STATE OF NEW JERSEY v. FRANK MILLER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3091-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANK MILLER,

Defendant-Appellant.

________________________________

April 1, 2011

Submitted: March 2, 2011 - Decided:

Before Judges Fisher and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. M-320-72.

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

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Thirty-seven years after his conviction for murder, for which he was sentenced to a term of life imprisonment that he is still serving, defendant appeals from the denial of his petition for post-conviction relief (PCR). Defendant argues that excusable neglect exists to file out of time because he did not know about the existence of a PCR petition. He contended that his trial counsel was ineffective because he failed to consider a diminished capacity defense and miscalculated jail credits. We affirm.

While on parole from a 1969 conviction for carnal abuse, defendant murdered the victim by slashing her throat, severing her windpipe and jugular vein. The victim was found nude face down in a stream with cutting wounds in her pelvic area, vagina, and right breast. Defendant was given his Miranda1 warnings and confessed to the crime. The confession was the primary evidence of guilt.

On direct appeal we concluded that the confession was not made voluntarily and reversed in an unreported decision. State v. Miller, No. A-1275-73 (App. Div. October 27, 1975). The Supreme Court reversed and reinstated defendant's life sentence. State v. Miller, 76 N.J. 392 (1978).

Defendant thereafter unsuccessfully sought a writ of habeas corpus in the federal courts, but the Supreme Court of the United States remanded for a determination of the voluntariness of the confession. Miller v. Fenton, 474 U.S. 104, 106 S. Ct. 445, 88 L. Ed. 2d 405 (1985). It was ultimately determined that the manner in which the confession was elicited did not offend the federal constitution. Miller v. Fenton, 796 F.2d 598, 613 (3d Cir.), cert. denied, 479 U.S. 989, 107 S. Ct. 585, 93 L. Ed. 2d 587 (1986).

In 2008, defendant filed his PCR petition, alleging the ineffective assistance of counsel and the improper calculation of jail credits. On September 18, 2009, the PCR judge issued an oral opinion and concluded that defendant failed to establish a prima facie case, did not show excusable neglect, and was given the correct jail credit.

On appeal, the defendant raises the following points:

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. Excusable neglect or exceptional circumstances existed to overcome the time bar.

2. Defendant established a prima facie case of ineffective assistance of counsel that at least warranted an evidentiary hearing.

Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-85, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 691-92 (1984). "[W]hether retained or appointed . . . , [counsel must] ensure that the trial is fair . . . ; [therefore], 'the right to counsel is the right to the effective assistance of counsel.'" Id. at 685-86, 104 S. Ct. at 2062-63, 80 L. Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed. 2d 763, 773 n.14 (1970)). The New Jersey Constitution affords the same right to counsel. N.J. Const. art. I, 10; State v. Fritz, 105 N.J. 42, 58 (1987).

In order to establish a case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the two-pronged test established by Strickland. First, defendant must show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must demonstrate that there exists "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 precepts of Strickland and its tests have been adopted in New Jersey. Fritz, supra, 105 N.J. at 58.

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 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 61, 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).

An evidentiary hearing is required only when the facts viewed in the light most favorable to defendant would entitle a defendant to PCR. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Our Supreme Court has noted that there is a "pragmatic dimension" to this inquiry, explaining:

If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted.

[Ibid. (citations omitted).]

To protect against addressing endless issues in piecemeal fashion, certain procedural safeguards exist. For example, a five-year time limitation is imposed by Rule 3:22-12. No PCR petition, other than to correct an illegal sentence, shall be filed more than five years after "the judgment of conviction that is being challenged." R. 3:22-12(a)(1). Although the five-year limitation is not absolute, this rule must be viewed in light of its dual purposes. State v. DiFrisco, 187 N.J. 156,166 (2006). The first purpose is to "ensure that the passage of time does not prejudice the State's retrial of a defendant[.]" Ibid. The second purpose is to respect the need for achieving finality. Id. at 167 (quoting State v. Mitchell, 126 N.J. 565, 576 (1992)). Moreover, a PCR petition is not a substitute for appeal of a conviction, Rule 3:22-3, and any available ground for relief not made in a prior proceeding is barred if it could have been raised earlier, Rule 3:22-4.

We have carefully considered the arguments made by defendant in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by the judge in his September 18, 2009 oral opinion.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).