STATE OF NEW JERSEY v. ANGELO CHAMPION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0737-05T30737-05T3

STATE OF NEW JERSEY

Plaintiff-Respondent,

v.

ANGELO CHAMPION,

Defendant-Appellant.

_________________________________

 

Submitted January 18, 2007 - Decided March 9, 2007

Before Judges Lefelt and Parrillo.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Hudson County, Indictment No. 1150-10-87.

Miller, Meyerson, Schwartz & Corbo, attorneys for appellant (Gerald D. Miller, on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Nicole D. DePalma, on the brief).

PER CURIAM

Defendant Angelo Champion appeals from the September 6, 2005 order of the Law Division denying his second application for post-conviction relief (PCR), after our remand to determine whether State v. Rue, 175 N.J. 1 (2003) should be applied to this proceeding. We affirm.

By way of background, defendant is serving a life sentence for felony murder, armed robbery and weapons convictions entered on July 22, 1988. We affirmed the judgment of conviction on April 25, 1991 and the Supreme Court denied certification on October 28, 1991. State v. Champion, 127 N.J. 552 (1991).

Defendant filed his first PCR petition on October 6, 1992, alleging, among other claims, ineffective assistance of both trial and appellate counsel. At the hearing on March 3, 1993, in response to direct questioning by the court, PCR counsel stated that she was unable to ascertain anything in either the trial or appellate records that would justify criticism of defendant's prior counsel:

THE COURT: You found nothing you could criticize in the appellate advocacy of Mr. Sparaco on behalf of Mr. Champion?

[PCR COUNSEL]: No, your Honor not at the appellate level nor at the trial level.

THE COURT: Okay.

. . . .

THE COURT: You've been through the record, you've been through it, you can find nothing to criticize.

[PCR COUNSEL]: No, your Honor.

After considering the briefs and arguments of counsel as well as defendant himself, who was permitted to address the court, the judge denied the PCR petition on April 5, 1993. On appeal, defendant reiterated his claim of ineffective assistance of counsel, this time including PCR counsel as well. In a per curiam opinion on February 1, 1995, we affirmed, rejecting all of defendant's claims and concluding:

We have carefully reviewed the record, including those segments of the trial court's jury instructions set forth in some detail in defendant's pro se post-conviction relief memoranda, and, in light of applicable law, we find all defendant's contentions clearly without merit. R. 2:11-3(e)(2).

Specifically, as to defendant's claim of ineffective assistance of PCR counsel, we concluded:

defendant had "adequate legal assistance." [Counsel] appeared at the post-conviction relief hearing. She consulted with defendant and represented she had reviewed the trial record before she concluded defendant's contentions had been earlier raised on appeal. Specifically, [counsel] represented to the court she had reviewed the trial transcripts, the briefs filed on appeal by counsel and defendant, pro se, our decision affirming his convictions and sentence, and defendant's pro se petition together with the two lengthy memoranda defendant filed in support of the post-conviction relief application.

We are satisfied that defendant "received the benefit of assigned counsel's attention to the case." State v. Clark, 260 N.J. Super. 559, 561 (App. Div. 1992). The situation is different from that in Clark where defendant appeared unrepresented on his application for post-conviction relief without having had any communication with counsel about the case. Moreover, defendant fails to point out to us how the result would have been altered had [counsel] pursued a prior investigation, met earlier to discuss the case with defendant or filed a brief on his behalf. We conclude there was no ineffective assistance of counsel under these circumstances.

Once again, the Supreme Court denied certification. State v. Champion, 141 N.J. 98 (1995).

Thereafter, defendant also petitioned for federal habeas corpus relief, alleging ineffective assistance of counsel among other claims. In an unpublished opinion, the United States District Court for the District of New Jersey denied defendant's petition on the basis that he failed to show that his counsel was deficient.

On October 5, 2001, over six years after his first petition and almost thirteen years after sentencing, defendant filed a second PCR petition, once again alleging ineffective assistance of counsel, among other complaints. The court denied the petition on February 13, 2002, as time-barred under Rule 3:22-12. The judge noted:

The conviction in this matter occurred nearly fourteen (14) years ago. The first conviction was affirmed on direct appeal eleven (11) years ago. The first petition for post-conviction relief was denied ten (10) years ago. The denial of that petition was affirmed seven (7) years ago. The petitioner's application for a writ of habeas corpus was denied in the federal district court of New Jersey seven (7) years ago. It has been seven (7) years since the last proceedings in the matter were concluded. The petitioner has not proffered any explanation justifying the delay or demonstrating that a failure to relax the rule would result in a manifest denial of justice under the law.

The judge also found defendant's claims to be procedurally barred under Rule 3:22-4 and Rule 3:22-5.

Defendant appealed and while the appeal was pending, on December 12, 2002, the Supreme Court decided State v. Rue, 175 N.J. 1 (2002), which required counsel to "advance the claims the client desires to forward in a [PCR] petition and brief and make the best available arguments in support of them." Id. at 19. In light of that decision, and noting that "it appears that defendant's first PCR counsel failed to interview defendant before the PCR argument, write a brief, or advance defendant's PCR positions[]", on April 27, 2004, we remanded the matter for the trial court to determine whether State v. Rue should be applied to this proceeding, and, if so, to reconsider defendant's PCR petition. The State's petition for certification was denied on September 8, 2004. State v. Champion, 181 N.J. 545 (2004).

At the August 10, 2005 remand hearing to determine the retroactivity of Rue, the PCR judge concluded that defendant's second petition was time-barred under Rule 3:22-12 and that Rue was not retroactive because it did not announce a new rule of law. As to the latter, the court reasoned:

But as I look at that case, [State v. Clark, 260 N.J. Super. 559 (App. Div. 1992)] -- Clark does not say that counsel has an affirmative obligation to run to the Court as counsel in Rue did and criticize and dismantle his client's argument. What Clark says is, you know, you can't just be pro forma in doing these PCRs, you've got to meet with the client. You've got to meet with trial counsel. You've got to review those transcripts . . . . [A]nd Rue quotes Clark at Page 15: "At the very least, consultation and close inspection of the trial record are necessary before counsel may make a determination that the petition is wholly without merit."

. . . .

I think Clark was there to impose affirmative obligations on PCR counsel as to what they need to do but did not harmonize as the Rue court did the Rule of Professional Conduct with the rule with regard to PCRs.

. . . .

And what the Supreme Court [in Rue] does after that is to talk about what's the tension between the Rule of Professional Conduct that requires counsel to be candid with the Court and the 40-year-old rule regarding PCR counsel's obligations to give a fair hearing and to give appropriate assistance to the client? They conclude first of all that neither the RPC 3.1 or the rule is entitled to primacy as a matter of law or practice, and what they were going to do is attempt to harmonize them.

. . . .

So basically what I feel that the Court has done in Rue is to remind counsel of what their obligation is under the rule, to harmonize any perceived disharmony [between] RPC 3.1 and the rule regarding PCRs, and to remind counsel in . . . in this unbelievably egregious case of what the lawyer did here that they have an obligation to their client . . . So I don't find it to be a new rule of law.

Accordingly, by order of September 6, 2005, the judge denied defendant's second PCR petition. This appeal follows.

The initial inquiry in any retroactivity analysis is whether a new rule of law has actually been announced. "As the very term implies, retroactivity can arise only where there has been a departure from existing law." State v. Burstein, 85 N.J. 394, 403 (1981). This departure has been alternatively described as a "sudden and generally unanticipated repudiation of a long-standing practice" or "appreciable past," State v. Afanador, 151 N.J. 41, 58 (1997), or a ruling that "breaks new ground or imposes a new obligation on the State[] . . . [or]

. . . was not dictated by precedent existing at the time the defendant's conviction became final." State v. Cummings, 184 N.J. 84, 97 (2005) (emphasis and internal quotation marks omitted).

If as a result of this inquiry, it is determined that a new rule of law has been announced, courts must then engage in an evaluation of three factors in its retroactivity decision:

(1) the purpose of the rule and whether it would be furthered by a retroactive application, (2) the degree of reliance placed on the old rule by those who administered it, and (3) the effect a retroactive application would have on the administration of justice.

[Cummings, supra, 184 N.J. at 97-98 (citations and internal quotation marks omitted).]

Of the factors, the first - the purpose of the new rule - "is often the pivotal consideration." Id. at 97. And while all three factors are relevant, "the retroactivity determination often turns more generally on 'the court's view of what is just and consonant with public policy in the particular situation presented.'" Ibid. (quoting State v. Knight, 145 N.J. 233, 251 (1996)).

Finally, if the balance of these factors weighs in favor of retroactive application, the final step is to determine what retroactivity option is appropriate:

Th[e] [Supreme] Court has [identified] four options in any case in which it must determine the retroactive effect of a new rule of criminal procedure. The Court may decide to apply the new rule purely prospectively, applying it only to cases in which the operative facts arise after the new rule has been announced. Alternatively, the Court may apply the new rule in future cases and in the case in which the rule is announced, but not in any other litigation that is pending or has reached final judgment at the time the new rule is set forth. A third option is to give the new rule "pipeline retroactivity," rendering it applicable in all future cases, the case in which the rule is announced, and any cases still on direct appeal. Finally the Court may give the new rule complete retroactive effect, applying it to all cases, including those in which final judgments have been entered and all other avenues of appeal have been exhausted.

[Id. at 98.]

As with the evaluation of factors in step two, the proper retroactivity option turns on "what is just and consonant with the public policy considerations in the situation presented." Rutherford Educ. Ass'n. v. Bd. of Educ., 99 N.J. 8, 22 (1985).

Applying these principles, we are satisfied that Rue did not announce a new rule of law warranting retroactive application. Rather than creating a sudden change or new obligation, the Rue Court recognized that for "forty years" our jurisprudence had taken a "unique position regarding PCR representation," requiring counsel to "fashion the most effective arguments possible" even if, by doing so, counsel flew "directly in the face of R.P.C. 3.1," which "generally bars lawyers from advancing frivolous claims." Rue, supra, 175 N.J. at 18. Indeed, Rule 3:22-6(d), which establishes a right to counsel on a first PCR petition, sets the standard for court-appointed representation therein, imposing on counsel the obligation of advancing all arguments raised by defendant irrespective of their lack of merit. Pressler, Current N.J. Court Rules, Comment on R. 3:22-6 (2007). Given the plain language of Rule 3:22-6(d) and the gross departure from its mandates evidenced by the facts of Rue, the Court's opinion was neither unexpected nor surprising. Rather, Rue was merely an extension of Rule 3:22-6(d), bringing that rule into harmony with R.P.C. 3.1. In other words, if the rule announced by Rue mandates PCR counsel to "pursue any argument that the defendant seeks to raise," State v. Webster, 187 N.J. 254, 256 (2006), it is hardly a novel proposition but rather a virtual restatement of extant obligations under Rule 3:22-6(d) and its predecessor, which cumulatively have existed for over forty years. Rue, supra, 175 N.J. at 15-18; see also Rule 3:22-6(d) ("Counsel should advance any grounds insisted upon by defendant notwithstanding that counsel deems them without merit.").

Further, we do not view the Rue Court's disapproval of our contrary suggestion in State v. Clark, 260 N.J. Super. 559 (App. Div. 1992), overruled in part, 175 N.J. 1 (2002), as constituting a new rule of law. In Clark, we clarified the minimum responsibilities of PCR counsel, id. at 561-64, which the Supreme Court in Rue cited approvingly, 175 N.J. at 14-15, disapproving only of counsel's obligation to identify issues totally devoid of merit, id. at 15, and making plain that counsel is not at liberty to concede lack of merit. Id. at 16-17. However, the reason for the Court's limited disapproval was because the rejected notion did "not comport with Rule 3:22-6(d)," id. at 15, and the pre-existing obligation to state defendant's arguments without expression of counsel's own opinion of their worthlessness, leaving the ultimate determination for the judge. Id. at 16-17; see also State v. Picciotti, 231 N.J. Super. 111 (App. Div. 1989). Obviously, since the Court's disapproval was grounded in a pre-existing rule, it cannot be said that Rue announced a new rule of law. And finally, unlike State v. Natale, 184 N.J. 458, 492-96 (2005) and Cummings, supra, 184 N.J. at 96-100, wherein the Court specifically addressed retroactivity in the context of the holdings in each of those cases, the Court in Rue never even contemplated retroactive application of its decision.

Even assuming, however, that Rue does announce a new rule of law, the three-factor analysis previously referred to does not compel its retroactive application. It appears that any purpose to be served by applying the Rue rule retroactively pales in comparison to its effect on the administration of justice. As noted, the conduct disapproved of in Rue was conduct already prohibited by Rule 3:22-6(d). Furthermore, prohibiting judges from eliciting statements from counsel that would violate Rule 3:22-6(d) logically and necessarily flows from the pre-existing mandate. On the other hand, retroactive application could excessively burden our criminal justice system by encumbering the courts with otherwise untimely PCR appeals alleging ineffective assistance of counsel under Rue.

Having determined that Rue should not be applied retroactively, we are further satisfied that defendant's PCR petition was properly rejected as untimely. On this score, Rule 3:22-12(a) provides:

A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.

The rule exists both as an acknowledgement that with the passage of time the ability to provide a "fair and accurate reassessment of the critical events" is diminished, and to "respect the need for achieving finality of judgments and to allay the uncertainty associated with an unlimited possibility of relitigation." State v. Mitchell, 126 N.J. 565, 575-76 (1992).

There are three situations in which a defendant may avoid the five-year bar of Rule 3:22-12(a). First, a defendant may challenge an illegal sentence at any time. R. 3:22-12(a). Second, a defendant may demonstrate excusable neglect. Ibid. Finally, if the interests of justice so require, Rule 3:22-12(a) may be relaxed pursuant to Rule 1:1-2, however a defendant must demonstrate "exceptional circumstances." Mitchell, supra, 126 N.J. at 576, 578-80.

Because he claims neither an illegal sentence nor excusable neglect, defendant must demonstrate "exceptional circumstances" to warrant relaxation of the time bar. Several considerations are relevant in this regard:

The 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. As we have made clear, the longer the time-span since the original trial, the more difficult a retrial becomes. Absent compelling, extenuating circumstances, the burden of justifying a petition filed after the five-year period will increase with the extent of the delay. The prejudice to the State's ability to litigate the case after a long delay is also relevant. If the key witnesses are unlikely to be available, evidence has disappeared, or other obstacles are present, allowing the petition for post-conviction relief will unduly prejudice the State's ability to bring its case. These concerns must, however, be balanced against the significance of the petitioner's interest in raising his or her petition. If the petitioner articulates facts that demonstrate a serious question about his or her guilt or the propriety of the sentence imposed and is prepared to provide factual evidence to support it, then sufficient grounds for relaxing the Rule might exist. In other words, a court should determine that the procedural rule as applied is unjust only when a significant liberty interest is at stake and the petitioner has offered something more than a bare allegation that that is so.

[Mitchell, supra, 126 N.J. at 580.]

We are not persuaded that defendant has successfully established that the claimed ineffective assistance of first PCR counsel amounts to a significant liberty interest. Liberty interests are loosely defined as "privileges long recognized

. . . as essential to the orderly pursuit of happiness by free men." Bd. of Regents v. Roth, 408 U.S. 564, 572, 92 S. Ct. 2706-07, 33 L. Ed. 2d 548, 558 (1972) (internal quotation marks omitted). An example of a right that implicates a liberty interest is a defendant's right to counsel during "critical" phases of a criminal prosecution. State v. Sugar, 84 N.J. 1, 15-16 (1980) ("The Sixth Amendment of the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution establish a defendant's right to the assistance of counsel in criminal prosecutions."). However, this liberty interest does not extend to PCR proceedings. Pennsylvania v. Finley, 481 U.S. 551, 555-57, 107 S. Ct. 1990, 1993-94, 95 L. Ed. 2d 539, 545-47 (1987) (announcing that prisoners do not have a constitutional right to counsel when making collateral attacks on their convictions and that the States are not even required to provide post-conviction relief); see also Rue, supra, 175 N.J. at 13, 15-18 (stating that the right to counsel at PCR hearings exists only by court rule).

To be sure, PCR proceedings are "not a pro forma ritual." Id. at 18. Rather, our Supreme Court has emphasized the "critical nature of faithful and robust representation of a defendant at a PCR proceeding." Ibid. Therefore, although the Federal and State Constitutions do not guarantee defendant a liberty interest in PCR proceedings, our case law and court rules place great importance on adequate representation thereat.

Nonetheless, this matter is sufficiently distinct from Rue to militate against finding that a sufficient injustice would occur if Rue were not retroactively applied. Unlike this case, in Rue, defendant's "PCR counsel did not 'advance' Rue's claims but rather advanced the reasons for rejecting them," in violation of the requirements of Rule 3:22-6(d). Rue, supra, 175 N.J. at 12-13. Specifically, rather than advancing any argument in favor of his client at oral argument, Rue's PCR counsel systematically rejected all of his client's claims on a point-by-point basis. Id. at 8-11.

No such offensive behavior occurred here. Rather, at the hearing on defendant's first PCR petition, after being directly questioned by the court, PCR counsel responded that the record revealed no facts that would justify criticism of trial or appellate counsel. Of course, by virtue of Rue, PCR judges are now expressly forbidden from asking these questions. Id. at 19. In any event, as noted, the conduct of defendant's first PCR counsel was far less egregious than that in Rue.

Furthermore, the Rue Court based it's ruling in part upon the fact that the defendant's "PCR contentions remain[ed] . . . wholly unexplored" when ordering "a new PCR hearing at which all of Rue's claims regarding the absent witnesses and any other claims he seeks to raise should be explored and the most effective arguments in favor of them advanced." Ibid.; see also Webster, supra, 187 N.J. at 258 (granting a new PCR hearing where PCR counsel only raised one issue, rather than all the arguments offered in the pro se petition, and "[b]ecause the judge did not comment in any way on defendant's remaining claims, it [was] not clear ... that he, in fact, considered them").

Although defendant's PCR counsel acted in a manner contrary to the holding in Rue, any injustice that may have resulted was of a far lesser degree than the prejudice that plagued Rue and Webster. Here, defendant's first PCR counsel rendered her opinion only when asked directly and specifically by the court. However, she also directed the court to consider defendant's pro se petition and interjected on two occasions so that defendant would have the opportunity to address the court and argue his position. Moreover, the trial judge engaged in a detailed analysis of defendant's claims in their entirety, on the record, and clearly indicated why he was rejecting each of them. Finally, even if the opinion of first PCR counsel did "negatively evaluate" defendant's claim of ineffective assistance of counsel, this action did not rise to the level of "render[ing] aid and support to the state's opposition." Rue, supra, 175 N.J. at 19. Rather, the record reflects that the prosecution presented its own argument on the record, replete with references to a letter written by defendant evaluating his counsel as "adequate" and an affidavit detailing the efforts of appellate counsel alleged to be ineffective. Additionally, in denying defendant's argument of ineffective assistance of counsel, the court only evaluated the merits of the record and evidence before him, never mentioning the opinion of defendant's first PCR counsel.

Because the degree of injustice redressed in Rue and Webster are not present here, because the right to PCR counsel is not a traditional liberty interest, and because defendant's delay was grossly excessive and presumably would greatly prejudice the prosecution, we conclude the PCR judge properly declined to relax the time constraints of Rule 3:22-12(a) and therefore properly denied defendant's second PCR petition.

Affirmed.

 

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A-0737-05T3

March 9, 2007