STATE OF NEW JERSEY v. EDWARD VICTOR ROBINSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5906-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD VICTOR ROBINSON,

Defendant-Appellant.

________________________________________________________________

 

Submitted May 10, 2010 - Decided

Before Judges Lisa and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 321-78.

Edward Robinson, appellant pro se.

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Roseann A. Finn, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Edward Victor Robinson appeals from a July 2, 2009 order that denied his fourth petition for post-conviction relief (PCR). Defendant claims that his petition should not have been held to be procedurally barred because, at the time of his underlying non vult plea for murder, he was unaware of a potentially exculpatory ballistics report. We reject defendant's argument and affirm.

I.

On November 8, 1978, defendant, then a juvenile, along with co-defendants James Green and Dwayne Michael Thomas, approached the automobile of Richard J. Wood, intending to rob him. Wood drove away from defendant, and defendant, using a stolen gun, shot at Wood's car, striking and killing him. After the incident, defendant informed Detective Raymond Clark of the Camden City Police Department that he had intended to shoot Wood.

Defendant was thereafter charged, under Indictment No. 321-78, with murder, armed murder, unlawful possession of a firearm, conspiracy to commit armed robbery, attempted robbery, and attempted armed robbery. The case was waived up from the juvenile court, and on December 20, 1978, defendant pled not guilty to the charges.

At a March 19, 1979 hearing before the Honorable Neil F. Deighan, defendant retracted his not guilty plea and pled non vult as to murder and guilty as to the remaining offenses listed in the indictment. At the plea hearing, Judge Deighan asked defendant if he was providing his plea voluntarily, if he understood the possible sentences for each offense, and if he was satisfied with the legal representation provided by his attorney. Defendant answered "yes" to each of these questions.

Defendant was subsequently sentenced to a term of life imprisonment on the murder charge.

In the years following his convictions and sentencing, defendant filed a direct appeal of his convictions and sentence, two writs of habeas corpus in United States District Court, and three petitions for PCR. Each of these actions, and their ensuing appeals, were unsuccessful.

On May 13, 2009, defendant filed his fourth petition for PCR, the denial of which is the subject of this appeal. Defendant argued that the ballistics report from the 1978 murder, which defendant had not seen prior to his non vult plea, was exculpatory and that his plea was therefore involuntary and unknowing because it was entered without knowledge of the report's contents. Although defendant had not seen the report at the time of his plea, he admitted he was aware of its existence, noting the report "had been mentioned at [his] Juvenile Waiver Hearing on December 5, 1978 . . . ."

The Honorable Thomas A. Brown, Jr. denied defendant's petition in a letter opinion and corresponding order on July 2, 2009. The judge found that defendant's petition, which was filed approximately thirty years after his judgment of conviction, was time-barred pursuant to Rule 3:22-12(a) and defendant had "failed to plead sufficient justification to relax this limitation." The judge further found that defendant's petition was procedurally barred under Rule 3:22-4 because defendant failed to present any evidence to show that the claims in his petition, which had not been previously raised, could not have reasonably been raised in a prior proceeding. Additionally, Judge Brown found defendant's arguments to be substantively meritless as defendant had repeatedly acknowledged his involvement in the 1978 murder, as opposed to asserting his innocence, and as the ballistics report was merely inconclusive, rather than exculpatory.

On appeal, defendant argues:

SINCE THERE IS NO EVIDENCE THAT APPELLANT HAD ANY REASON TO BELIEVE THAT HIS LAWYER LIED TO HIM AND THE TRIAL COURT REGARDING THE TRUE RESULTS OF THE BALLISTIC REPORT IN LIGHT OF HIS STATEMENT TO THE TRIAL COURT AND DEFENDANT BEING A JUVENILE AT THE TIME HIS PETITION SHOULD NOT HAVE BEEN DEEMED TIME BARRED.

II.

In defendant's only argument on appeal, he contends his petition for PCR should not have been barred because he was unaware of the true results of the ballistics report when he entered his non vult plea to murder and did not learn of the results until April 2009. The State argues that defendant's petition is time-barred pursuant to Rule 3:22-12 because it was filed thirty years after his judgment of conviction and is procedurally barred pursuant to Rule 3:22-4 because its arguments could have been raised in a prior proceeding, but were not.

Post-conviction relief is the New Jersey analogue to federal habeas corpus review. State v. Preciose, 129 N.J. 451, 459 (1992). Petitions for PCR are cognizable when based on any of the following grounds:

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . .

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

[R. 3:22-2.]

Petitions for PCR, however, are subject to certain limitations and procedural bars. For instance, Rule 3:22-12 specifies when a petition for post-conviction relief must be filed, stating "[a] petition to correct an illegal sentence may be filed at any time," but that "[n]o other petition shall be filed . . . more than [five] 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." This five-year limitation "commences from the time of the conviction or the time of the sentencing, whichever the defendant is challenging." State v. Goodwin, 173 N.J. 583, 594 (2002).

Relaxation of the Rule is permissible, but only in "exceptional circumstances." State v. Afanador, 151 N.J. 41, 52 (1997). In determining whether or not these exceptional circumstances exist, courts 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' . . . . Absent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay." Ibid. (internal citations omitted).

Additionally, as PCR is "neither a substitute for direct appeal nor an opportunity to relitigate cases already decided on the merits," Preciose, supra, 129 N.J. at 459 (citation omitted), the procedural bar of Rule 3:22-4 exists to prevent issues that could have been litigated on appeal from being raised in a PCR setting. This Rule states:

Any ground for relief not raised in a prior proceeding under this rule, or in the proceedings resulting in the conviction, . . . or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds (a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.

[R. 3:22-4.]

The exceptions to this Rule shall apply only in "exceptional circumstances." State v. Mitchell, 126 N.J. 565, 587 (1992). The Court has defined when such exceptional circumstances exist, stating:

In defining fundamental injustice, the courts will look to whether the judicial system has provided the defendant with fair proceedings leading to a just outcome. "Fundamental injustice" will be found if the prosecution or the judiciary abused the process under which the defendant was convicted or, absent conscious abuse, if inadvertent errors mistakenly impacted a determination of guilt or otherwise wrought a miscarriage of justice for the individual defendant. The standard goes beyond constitutional infringements to any circumstances deemed "unjust." Although a petitioner would not have to prove that the issue of concern cost him the case, to establish injustice there should at least be some showing that the alleged violation played a role in the determination of guilt. To conclude otherwise would exalt form over substance.

[Ibid. (internal quotations and citations omitted).]

The defendant has the burden of proof in showing that an application of the Rule 3:22-4 bar would result in fundamental injustice. Ibid.

We turn first to Judge Brown's denial of defendant's petition due to its being time-barred under Rule 3:22-12. We agree defendant's petition was filed well outside of the five-year period established by that Rule and that defendant has failed to establish either excusable neglect in his late filing or exceptional circumstances warranting a relaxation of the Rule.

Defendant's only justification for his delay in filing is that he was misinformed as to the results of the ballistics report's findings and did not know the true findings until he received a copy in 2009. However, defendant's presented evidence, as well as his own petition, demonstrate that the delay in filing for PCR was not the result of excusable neglect. Defendant, by his own admission, was aware of the existence of the ballistics report as early as December 5, 1978, when it was mentioned at his juvenile waiver hearing. Further, defendant clearly had access to the report by March 19, 1979, when his defense counsel asserted at the plea hearing that he was in possession of all discovery. While defendant allegedly did not discover the ballistic report's true findings until 2009, he was capable of doing so as early as 1979 and has offered no justification for delaying thirty years in requesting a copy of the report for himself. Therefore, defendant has presented no evidence of excusable neglect, and his out-of-time petition was properly held to be barred under Rule 3:22-12.

Likewise, defendant has presented no evidence of the "exceptional circumstances," Afanador, supra, 151 N.J. at 52, required to warrant a relaxation of this Rule. In addition to failing to provide any cognizable reason for his delay in filing, defendant's claims of injustice, premised on the idea that he pled non vult to murder when the ballistics report was exculpatory, are unfounded. The ballistics report at issue does not support defendant's claim of innocence. The report makes no findings as to the bullet recovered from the victim's body, as this bullet was too "badly mutilated" to be analyzed. Rather the report finds only that two bullets recovered from a vacant house, at which defendant had allegedly been shooting before the murder, were not fired from the murder weapon. This is hardly proof of defendant's innocence, particularly in light of the overwhelming evidence against defendant in 1979. Defendant's own statement to police following the murder, his statements in court regarding his participation in the crime, and statements made by his co-defendants, who both asserted defendant shot the victim, clearly established defendant's guilt. A ballistics report that is inconclusive at best is not an exceptional circumstance warranting relaxation of Rule 3:22-12 where defendant could have discovered the report earlier, the evidence of defendant's guilt was overwhelming, and the State would be prejudiced by being forced to commence a trial twenty-five years out of time.

We turn next to the judge's finding that defendant's petition was procedurally barred pursuant to Rule 3:22-4 as the argument raised in the petition could have been, but was not, raised in a prior proceeding. We agree. The procedural history of this case spans over thirty years and includes numerous filings. Defendant has filed a direct appeal of his conviction and sentence, four petitions for PCR, two writs of habeas corpus in federal court, and appeals of each of these unsuccessful actions. Yet, his argument regarding the ballistics report was not raised until he filed the current petition, his fourth, despite the report being available to defendant at any point from 1979 onward. As we previously discussed, defendant's arguments regarding the exculpatory nature of the ballistics report and defendant's justification for the thirty-year delay do not warrant a relaxation of Rule 3:22-12's time bar. These arguments are equally as meritless in determining whether defendant has satisfied one of the exceptions to Rule 3:22-4, which, like Rule 3:22-12, must only be applied in "exceptional circumstances." Mitchell, supra, 126 N.J. at 587. Thus, Judge Brown's holding that defendant's petition was procedurally barred under Rule 3:22-4, as well as his holding that the petition was time-barred under Rule 3:22-12, were correct. We reject defendant's claims to the contrary.

 
Affirmed.

Defendant's assertion that the report was exculpatory is founded on two concepts: (1) the gun recovered in the investigation was found not to have shot the two bullets recovered from a vacant house at which defendant had apparently been shooting earlier; and (2) the bullets recovered from the vacant house were of a different material than those recovered from the victim's body.

(continued)

(continued)

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A-5906-08T4

May 20, 2010