STATE OF NEW JERSEY v. JASON HARRELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JASON HARRELL,

Defendant-Appellant.

___________________________________

December 9, 2013

 

Submitted November 18, 2013 Decided

 

Before Judges Parrillo and Harris.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-12-01552.

 

Jason Harrell, appellant pro se.

 

AndrewC. Carey,Acting MiddlesexCounty Prosecutor,attorney forrespondent (BrianD. Gillet,Special DeputyAttorney General,Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jason Harrell appeals from the Law Division's June 8, 2012 order dismissing Harrell's second application for post-conviction relief (PCR) because of the procedural bar found in Rule 3:22-4(b). We reverse and remand for further proceedings.

I.

Harrell was convicted by a jury of aggravated manslaughter, N.J.S.A. 2C:11-4(a), and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). On July 30, 2004, after merger, Harrell was sentenced to a term of thirty years imprisonment.

We affirmed the conviction, but remanded for reconsideration of the thirty-year term in light of State v. Natale, 184 N.J. 458 (2005), which was decided after the original sentencing. State v. Harrell (Harrell I), A-1090-04T4 (App. Div. Nov. 2, 2006). The Supreme Court denied certification. State v. Harrell, 192 N.J. 480 (2007). On remand, the Law Division imposed the same sentence.

In November 2007, before the resentencing, Harrell filed a pro se first application for PCR, claiming ineffective assistance of trial counsel. Designated PCR counsel submitted a brief on Harrell's behalf, and argued several species of defense counsel's deficiencies. The same judge who presided at Harrell's trial denied PCR on July 17, 2008, and later denied a pro se motion for reconsideration.

We affirmed both determinations.1 State v. Harrell (Harrell II), A-0340-08 (App. Div. Nov. 15, 2010) (Harrell II). The Supreme Court denied certification. State v. Harrell, 205 N.J. 318 (2011).

Harrell filed the present pro se application for PCR on or about October 14, 2011. In that application, Harrell sought the appointment of counsel and an evidentiary hearing; he claimed, again, that trial and PCR counsel were ineffective; and he further contended that PCR appellate counsel was also ineffective. In support of the latter contention, Harrell obliquely stated, "the defendant was denied his right to effective assistance of . . . PCR appellate counsel who failed to fulfill his obligation to represent the defendant . . . by failing to properly present the defendant's claim of ineffective assistance of trial counsel."

In a supplemental pro se brief to the Law Division, Harrell refined his argument by outlining the primary defects in PCR appellate counsel's performance:

On appeal, PCR Appellate Counsel only raised two points, "[t]his matter must be remanded for a new PCR hearing and for reassignment of counsel because defendant was denied effective assistance of PCR Counsel," and "[t]his matter must be remanded for a new PCR hearing because PCR counsel did not advance the legal issues raised in defendant's PCR Petition."

 

The Appellate Division therefore was never presented with the issues that were raised below. Moreover PCR Appellate Counsel, confused the court, and failed to properly present the defendant's claim of ineffective assistance of PCR counsel, which caused the defendant's argument to fail, so in this instance he too was ineffective.

 

On June 8, 2012, without an evidentiary hearing, the PCR judge (not the trial and first PCR judge) denied all relief. In a letter opinion, the PCR judge recognized that this was Harrell's "second petition for post-conviction relief, which makes various claims regarding the effectiveness of [Harrell's] trial, appellate, and PCR counsel." The judge found that all of these claims were "procedurally barred under R[ule] 3:22-4(b)," and explained why the application was untimely under Rule 3:22-12(a)(2), as well as disqualified by dint of Rule 3:22-4(b)(2). This appeal followed.

II.

On appeal, Harrell presents the following issues for our consideration:

POINT I: THIS COURT MUST CLARIFY COURT RULE 3:22-12(a)(2)(C) DUE TO THE VAGUE AND UNCLEAR LANGUAGE AS TO WHEN THE ONE YEAR LIMITATION TO FILE A SECOND OR SUBSEQUENT PETITION BEGINS AND IF IT IS TOLLED DURING AN APPEAL.

 

POINT II: THIS COURT MUST EXTEND THE REQUIREMENTS OF COURT RULE 3:22-6(d), RUE AND WEBSTER TO APPLY TO "APPELLATE PCR COUNSEL" OR MODIFY AND/OR ADD LANGUAGE TO REQUIRE "APPELLATE PCR COUNSEL" TO APPROPRIATELY RAISE ALL ISSUES PRESENTED IN THE COURT BELOW FOR EXHAUSTION PURPOSES AND THEREFORE THIS MATTER MUST BE REMANDED.

 

POINT III: THE PCR COURT ERRED IN ITS DETERMINATION THAT THE DEFENDANT DID NOT SATISFY THE REQUIREMENTS OF [RULE] 3:22-4(b).

 

(A) DEFENDANT'S PETITION WAS TIMELY UNDER COURT RULE 3:22-12(a)(2)(C) AND THE PCR COURT ERRED IN DETERMINING THE DEFENDANT'S PETITION WAS UNTIMELY.

 

(B) THE PCR COURT MISINTERPRETED R[ULE] 3:22-4(b(2) AND ERRED IN ITS DETERMINATION THAT DEFENDANT HAD TO SHOW WHAT IS REQUIRED UNDER COURT R[ULE] 3:22-4(b)(2)(A)&(B), IN ADDITION TO (C), WHICH THE COURT ACKNOWLEDGED WAS MET BY DEFENDANT, IN ORDER FOR DEFENDANT TO SATISFY R[ULE] 3:22-4(b)(2).

 

POINT IV: PCR COURT ERRED IN NOT ASSIGNING COUNSEL TO DEFENDANT.

 

POINT V: THIS MATTER SHOULD BE REMANDED SO THE DEFENDANT CAN PROPERLY BRIEF AND PRESENT HIS CLAIMS TO THE PCR COURT.

 

We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 421 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 964, 162 L. Ed. 2d 898 (2005). The same scope of review applies to mixed questions of law and fact. Ibid. Following our review, we conclude that Harrell's Point III is both meritorious and fully dispositive of the pertinent issues on appeal. Accordingly, we need not address Harrell's remaining contentions.

Successive applications for PCR are, in the first instance, governed by Rule 3:22-4(b), which became effective on February 1, 2010, nine months before our affirmance of the denial of Harrell's first application for PCR. The Rule, in pertinent part, provides the following:

(b) Second or Subsequent Petition for Post-Conviction Relief. A second or subsequent petition for post-conviction relief shall be dismissed unless:

 

(1) it is timely under R. 3:22-12(a)(2); and

 

(2) it alleges on its face either:

 

(A) that the petition relies on a new rule of constitutional law, made retroactive to defendant's petition by the United States Supreme Court or the Supreme Court of New Jersey, that was unavailable during the pendency of any prior proceedings; or

 

(B) that the factual predicate for the relief sought could not have been discovered earlier through the exercise of reasonable diligence, and the facts underlying the ground for relief, if proven and viewed in light of the evidence as a whole, would raise a reasonable probability that the relief sought would be granted; or

 

(C) that the petition alleges a prima facie case of ineffective assistance of counsel that represented the defendant on the first or subsequent application for post-conviction relief.

 

Rule 3:22-12(a)(2) also governs successive applications for PCR. It provides the following one-year limitation:

(2) Second or Subsequent Petition for Post-Conviction Relief. Notwithstanding any other provision in this rule, no second or subsequent petition shall be filed more than one year after the latest of:

 

(A) the date on which the constitutional right asserted was initially recognized by the United States Supreme Court or the Supreme Court of New Jersey, if that right has been newly recognized by either of those Courts and made retroactive by either of those Courts to cases on collateral review; or

 

(B) the date on which the factual predicate for the relief sought was discovered, if that factual predicate could not have been discovered earlier through the exercise of reasonable diligence; or

 

(C) the date of the denial of the first or subsequent application for post-conviction relief where ineffective assistance of counsel that represented the defendant on the first or subsequent application for post-conviction relief is being alleged.

 

Rule 3:22-12(a)(2) bars second petitions for PCR that are filed more than one year after the latest of three events. Unquestionably, the present application for PCR was filed more than one year after "the date of the denial of the first . . . application for post-conviction relief where ineffective assistance of counsel that represented the defendant on the first . . . application for post-conviction relief is being alleged." R. 3:22-12(a)(2)(C).

However, the earliest that Harrell's claims of ineffective assistance of PCR appellate counsel became known was on November 15, 2010, when we affirmed the denial of Harrell's first application for PCR. Harrell II, supra, slip op. at 1. Thus, because that was a later-qualifying event under Rule 3:22-12(a)(2)(B) ("the date on which the factual predicate for the relief sought was discovered, if that factual predicate could not have been discovered earlier through the exercise of reasonable diligence"), we treat November 15, 2010 as the accrual date for filing a second application for PCR. Harrell's second application was filed on October 14, 2011; thus, it was "timely under R. 3:22-12(a)(2)." R. 3:22-4(b)(1).

We next consider whether Harrell also satisfied Rule 3:22-4(b)(2). Again, because the gravamen of Harrell's ineffective assistance of counsel claim did not exist until November 15, 2010, Rule 3:22-4(b)(2)(B) was satisfied. Harrell's grievance with PCR appellate counsel lies in that attorney's alleged failure to properly argue trial counsel's ineffectiveness. Without reaching the merits here, we note that such omission is both unusual and out of the mainstream of PCR appeals that are regularly reviewed by this court. Routinely, on first applications for PCR, defendants argue ineffective assistance of trial counsel, and if rebuffed in the Law Division, reprise those claims in our court. Inexplicably, PCR appellate counsel never brought trial counsel's alleged deficiencies to our attention in Harrell II.2

Harrell's grievances with PCR appellate counsel deserve to be reviewed in the Law Division. State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007) (citing State v. Calloway, 275 N.J. Super. 13, 15 (App. Div. 1994)). Furthermore, Harrell's second application for PCR, on its face, "alleges a prima facie case of ineffective assistance of counsel that represented the defendant on the first . . . application for post-conviction relief." R. 3:22-4(b)(2)(C). There was no basis to dismiss Harrell's second application for PCR on the rationale stated by the Law Division that Harrell's "claims are procedurally barred under R[ule] 3:22-4(b)."

In reversing and remanding for further proceedings, we in no fashion presage the result of Harrell's claims. We leave the ultimate manner of disposition to the Law Division, and we are fully confident that our State's well-developed post-conviction relief jurisprudence will be applied. Because of our resolution of the Rule 3:22-4 issues, the Law Division on remand shall promptly reconsider Harrell's request for the assignment of counsel under Rule 3:22-6(b) anew.

Reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.

1 In that appeal, Harrell confined his arguments, which we rejected, to the alleged ineffectiveness of PCR not trial counsel. The first time that ineffectiveness of PCR counsel was raised was in Harrell's pro se motion for reconsideration.

2 PCR appellate counsel did, in fact, present arguments related to the ineffectiveness of PCR counsel. We rejected those claims in Harrell II, and they may not be reprised here, except to the extent that such arguments (or the lack thereof) are evidence of the supposed ineffectiveness of PCR appellate counsel.