STATE OF NEW JERSEY v. COURTNEY CLEMENT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5951-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

COURTNEY CLEMENT,

Defendant-Appellant.

_____________________________

November 20, 2012

 

Submitted October 30, 2012 - Decided

 

Before Judges Reisner and Hoffman.

 

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-09-1816.

 

Courtney Clement, appellant pro se.

 

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Attorney General/Acting Assistant Prosecutor, on the brief).

 

PER CURIAM

Defendant Courtney Clement appeals from a June 18, 2010 order denying her motion for reconsideration of a September 15, 2009 order denying her second petition for post-conviction relief (PCR). We affirm.

I

Defendant was indicted for first-degree murder, after she stabbed Isheika Silas to death with a knife on March 19, 2002. Her murder trial ended when the judge declared a mistrial. Thereafter, defendant pled guilty to aggravated manslaughter and was sentenced on May 20, 2004, to twenty-five years in prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. She moved to withdraw her guilty plea prior to sentencing. Judge Paul F. Chaiet, who had also presided over the previous trial that ended in a mistrial, denied the motion for reasons he stated at length on the record on May 20, 2004.

We affirmed the conviction and sentence on defendant's direct appeal, State v. Clement, No. A-6323-03 (App. Div. Apr. 29, 2005), but the Supreme Court remanded for reconsideration of the sentence pursuant to State v. Natale, 184 N.J. 458 (2005). State v. Clement, 185 N.J. 292 (2005). Judge Chaiet re-imposed the same sentence on remand on November 18, 2005.

On March 15, 2006, defendant filed her first PCR petition, which Judge Chaiet denied for reasons he stated in an oral opinion on February 16, 2007. Defendant appealed, raising the following issues:

I. THE COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF BECAUSE DEFENDANT'S PLEA WAS NOT KNOWING AND VOLUNTARY DUE TO THE TRIAL JUDGE'S IMPROPER COMMENTS DURING THE PLEA COLLOQUY.

 

II. THE COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF BECAUSE DEFENDANT ESTABLISHED THAT HER TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO PROPERLY ADVISE HER DURING PLEA NEGOTIATIONS.

III. THE COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF BECAUSE THE TRIAL JUDGE FAILED TO CONDUCT AN INQUIRY AS TO WHETHER A CONFLICT OF INTEREST EXISTED AT THE TIME DEFENDANT MOVED TO WITHDRAW HER GUILTY PLEA.

 

In our opinion affirming Judge Chaiet's decision denying defendant's first PCR petition, we addressed her appellate issues in some detail, and we found them all to be without merit. State v. Clement, No. A-4829-06 (App. Div. May 15, 2008), certif. denied, 198 N.J. 315 (2009).

Defendant then filed a second PCR petition, dated May 6, 2009. By order dated September 15, 2009, Judge Ira E. Kreizman dismissed that petition because defendant failed to file a brief in support of the petition. On January 21, 2010, defendant moved for reconsideration and also moved, once again, to withdraw her guilty plea. In an oral opinion issued on June 18, 2010, Judge Kreizman denied the motion as untimely, pursuant to Rules 1:7-4(b) and 4:49-2. He also found that defendant's arguments were barred by Rules 3:22-4 and 3:22-5 (issues that were raised or could have been raised on direct appeal or in a prior PCR petition). He further found that none of defendant's arguments would justify allowing her to withdraw her guilty plea.

II

On this appeal, defendant raises the following points for our consideration:

POINT ONE - THE LOWER COURT ABUSED ITS DISCRETION IN DENYING THE MOTION [TO] WITHDRAW [THE] GUILTY PLEA WITHOUT A CAREFUL ANALYSIS OF THE APPLICABLE CRITERIA.

 

POINT TWO - PETITIONER'S GUILTY PLEA SHOULD BE WITHDRAWN FOR THE FOLLOWING REASONS:

 

(1) The New Jersey Supreme Court Decision In State v. Slater Requires That The Court's Decision Denying Ms. Clement's Motion To Withdraw Her Guilty Plea Be Reevaluated.

 

(2) Petitioner's Guilty Plea Was Not Knowingly And Intelligently Entered Because She Had No Understanding Of The Elements Of The Crime To Which She Pleaded Guilty.

 

(3) Petitioner Received Ineffective Assistance From Trial Counsel Nelson Which, Had It Not Occurred, Could Have Resulted In Petitioner's Receiving a 10-Year Sentence Pursuant To A Plea Bargain Earlier In The Prosecution.

 

The only issue properly before us on this appeal is whether Judge Kreizman abused his discretion in denying defendant's motion for reconsideration. See Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). We find no abuse of discretion.

As Judge Kreizman correctly held, a reconsideration motion must be filed within twenty days after the order from which reconsideration is sought. R. 1:7-4; R. 4:49-2. Defendant failed to perfect her May 9, 2009 PCR petition because she did not file a brief in support of the petition. R. 3:22-8. We find no error in Judge Kreizman's September 15, 2009 order dismissing the petition on that basis. Defendant then waited more than four months, until January 21, 2010, to file her reconsideration motion. We find no abuse of Judge Kreizman's discretion in denying the January 2010 motion as untimely.

Moreover, even if we consider defendant's additional PCR contentions, they are without merit. Relying on State v. Slater, 198 N.J. 145 (2009), she argues that she should have been allowed to choose new counsel on her motion to withdraw her guilty plea, because her motion was based on ineffective assistance of the same attorney who represented her in the plea negotiations. She also contends she should have been able to present a defense of passion-provocation manslaughter, and therefore has a colorable claim of "innocence"; she argues that at the time she entered her guilty plea, she did not understand the elements of aggravated manslaughter, the crime to which she pled guilty; her guilty plea was not truly voluntary; and her trial counsel wrongfully advised her not to take the State's initial plea offer of ten years in prison subject to NERA.1

These are all issues that were raised and rejected, or could have been raised, on defendant's direct appeal or in her first PCR petition. Further, these points are all without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We add the following comment. Unlike State v. Hayes, 205 N.J. 522 (2011), on which defendant relies, she did not request an adjournment of her initial motion to withdraw her guilty plea or ask permission to obtain a new attorney to present the motion. During the May 20, 2004 oral argument of the motion, her counsel stated on the record that, "I've discussed the possible conflict with Ms. Clement and she does wish me to continue on as her counsel. Is that correct, Ms. Clement?" Defendant answered, "Yes." Defendant's argument on this point, which we also addressed and rejected in deciding defendant's prior PCR appeal, requires no further discussion here.

Affirmed.

1 Defendant does not cite to any legally competent evidence to support this last claim. See State v. Cummings, 321 N.J Super. 154, 166-71 (App. Div.), certif. denied, 162 N.J. 199 (1999).