICTIONS UNCONSTITUTIONAL UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.

V. TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN FAILING TO OBJECT TO JURY INSTRUCTIONS THAT CONSTRUCTIVELY AMENDED THE INDICTMENT TO ALLOW THE JURY TO CONVICT DEFENDANT FOR ACTS AND KEY ELEMENTS OF "SUBSTANTIAL STEP" NOT CHARGED IN THE INDICTMENT; AND FAILURE TO OBJECT TO THE STATE'S REQUEST TO CHARGE ON ESSENTIAL ELEMENTS NOT CONTAINED IN THE INDICTMENT, THUS DENYING DEFENDANT'S RIGHT TO INDICTMENT AND A FAIR TRIAL.

A) COUNSEL FAILED TO OBJECT TO THE JURY INSTRUCTIONS THAT ALLOWED THE JURY TO CONVICT DEFENDANT FOR ACTS AND ESSENTIAL ELEMENTS NOT ALLEGED IN THE INDICTMENT IN VIOLATION OF BOTH PRONGS OF THE STRICKLAND-CRONIC-FRITZ TESTS.

B) COUNSEL FAILED TO OBJECT TO THE STATE'S REQUEST TO CHARGE THE JURY THAT ADDED ACTS AND A MEANS OF COMMITTING THE OFFENSE NOT BEFORE THE JURY NOR DEFENDANT UNTIL THE INSTRUCTIONS WERE DELIVERED, VIOLATED STRICKLAND-FRITZ TESTS.

VI. MISAPPLICATION OF THE SEXUAL CONTACT STATUTE[,] N.J.S.A. 2C:14-2b, AS-APPLIED TO DEFENDANT WAS AN UNCONSTITUTIONAL INFLICTION OF CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS.

VII. THE STATE HAS FAILED TO MEET ITS BURDEN OF PROVING THAT DEFENDANT MADE A VALID WAIVER OF COUNSEL DURING THE DIRECT APPEAL WITHIN THE MEANING OF [Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975) and State v. Coon, 314 N.J. Super. 426 (App. Div.), certif. denied, 157 N.J. 543 (1998)]; THUS, THIS COURT SHOULD CONSIDER THE ISSUES PRESENTED IN THIS APPEAL AS IF THEY WERE BEING PRESENTED IN A DIRECT APPEAL AS IN [State v. Guzman, 313 N.J. Super. 363, 372 (App. Div. 1998)] AND U.S. CONST. AMEND. VI. XIV; N.J. CONST.(1947) ART.I, PAR. 10).

We agree with Judge DeStefano that nearly all the issues raised in defendant's fourth petition for post-conviction relief were either previously adjudicated or time-barred, and, thus, barred by R. 3:22-5 and R. 3:22-12. We affirm substantially for the reasons set forth in his written decision. In addition, after carefully reviewing the record and the arguments raised in these appeals, we conclude that the remaining issues posed by defendant are without sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(2).

 
Affirmed.

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984); State v. Fritz, 105 N.J. 42 (1987).

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A-5791-03T4

January 30, 2006