STATE OF NEW JERSEY v. KEVIN MONEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1644-08T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN MONEY, a/k/a NAJEE M.

MUHAMMAD,

Defendant-Appellant.

_____________________________________

March 30, 2011

Submitted January 25, 2011 - Decided

Before Judges Graves and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 94-01-0142.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief).

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

PER CURIAM

Defendant Kevin Money appeals the dismissal of his petition for post-conviction relief. We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

In 1994, Money was indicted for a variety of drug and weapons offenses, as well as first-degree murder. He accepted a plea offer from the State, under which he agreed to plead guilty to the first-degree crime of being the leader of a narcotics trafficking network, contrary to N.J.S.A. 2C:35-3, and the State agreed to recommend a custodial sentence of fifty years, with a fifteen-year period of parole ineligibility.1 The remaining charges, including a second indictment charging additional drug offenses, were to be dismissed at the time of sentencing.

Money entered the guilty plea on May 6, 1996. He represented to the plea judge that he was acting voluntarily, that he had consulted with his attorney about his rights and the plea, and that he understood the plea agreement. He set forth a factual basis for the plea in which he admitted that, from December 1990 to October 1992, he was the leader of an organization known as "the Sons of Malcolm X" and that the purpose of the organization was to "[d]istribute drugs to the drug sets and sell drugs." As part of his involvement, he admitted that he got "people to organize various sets" and "work for [his] group selling drugs." He further admitted that he "controlled all of them."

On June 14, 1996, Money appeared for sentencing. The judge found no mitigating factors under N.J.S.A. 2C:44-1(b). He found aggravating factors three, five, six, and nine. N.J.S.A. 2C:44-1(a)(3), (5), (6), and (9). He accepted the plea and imposed the negotiated sentence. There was no appeal following the sentence.

At the time of the plea and sentencing, Money was represented by David Assad, Jr., who had been admitted to the Bar in 1983 and was disbarred in 2001. On September 20, 1993, Assad was suspended from practice for failure to pay his annual assessment for the Fund for Client Protection. He was reinstated on January 18, 1994. Money contends that Assad was representing him during some or all of that period. However, Assad was not under suspension at the time of the plea in May 1996 and sentencing in June 1996. At the plea hearing, Assad told the judge that the "plea agreement [was] a culmination of about six months of intensive negotiations with the Prosecutor's Office." Assad was not under suspension during that six-month period.

Assad was suspended again for the same reason on September 30, 1996, and reinstated on February 13, 1997. By the time of that suspension, Money's time to appeal had expired. R. 2:4-1(a). There was a third period of suspension for non-payment in 1997 and 1998. Assad was charged with misappropriation of client funds and disbarred by consent on May 10, 2001.

On February 21, 2008, Money filed a pro se application to withdraw his guilty plea. He relied on Assad's temporary suspension during the period of representation as grounds for relief, as well as an explanation of the late filing of his application.2 He also claimed that Assad had not advised him of his right to appeal and that there had been no factual basis for the plea. Money's application was treated as a PCR petition, and counsel was appointed to represent him.

Although an evidentiary hearing had originally been scheduled, the PCR judge cancelled the hearing and denied the petition on the papers. He issued a detailed written opinion, in which he concluded that the petition was time-barred pursuant to Rule 3:22-12, and that Money had not established excusable neglect to warrant relaxation of the time limitations. The judge also concluded that the original plea was entered into knowingly and voluntarily, and that there was a sufficient factual basis for the plea. The order of dismissal was entered on July 21, 2008. This appeal followed.

II.

On appeal, Money raises the following issues:

The Court should reverse the denial of defendant's petition for post-conviction relief and remand this matter for an evidentiary hearing on defendant's claims.

1. Defendant's petition is not barred.

2. Defendant established at least a prima facie case of ineffective assistance of counsel.

3. At the very least, the trial court erred in rejecting defendant's ineffective assistance claim without conducting an evidentiary hearing.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for PCR:

(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.

When petitioning for such relief, the defendant must establish, by a preponderance of the credible evidence, that he is entitled to the requested relief. Preciose, supra, 129 N.J. at 459. To sustain that burden, the defendant must allege and articulate specific facts, which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a); Preciose, supra, 129 N.J. at 459-60. The mere raising of such a claim, however, does not entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 459-64. In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Id. at 462-63.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Under the first prong of the Strickland test, a defendant must show that defense counsel's performance was deficient. Ibid. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The State adopted the Strickland precepts and its tests in State v. Fritz, 105 N.J. 42, 58 (1987).

There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 695.

Adequate assistance of counsel must be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 56-58; see also State v. Jack, 144 N.J. 240, 248 (1996). Therefore, judicial scrutiny requires great deference because the standard does not demand "the best of attorneys," but rather requires attorneys be "[not] so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

Rule 3:22-12 provides a time limit for the first filing of a PCR petition. It specifies that "no petition shall be filed pursuant to this rule more than [five] years after the date of entry . . . 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." R. 3:22-12(a)(1). Lack of "sophistication in the law does not satisfy the exceptional circumstances required" to constitute excusable neglect. State v. Murray, 162 N.J. 240, 246 (2000).

The five-year time bar established by Rule 3:22-12(a)(1) is relaxable only in "exceptional circumstances." State v. Afanador, 151 N.J. 41, 52 (1997). In determining whether or not 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.'" Ibid. Without "compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay." Ibid.

III.

Having reviewed the arguments raised by Money in light of the applicable law, as set forth above, and the record before us, we find them to be without merit and not warranting extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm essentially for the reasons stated by Judge Irvin J. Snyder in his written decision. We add only the following.

It is clear from the record that Assad was not under suspension at the time of the plea or the sentencing, or during the forty-five day period following the sentencing, during which a notice of appeal would have been timely. Assad ceased to be Money's attorney when the time to appeal expired. R. 1:11-3. As Judge Snyder found, Money could have raised claims with respect to deficiencies in Assad's representation within the time required by R. 3:22-12(a)(1), five years, without knowing about his temporary suspensions. Consequently, we agree that the petition was significantly out of time with no showing of exceptional circumstances.

Money has also failed to establish the requirements applicable to a motion to withdraw a guilty plea. State v. Slater, 198 N.J. 145, 157-58 (2009). A review of the record reveals no colorable claim of innocence. Money's reasons for seeking to withdraw the plea after so many years are unpersuasive. In addition, the plea was a result of a favorable plea bargain, which included a ten-year reduction in the period of parole ineligibility. The State would be significantly prejudiced were the plea to be withdrawn. With respect to the factual basis, the record reflects that the plea judge developed a sufficient factual basis at the plea hearing.

A

1 Had Money not pled guilty, he would have faced a parole-ineligibility period of twenty-five years. N.J.S.A. 2C:35-3 and -12.

2 Money apparently learned about the disbarment in 2006 and the suspensions in 2008, both through correspondence from the Fund for Client Protection.