STATE OF NEW JERSEY v. DANIEL P. GALIANO

NOT FOR PUBLICATION WITHOUT THE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.

DANIEL P. GALIANO,

Defendant-Appellant.

________________________________

April 8, 2014

Submitted December 2, 2013 Decided

Before Judges Ashrafi and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 97-06-1078.

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

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals the denial of his petition for post-conviction relief (PCR) from his judgment of conviction in Monmouth County. The PCR court ruled that his PCR petition was untimely and that it failed on the merits. We agree the petition fails on the merits, and thus, we need not reach defendant's arguments regarding timeliness.

I.

Defendant's claim on the merits challenges the handling of his Monmouth offenses under the Interstate Agreement on Detainers (IAD), codified in New Jersey at N.J.S.A. 2A:159A-1 to -15. We briefly summarize the relevant factual and procedural history of the offenses involved in his IAD claim.

On January 16 and 17, 1997, defendant committed two armed robberies in Middlesex County (the Middlesex offenses). They were charged in two separate indictments. On January 29, 1997, defendant committed an armed robbery of a nail salon in Marlboro Township (the Monmouth offenses). Pointing a gun at patrons and employees, defendant took jewelry and money. He threatened to kill someone if more jewelry was not forthcoming.

In February, March, and June 1997, defendant committed three first-degree robberies in New York State. On July 3, 1997, he was sentenced to thirteen years in prison, and confined in the Sing Sing Correctional Facility in Ossining, New York.

On June 19, 1997, a Middlesex grand jury issued two indictments charging defendant. Defendant caused IAD forms to be delivered to the Middlesex County Prosecutor's Office on August 18, 1997, requesting final disposition of the Middlesex offenses and "all untried indictments, informations or complaints on the basis of which detainers have been lodged against me from your state." The only detainer identified was for the Middlesex offenses.

The Middlesex County Prosecutor's Office accepted temporary custody, stated that its agents would take defendant into custody by October 30, 1997, and proposed to bring him to trial "within the time specified in Article III(a)" of the IAD. Defendant states he was transported to Middlesex County Jail on October 30, 1997.

On February 6, 1998, defendant appeared before the Middlesex County judge and waived his right under the IAD to be tried within 180 days to enable trial counsel to resolve the Middlesex and Monmouth offenses simultaneously.

On March 20, 1998, defendant pled guilty in Middlesex County to a count of armed robbery on each of the two indictments. On May 26, 1998, the Middlesex judge sentenced defendant to ten years imprisonment, concurrent with his New York sentences.

Meanwhile, on June 4, 1997, a Monmouth County grand jury charged defendant in a twenty-eight-count indictment. Defendant alleges that Monmouth County filed a detainer on April 2, 1998. On April 6, 1998, the Monmouth County Prosecutor's Office mailed to Sing Sing's superintendent an IAD Form 8, noting defendant was being returned to New Jersey at the request of the Middlesex County Prosecutor, accepting the superintendent's offer of temporary custody, and indicating that Monmouth County would bring defendant to trial, after Middlesex County, "within the time specified in Article IV(c)" of the IAD.

On July 13, 1998, defendant was brought to Monmouth County and arraigned. Defendant's trial on the Monmouth offenses commenced on or about July 28, 1999. The jury found defendant guilty of first-degree armed robbery, N.J.S.A. 2C:15-1, and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a).

On February 4, 2000, defendant was sentenced on the Monmouth offenses. The trial court rejected the State's motion for sentencing to mandatory life in prison without parole under the "Three-Strikes" statute, N.J.S.A. 2C:43-7.1(a). The State appealed. We agreed that defendant should be sentenced to life without parole, and rejected defendant's cross-appeal. State v. Galiano, 349 N.J. Super. 157 (App. Div. 2002), certif. denied, 178 N.J. 375 (2003). The trial court imposed that sentence on October 22, 2003.

On March 17, 2005, defendant filed a pro se PCR petition. On June 23, 2006, his counsel withdrew that petition "without prejudice to his right to refile as if within time and as a first PCR." Defendant refiled a PCR petition dated May 8, 2008. In December 2010, he filed an amended PCR petition, for the first time raising an IAD-related claim:

PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO MOVE TO DISMISS THE INSTANT INDICTMENT PURSUANT TO THE INTERSTATE AGREEMENT ON DETAINERS AND WHEN HIS APPELLATE ATTORNEY FAILED TO RAISE THIS ISSUE ON DIRECT APPEAL (U.S. CONST. AMENDS. V, VI. XIV; NJ CONST. (1947) ART. I, PARS. 1, 9, 10.)

Defendant's certification alleged that his trial counsel never advised he could have his Monmouth County case dismissed under the IAD, and that his appellate counsel never discussed raising the IAD on appeal.

On September 29, 2011, the PCR court denied defendant's petition with prejudice. The court ruled that his PCR petition was untimely under Rule 3:22-12(a), and that his claim of ineffective assistance by trial counsel was meritless because defendant waived his IAD rights.

II.

Defendant appeals, raising the following arguments:

POINT ONE

FIRST PCR COUNSEL WAS INEFFECTIVE BY WITHDRAWING THE APPELLANT'S FIRST PCR ON JUNE 23, 2006 AND APPELLANT IS ENTITLED TO AN EVIDENTIARY HEARING ON THE ISSUE.

POINT TWO

THE PCR COURT COMMITTED ERROR BY DENYING THE APPELLANT'S PETITION AS BEING TIME BARRED.

POINT THREE

THE APPELLANT'S CLAIM OF TRIAL COUNSEL'S INEFFECTIVE ASSISTANCE OF COUNSEL WAS NOT MOOT BECAUSE APPELLANT DID NOT WAIVE HIS IAD CLAIM IN MONMOUTH COUNTY WHEN HIS TRIAL COUNSEL WAIVED THE IAD IN MIDDLESEX COUNTY.

We need not decide defendant's first two points. Instead, assuming his 2010 amended PCR petition was timely, we address his third point.

We must hew to our standard of review. To show ineffective assistance of counsel, defendant must meet the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Fritz, 105 N.J. 42 (1987). "'First, the defendant must show that counsel's performance was deficient.'" State v. Taccetta, 200 N.J. 183, 193 (2009). "'Second, the defendant must show that the deficient performance prejudiced the defense.'" Ibid. We exercise de novo review over the PCR court's conclusions of law. State v. Nash, 212 N.J. 518, 540-41 (2013).

III.

"The Interstate Agreement on Detainers (IAD) is a compact entered into by 48 States, the United States, and the District of Columbia to establish procedures for resolution of one State's outstanding charges against a prisoner of another State." New York v. Hill, 528 U.S. 110, 111, 120 S. Ct. 659, 662, 145 L. Ed. 2d 560, 564 (2000); State v. Baker, 198 N.J. 189, 191 n.1 (2009); see N.Y. Crim. Proc. Law 580.20 (McKinney 2014).1 Its purpose is "to encourage the expeditious and orderly disposition of [charges outstanding against a prisoner already incarcerated in another jurisdiction] and determination of the proper status of any and all detainers based on untried indictments, informations or complaints." N.J.S.A. 2A:159A-1.

Under the IAD, "either the prisoner himself (under Article III of the IAD, N.J.S.A. 2A:159A-3) or the prosecutor in the jurisdiction where the charge is pending (under Article IV, N.J.S.A. 2A:159A-4) can initiate proceedings to bring the prisoner to trial." State v. Pero, 370 N.J. Super. 203, 206 (App. Div. 2004). Here, defendant invoked his rights under Article III, and then Monmouth County invoked Article IV.

Under Article III(a), N.J.S.A. 2A:159A-3(a), once another State has lodged a detainer against a prisoner,

he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint.

The 180-day period runs from the date the appropriate written notice is actually delivered. Fex v. Michigan, 507 U.S. 43, 52, 113 S. Ct. 1085, 1091, 122 L. Ed. 2d 406, 416 (1993); Pero, supra, 370 N.J. Super. at 215. If the case is not brought to trial within the 180-day period, "the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing the same with prejudice." N.J.S.A. 2A:159A-5(c).

Here, defendant caused such written notice to be delivered to Middlesex County on August 18, 1997. Therefore, trial had to commence on the Middlesex offenses by February 14, 1998, absent any continuances or unavailability for trial. See N.J.S.A. 2A:159A-3(a), -6(a).

Defendant assumes the 180-day limit in Article III(a) applied to the Monmouth offenses as well. However, the applicable time period is not clear, for three reasons. First, Article III(d) provides:

Any request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall operate as a request for final disposition of all untried indictments, informations or complaints on the basis of which detainers have been lodged against the prisoner from the State to whose prosecuting official the request for final disposition is specifically directed.

[N.J.S.A. 2A:159A-3(d) (emphasis added).]

When defendant made his request to Middlesex County, no detainer had been lodged by Monmouth County in New York State.2 Until such a detainer is lodged, the IAD does not apply to an indictment. United States v. Mauro, 436 U.S. 340, 361, 98 S. Ct. 1834, 1848, 56 L. Ed. 2d 329, 347 (1978); Baker, supra, 198 N.J. at 194; State v. Burnett, 351 N.J. Super. 222, 226 (App. Div. 2002).3

Second, on April 6, 1998, the Monmouth County prosecutor requested under Article IV(a), N.J.S.A. 2A:159A-4(a), for New York to deliver defendant to Monmouth County. This request was received in Sing Sing on April 9, 1998.4 Upon such a request, the State in which a prisoner is incarcerated (the "sending State") must "deliver temporary custody of such prisoner to the appropriate authority" making the request in the State in which trial is to occur (the "receiving State"). N.J.S.A. 2A:159A-5(a); see N.J.S.A. 2A:159A-2(b), (c). Article IV(c) requires that trial commence "within 120 days of the arrival of the prisoner in the receiving State." N.J.S.A. 2A:159A-4(c). Here, New York had already delivered defendant to New Jersey under Article III(a). Defendant says he arrived on October 30, 1997, and 120 days thereafter was February 27, 1998, long before Monmouth County's April 6, 1998 request under Article IV(a).5

Third, when Articles III and IV have both been invoked in the same case, courts have split on which article governs. E.g., Matthews v. Commonwealth, 168 S.W.3d 14, 17-19 (Ky. 2005), cert. denied, 546 U.S. 1178, 126 S. Ct. 1349, 164 L. Ed. 2d 62 (2006). Some courts have ruled that, by invoking Article III, the defendant waives the protections of Article IV; some courts have ruled that the case is governed by the article which was invoked first; and other courts apply the time periods of both articles. Ibid.; Ullery v. State, 988 P.2d 332, 340-41 (Okla. Crim. App. 1999); cf. State v. Mason, 90 N.J. Super. 464, 472 (App. Div. 1966) (ruling that the 180-day period, not the 120-day period, governs because the IAD "was not invoked by the prosecutor but solely by the defendant").

We need not resolve which article or time period governs here. Defendant waived his IAD rights before the earliest conceivable expiration date either of Article III(a)'s 180-day period on February 14, 1998, or of Article IV(c)'s 120-day period on February 27, 1998.

On February 6, 1998, defendant appeared before the Honorable Barnett E. Hoffman in the Middlesex Criminal Part to waive his IAD rights. The Middlesex judge opened the colloquy by noting that defendant "has a charge pending in Monmouth County as well and he is here on a one hundred eighty day turnaround," which was rapidly coming to a conclusion. Trial counsel agreed, and stated: "On behalf of Daniel Galiano I would waive the hundred eighty day rule in order to try this to assess the situation in Monmouth County." Counsel explained that "it would be incumbent on me, Judge, to try to resolve all three indictments simultaneously, so therefore in furtherance of that I would waive the hundred and eighty day rule in order to accommodate that." When asked if he had discussed this with defendant, counsel confirmed that defendant and he "had discussions concerning Monmouth County and Middlesex" and defendant "understands I'm trying to locate that together."

The trial court explained to defendant that he was "here on the hundred and eighty day turn around." Defendant said he knew what that meant. The court explained to defendant that "you apparently have an additional case in Monmouth County and what your attorney is trying to do which makes sense is resolve all of the cases at once." Defendant agreed. The court added that trial counsel "doesn't think that case can be resolved within the hundred and eighty days," which counsel confirmed. The court reiterated that trial counsel was "asking to waive the hundred eighty day requirement." With defense counsel's concurrence, the court adjourned the hearing.

Thus, directly and through counsel, defendant made clear that he wanted to waive the IAD's time requirements to give counsel the opportunity to resolve defendant's Middlesex and Monmouth indictments simultaneously. We agree with the PCR court that defendant's waiver thus was properly understood to waive his IAD rights in both Middlesex and Monmouth Counties.

A defendant may waive his rights under the IAD. Hill, supra, 528 U.S. at 114, 120 S. Ct. at 663-64, 145 L. Ed. 2d at 566. A defendant waives adherence to the IAD time limits if he affirmatively requests, or willingly accepts, delay or "treatment inconsistent with the IAD's time limits." Id. at 118, 120 S. Ct. at 666, 145 L. Ed. 2d at 569; see State v. Buhl, 269 N.J. Super. 344, 357 (App. Div.), certif. denied, 135 N.J. 468 (1994). Such a waiver may occur even if there has been no continuance meeting the requirements of N.J.S.A. 2A:159A-3(a) or -4(c). See Hill, supra, 528 U.S. at 116, 120 S. Ct. at 664-65, 145 L. Ed. 2d at 567-68.6

In Hill, the U.S. Supreme Court ruled that defense counsel's assent to a trial date outside of the 180-day period was sufficient to constitute the defendant's waiver of his IAD rights regarding that delay, without the defendant's personal, informed waiver or any showing of his consent. Id. at 112-15, 120 S. Ct. at 663-64, 145 L. Ed. 2d at 565-67. Such a "waiver may be effected by action of counsel," because "[s]cheduling matters are plainly among those for which agreement by counsel generally controls." Id. at 114-15, 120 S. Ct. at 664, 145 L. Ed. 2d at 566-67; see also Miller, supra, 299 N.J. Super. at 398-99 (ruling that a counsel's consent to a continuance in the defendant's absence is effective under the IAD).

Hill did "not involve a purported prospective waiver of all protection of the IAD's time limits or of the IAD generally, but merely agreement to a specified delay in trial." Hill, supra, 528 U.S. at 115, 120 S. Ct. at 664, 145 L. Ed. 2d at 567. However, we addressed a waiver of all IAD protections in State v. Miller, 277 N.J. Super. 122, 128-29 (App. Div. 1994), certif. denied, 142 N.J. 449 (1995).

In Miller, the prosecutor indicated that the defendant wanted to return to prison in New York before his New Jersey case was resolved. Ibid. The court asked only if that was what defense counsel and defendant wanted, without any description or explicit waiver of the IAD rights the defendant was surrendering. Ibid.7 We ruled that in this limited colloquy, "defendant waived any other cognizable claim under the IAD." Ibid. We emphasized that a "waiver of a statutory right need not be developed as formally as a waiver of a constitutional right. Thus, 'the "knowing and intelligent" standard is not the appropriate test for determining whether or not there has been a waiver of [IAD] rights.'" Ibid. (quoting Yellen v. Cooper, 828 F.2d 1471, 1474 (10th Cir.1987)). Accordingly, we concluded the defendant did not have to be expressly "informed of the consequences of that [waiver] under the IAD." Ibid.

Here, defendant "'affirmative[ly] request[ed] to be treated in a manner contrary to [the IAD]' and waived his right to have the trial commence within 180 days of his request for final disposition of the pending charges." Buhl, supra, 269 N.J. Super. at 357 (quoting U.S. v. Eaddy, 595 F.2d 341, 344 (6th Cir. 1979)). Accordingly, defendant "waived any statutory rights he had under the IAD." Miller, supra, 277 N.J. Super. at 128.8

The colloquy here was much more thorough than the colloquy we approved in Miller. Nonetheless, defendant argues it is unclear that he gave his counsel permission to waive the IAD deadline for the Monmouth offenses because the court's colloquy did not specifically establish that he agreed with his counsel's representation. To the contrary, defendant told the court he understood that he had a right to be tried within 180 days, that he had a case in Monmouth County, and that his counsel was trying to resolve that case at the same time as his Middlesex offenses. Further, counsel assured the court that he had discussed with defendant the Middlesex and Monmouth offenses, and that defendant understood that counsel was trying to try or settle them together. Finally, defendant heard counsel affirm that he could not resolve the Monmouth County case within the 180 days, and that defendant was therefore waiving the 180-day requirement to allow the cases to be resolved together. Defendant gave no indication that he was not in full agreement with that waiver.

Defendant argues he could waive his IAD rights regarding the Monmouth offenses only in a Monmouth County proceeding. He cites State v. Masselli, 43 N.J. 1 (1964), but Masselli did not so hold. Rather, the Supreme Court ruled that, because "one prosecutor may not bind another by act or default," a county prosecutor's failure to accept temporary custody under N.J.S.A. 2A:159A-5(c) does "not bind the prosecutors of the other counties" or foreclose their prosecutions. Masselli, supra, 43 N.J. at 9, 11. The Court reasoned that the IAD "treats each county as a separate jurisdiction, thus recognizing the reality that, notwithstanding that all prosecutions are in the name of the State, the responsibility is in fact parcelled among the county prosecutors." Id. at 9.

Thus, Masselli just limits the ability of one prosecutor to bind another. It does not prohibit a defendant from waiving his IAD rights simultaneously for more than one county. Here, defendant was waiving his IAD rights to address the charges in two counties together, so it was entirely appropriate to allow him to waive them together.

Defendant claims that the Monmouth County prosecutor never "looked into the waiver issue" until January 25, 1999, when he sent a letter seeking a transcript of the February 6, 1998 hearing. However, the prosecutor's letter makes clear that he had been advised at an earlier date by the Middlesex County prosecutor "that defendant waived his speedy trial (180 days) right under the Interstate Agreement on Detainers at a status conference before Judge Hoffman on February 6, 1998." In any event, this inquiry does not negate defendant's waiver of his IAD rights.

Accordingly, defendant's underlying IAD claim lacks merit. Therefore, defendant's ineffective assistance of counsel claim fails. State v. O'Neal, 190 N.J. 601, 619 (2007) ("It is not ineffective assistance of counsel for defense counsel not to file a meritless motion."). Because defendant failed to "demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits," the PCR court properly denied an evidentiary hearing. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

Affirmed.

1 Because the IAD "'is a congressionally sanctioned interstate compact,'" it "'is a federal law subject to federal construction.'" Baker, supra, 198 N.J. at 192 n.1 (quoting Carchman v. Nash, 473 U.S. 716, 719, 105 S. Ct. 3401, 3403, 87 L. Ed. 2d 516, 520 (1985)). Accordingly, U.S. Supreme Court opinions are binding upon state courts, and decisions of lower federal courts "should be accorded due respect." Dewey v. R.J. Reynolds Tobacco Co., 121 N.J. 69, 79-80 (1990).

2 According to defendant, Monmouth County lodged a detainer on April 2, 1998.

3 Thus, this is not a situation where several New Jersey counties filed detainers, one county requested temporary custody under Article IV(a), and other counties accepted temporary custody of the prisoner pursuant to that request, thus requiring those counties to commence trial within 120 days of the prisoner's arrival in New Jersey under Article IV(c). See State v. Masselli, 43 N.J. 1, 5-6, 11-12 (1964); State v. Johnson, 188 N.J. Super. 416, 418-19 (App. Div. 1982), certif. denied, 93 N.J. 282 (1983).

4 Regarding the Monmouth offenses, defendant argues on appeal that Article III(a)'s 180-day period started on April 9. In the PCR court, he contended Article IV(c)'s 120-day period started on April 6. However, neither date triggers the running of the time periods under either Article III or Article IV. See N.J.S.A. 2A:159A-3(a), -4(c).

5 It is more plausible that a 120-day period would be calculated from defendant's arrival in Monmouth County on July 13, 1998, after the Middlesex offenses were resolved. See Masselli, supra, 43 N.J. at 9 (the IAD "treats each county as a 'distinct' jurisdiction"); State v. Miller, 299 N.J. Super. 387, 395-96 (App. Div.) ("Under the IAD, the statutory time period will be tolled when a defendant is being tried on other charges in other jurisdictions" or in the same jurisdiction), certif. denied, 151 N.J. 464 (1997); State v. Millett, 272 N.J. Super. 68, 104 (App. Div. 1994) ("A prisoner is unable to stand trial if he is absent from the jurisdiction."); N.J.S.A. 2A:159A-6(a) (the running of the time periods under Articles III and IV "shall be tolled whenever and for as long as the prisoner is unable to stand trial").

6 Both Article III and Article IV permit the time periods therein to be extended: "for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance." N.J.S.A. 2A:159A-3(a), -4(c).

7 See N.J.S.A. 2A:159A-4(e) (requiring the dismissal of indictments not tried before the defendant's return to prison in the sending state); Alabama v. Bozeman, 533 U.S. 146, 149, 121 S. Ct. 2079, 2082-83, 150 L. Ed. 2d 188, 192-93 (2001) (holding Article IV(e) requires dismissal of the indictments even if the defendant's imprisonment is interrupted for only one day).

8 Because the IAD confers statutory rather than constitutional rights, we see no merit in defendant's argument that this conclusion violates his due process rights. Ibid.; see Hill, 528 U.S. at 114-15, 120 S. Ct. at 664, 145 L. Ed. 2d at 566-67 (distinguishing statutory rights under the IAD from "fundamental rights").