STATE OF NEW JERSEY v. JEFFREY TODD

NOT FOR PUBLICATION WITHOUT THE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.

JEFFREY TODD,

Defendant-Appellant.

_____________________________________________

May 23, 2014

Before Judges Ashrafi and St. John.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-10-2183.

Joseph E. Krakora, Public Defender, attorney for appellant (David A. Snyder, Designated Counsel, on the brief).

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (John Santoliquido, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jeffrey Todd, a convicted sex offender, appeals from the denial of his petition for post-conviction relief (PCR) as untimely under Rule 3:22-12. For the reasons that follow, we affirm.

I.

On October 1, 2001,1 defendant pled guilty under Atlantic County Indictment No. 00-10-2183 to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count one), first-degree attempt to cause death or serious bodily injury resulting in death, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1) or (2) (count four), and second-degree attempted sexual penetration by means of physical force, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(c)(1) (count five).2

On March 15, 2002, defendant received the following sentence: on count four, a term of fifteen years' incarceration subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; on count one, a consecutive term of ten years' incarceration also subject to NERA; and on count five, a five-year term of incarceration to be served consecutively to count four and concurrently with count one.

On May 2, 2002, the judgment of conviction was amended by the court to delete the language "consecutive to count four" on count five of the sentence. Defendant did not pursue an appeal on either his conviction or sentence.

On December 1, 2006, the court, sua sponte, resentenced defendant: on count one, to a mandatory extended term, N.J.S.A. 2C:43-6.4(e), of twenty-five years' incarceration subject to NERA; on count four, to a concurrent term of fifteen years' incarceration subject to NERA; and on count five, to a concurrent mandatory extended term of twenty years' incarceration subject to NERA. No appeal was taken from the revised sentencing.

On September 26, 2011, over nine years after his conviction, defendant filed pro se a PCR petition and supporting brief. On May 17, 2012, PCR counsel filed a brief in support of defendant's petition for PCR. On June 28, 2012, the petition for PCR was heard before the PCR judge.

Defendant offered two explanations for why the judge should excuse his failure to timely file for PCR. First, he asserted that he is illiterate, suffers from mental health issues and possesses a low intelligence level. Second, defendant claimed that, being unable to prepare a petition on his own, he could not seek assistance while incarcerated because disclosing the nature of his convictions would have placed his life in grave danger from the prison population.

With respect to the substance of the petition, defendant contended that he was entitled to PCR because he received ineffective assistance from trial counsel in accepting the plea agreement. Specifically, defendant argued that counsel should not have allowed him to proffer to the factual basis of the guilty plea, since defendant was purportedly under the influence of drugs on the night of the alleged crimes and did not remember, or had a very limited understanding of, what had transpired.

After reviewing the plea colloquy in detail, including the factual basis, the PCR judge determined that defendant had understood the terms of his plea and entered into it knowingly and voluntarily. The judge noted the absence of "any medical reports whatsoever" in defendant's PCR filings indicating his "actual level of understanding" and further observed that defendant, albeit with some assistance, was ultimately capable of filing a PCR petition himself. The judge discredited defendant's prison-retribution excuse for the untimely filing, finding that the delay "was strictly of and for and about himself." Accordingly, the judge denied the petition on procedural grounds because of defendant's failure to file within the five-year time limit.

The judge nevertheless proceeded to evaluate the merits of the PCR petition. After setting forth the applicable standard for ineffective assistance of counsel, the PCR judge determined that defendant failed to meet his burden of proof, reasoning:

I am not satisfied that [defendant] has met the tests that indicate that his trial counsel was so far outside the realm of a -- what one would expect of reasonable defense or that any decision made by his trial counsel, specifically the one pointed out concerning the DNA test, was anything more than a reasonable strategy decision and that the trial counsel saw the writing on the wall that [defendant] had to make the best deal he could. He did that.

The judge therefore denied the petition without an evidentiary hearing, and filed the order on July 9, 2012. It is from that order that defendant appeals.

On appeal, defendant raises the following issues for our consideration:

POINT ONE

THE COURT COMMITTED ERROR BY DENYING THE PCR PETITION AS BEING TIME BARRED ON DEFENDANT'S FAILURE TO SHOW EXCUSABLE NEGLECT.

POINT TWO

THE PCR COURT COMMITTED ERROR BECAUSE THE COURT SHOULD HAVE GRANTED THE PCR PETITION OUTRIGHT, ALTERNATIVELY THE PCR COURT COMMITTED ERROR BY DENYING THE PCR PETITION WITHOUT HOLDING AN EVIDENTIARY HEARING.

II.

Rule 3:22-12 provides that, with the exception of a petition to correct an illegal sentence, "[n]o . . . petition shall be filed pursuant to this rule more than 5 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." Although defendant asserts that his purported diminished intelligence and mental disabilities constituted "excusable neglect," he has presented no medical records concerning his claimed disabilities, nor has he provided any other evidence that would permit us to conclude that his alleged impairments have substantially interfered with his ability to prosecute this matter. See State v. D.D.M., 140 N.J. 83, 100 (1995).

Defendant also contends that he was unable to obtain assistance, made necessary by his illiteracy, in preparing a PCR petition while imprisoned because disclosing his sexual-assault convictions would have subjected him to physical danger from other inmates. We find that this contention is unaccompanied by any evidential support, a mere "bald assertion," and thus insufficient to warrant relief. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Having considered the cause and extent of the delay in seeking PCR, the prejudice to the State in retrying such a dated case in which one of the victims is now deceased, and the relative unimportance of defendant's claim of injustice, we find inadequate grounds to relax the time limits in this case. See, e.g., State v. Murray, 162 N.J. 240, 249 (2000); State v. McQuaid, 147 N.J. 464, 485 (1997); State v. Mitchell, 126 N.J. 565, 580-81 (1992).

We nonetheless address, as did the PCR judge, defendant's claim that his plea counsel was ineffective. In order to obtain relief based on a claim of ineffective assistance of counsel, defendant must show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, l 04 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). That is, a defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler v. Cooper, 566 U.S. at ___, ___, 132 S. Ct. 1376, 1384, 182 L. Ed. 2d 398, 406-07 (2012).

The United States Supreme Court has extended these principles to a criminal defense attorney's representation of an accused in connection with a plea negotiation. See id. at ___, 132 S. Ct. at 1384-85, 182 L. Ed. 2d at 406-07; Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). Where, as here, a defendant claims that he was denied the effective assistance of counsel regarding a plea, the defendant must show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).

We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or the prejudice prong of the Strickland test. Plea counsel negotiated a beneficial plea bargain for the defendant. Further, even assuming arguendo that counsel's performance was deficient, given defendant's confession, the forensic evidence, and the overwhelming evidence of guilt, defendant failed to demonstrate a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.

Finally, defendant argues that the PCR judge erred by denying the petition without first holding an evidentiary hearing. We disagree. A PCR court should conduct an evidentiary hearing "when there are disputed issues of material facts related to the defendant's entitlement to PCR, particularly when the dispute regards events and conversations that occur off the record or outside the presence of the judge." State v. Porter, 216 N.J. 343, 354 (2013). Here, there was no dispute as to any material fact relative to defendant's petition.

Affirmed.

1 On the same date, defendant also pled guilty, in connection with unrelated Indictment No. 0012-2445, to one count of violating a term of community supervision for life. That conviction is not the subject of this appeal.

2 The aggravated-sexual-assault charge stemmed from defendant's brutal attack, in the early morning hours of June 22, 2000, of an eighty-two-year-old woman. The attempted sexual penetration by means of physical force involved the physical attack by defendant, shortly after the aforementioned assault, of a sixty-two-year-old woman. Defendant confessed to both attacks on June 23, providing the police with specific details regarding the criminal acts. He also admitted that the clothing he was wearing at the time of his arrest was the very same worn during commission of the offenses. Forensic analysis later revealed that defendant's shirt contained blood from his first victim. In addition, shortly after the second attack, the second victim identified defendant as her assailant.