STATE OF NEW JERSEY v. C.J

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3497-08T43497-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

C.J.,

Defendant-Appellant.

 
 

Submitted March 10, 2010 - Decided

Before Judges Graves, Sabatino, and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 96-01-0065.

Yvonne Smith Segars, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, of counsel and on the brief).

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

This is an appeal from the denial of defendant's application for post-conviction relief (PCR). We affirm.

In 1997, defendant was convicted by a jury of seven counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); seven counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4; and seven counts of fourth-degree child abuse, N.J.S.A. 9:6-3. The criminal events that gave rise to the indictment spanned from 1993 to 1995. The unfortunate victim of defendant's criminality was his own daughter, who was between twelve and fourteen years of age at the pertinent times.

Judge Robert Neustadter sentenced defendant to an aggregate term of incarceration of forty years, including twenty years of parole ineligibility. Defendant initially filed a direct appeal, which resulted in the affirmance of his convictions. State v. C.J., No. A-7516-97 (App. Div. Nov. 10, 1999), certif. denied, 163 N.J. 76 (2000).

On October 24, 2000, defendant filed his first PCR application. Subsequently, defendant sought to withdraw that same application, which Judge Neustadter granted without prejudice at a hearing on May 19, 2001. It was not until several years later, on February 23, 2006, that defendant re-filed an application for PCR. Counsel was assigned to represent defendant at this time, and both PCR counsel and defendant filed briefs; the State responded to both. On April 15, 2008, Judge Neustadter heard arguments on defendant's application. A written opinion was issued by the court on May 19, 2008, which denied all requested relief. Although the judge determined that defendant's application was time barred by the five-year limit contained in Rule 3:22-12(a), he nevertheless fully analyzed defendant's claims, concluding that they merited neither an evidentiary hearing nor any post conviction relief. This appeal ensued.

On appeal, defendant makes the following points:

POINT I. THE LOWER COURT MUST BE REVERSED

SINCE DEFENDANT RECEIVED INEFFECTIVE

ASSISTANCE OF TRIAL COUNSEL.

A. Trial counsel failed to present the testimony of an expert concerning the untruthfulness of the complaining witness.

B. Trial counsel failed to investigate and present essential witnesses at trial.

C. Trial counsel failed to demand a hearing to determine the admissibility of fresh complaint evidence and failed to object to multiple fresh complaint witnesses.

D. Trial counsel failed to object to the admission of evidence that defendant had committed past wrongs.

E. Trial counsel failed to object to the double counting of aggravating factors.

POINT II. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT III. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE STATE WITNESS[ES]' TESTIMONY WAS ADMITTED WITHOUT A FULL HEARING TO TEST THE CREDIBILITY OF THE WITNESSES.

POINT IV. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE THE TRIAL COURT ERRED IN BARRING RELEVANT TESTIMONY.

POINT V. THE PROSECUTOR ENGAGED IN MISCONDUCT, THEREBY DEPRIVING DEFENDANT OF A FAIR TRIAL, AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

POINT VI. THE LOWER COURT DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS RENDERED THE TRIAL UNFAIR AND COUNSEL INEFFECTIVE.

POINT VII. DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL ON THE FIRST PETITION FOR POST-CONVICTION RELIEF, RESULTING IN THE DISMISSAL OF THE PRESENT PETITION AS TIME BARRED. THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

POINT VIII. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.

POINT IX. THE LOWER COURT ORDER MUST BE REVERSED SINCE THE FIVE-YEAR TIME BAR SHOULD NOT BE APPLIED TO BAR DEFENDANT'S CLAIM.

POINT X. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER

R. 3:22-4.

POINT XI. THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

We affirm substantially for the reasons expressed by Judge Neustadter in his thorough written opinion of May 19, 2008. After our independent review of the record, we find that defendant's arguments lack sufficient merit on both substantive and procedural grounds to warrant further explication in a written decision. R. 2:11-3(e)(2). We briefly note only the following.

At the time Judge Neustadter decided defendant's application, Rule 3:22-12(a) provided in pertinent part:

No petition [for post conviction relief] 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.

Defendant seeks to avert this five-year time limit for the filing of his application by arguing that his failure to file within the required time was due to excusable neglect. We, like the PCR judge, are not persuaded by this argument.

Defendant's judgment of conviction is dated June 18, 1998. Accordingly, unless defendant can demonstrate the requisite excusable neglect, he was obligated to file for PCR on or before the five-year expiry: June 17, 2003. As noted, he timely filed the first application for PCR on October 24, 2000, at which time PCR counsel was appointed. However, on May 19, 2001, over two years before Rule 3:22-12(a)'s time bar would come into effect, defendant knew that the application was being withdrawn. When PCR counsel requested permission to withdraw defendant's application, the prosecutor indicated that the State was not waiving its right to object to a re-filing of a PCR as being time barred, if that argument were appropriate.

On May 1, 2004, some eleven months after the five-year deadline had passed, defendant wrote a letter to the Public Defender claiming that he had been previously informed by the "Scheduling Department" that his "court date for the Judge to consider my motion for PCR would be in January or February 2004." However, since it was already "late March," and he had "not yet been called to court," he stated that he would like to exercise his right to "appeal the court's ruling." He also stated in the letter that "[t]he last time I was before the Judge, he told my lawyer to re[-]file the petition. To my knowledge, this has not been done." On August 6, 2004, the Office of the Public Defender sent a reply letter with an enclosed form for filing an application for PCR. Another eighteen months elapsed before defendant re-filed the instant application for PCR, which was finally accomplished on February 23, 2006.

At oral argument before Judge Neustadter, defendant's PCR counsel contended that defendant's previous PCR attorney should have filed a timely application after defendant's first filing had been withdrawn without prejudice. The court ruled that the PCR petition was time barred because it was filed more than five years after the date of conviction. Judge Neustadter wrote that defendant's proffered excuse of "loss of paperwork and transfers within the prison system" was not a valid explanation for neglect because "almost every incarcerated individual" faces such difficulties and yet most manage to file PCR applications in a timely matter; "[a]dditionally, no supporting facts of specific examples of these hardships were presented at oral argument." We concur with the court's conclusions.

When defendant withdrew his first application for PCR that had been filed in 2000, it was "without prejudice," and the State reserved its right to object on limitation of actions grounds. The rubric, "without prejudice," was not a blanket waiver of Rule 3:22-12's generous five-year window of opportunity. Even if it were true that defendant expected his first PCR counsel to re-file the application in a timely fashion, defendant himself passively waited until May 2004 almost three years later to inquire about its status; by that time, the five years had already elapsed and was beyond the critical deadline by more than eleven months. Defendant has utterly failed to explain his indolence and now cannot fairly shift culpability solely upon his first PCR attorney.

"The concept of excusable neglect encompasses more than simply providing a plausible explanation for a failure to file a timely PCR petition." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). To be allowed a waiver of the Rule based upon excusable neglect, defendant must "allege[] facts demonstrating that the delay was due to the defendant's excusable neglect" and, "[i]f the petitioner does not allege sufficient facts, the Rule bars the claim." State v. Mitchell, 126 N.J. 565, 576 (1992). The factors to be considered in determining whether the appellant has asserted a sufficient basis for relaxing or waiving the Rule's five-year time constraint include "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." State v. Afanador, 151 N.J. 41, 52 (1997); Norman, supra, 405 N.J. Super. at 159. "Absent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay." State v. Milne, 178 N.J. 486, 491-92 (2004) (quoting Afanador, supra, 151 N.J. at 52).

Indubitably, something was amiss in the first PCR application that impeded defendant's ability to have his arguments heard at that time. However, defendant himself did nothing to further his case between (1) the date of conviction and the first PCR application's filing (two years, four months); (2) the date of the first PCR application's dismissal and defendant's letter to the Office of the Public Defender (two years, eleven months); and (3) the date of the Office of the Public Defender's reply letter and the date defendant finally filed the present application for PCR (one year, six months). The aggregate period of repose directly attributable to defendant not a third party such as his PCR counsel was more than six years, nine months. Defendant has not proffered a reasonable explanation for this inaction; certainly nothing exists in the record to demonstrate that it was the product of excusable neglect.

Affirmed.

 

We are satisfied that the disposition of this appeal is the same whether the 2009 or 2010 amendments to Rule 3:22-12 are applied or not applied.

As of February 1, 2010, the Rule provides, "no [first petition for post-conviction relief] 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." R. 3:22-12(a)(1).

We cannot readily explain why the letter is typed with a date of May 1, 2004, yet defendant refers to the time as "late March."

To the extent defendant's claims include an argument that he was denied the effective assistance of appellate counsel on his direct appeal, we note that more than six years elapsed between the February 16, 2000 denial of certification and defendant's February 23, 2006 filing of this application. Even factoring out the three months in 2004 during which defendant awaited a response from the Office of the Public Defender, he still was late in raising that particular claim in a PCR application by more than nine months.

(continued)

(continued)

2

A-3497-08T4

RECORD IMPOUNDED

April 8, 2010