STATE OF NEW JERSEY v. KYLE WALKER

NOT FOR PUBLICATION WITHOUT THE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.

KYLE WALKER,

Defendant-Appellant.

__________________________________

April 14, 2014

Submitted October 23, 2013 Decided

Before Judges Fuentes and Haas.

On appeal from Superior Court of New Jersey,

Law Division, Cumberland County, Indictment

No. 04-10-1004.

Joseph E. Krakora, Public Defender, attorney

for appellant (Kisha M. Hebbon, Designated

Counsel, on the brief).

John T. Lenahan, Salem County Prosecutor,

attorney for respondent (Gregory G. Waterston,

Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Kyle Walker appeals from the order of the trial court denying his post-conviction relief (PCR) petition. We affirm.

On June 18, 2004, defendant, then sixteen years old, was charged in the Family Part with six acts of delinquency that, if committed by an adult, would constitute the crimes of conspiracy to commit murder, N.J.S.A. 2C:5-2a(1), N.J.S.A. 2C:11-3a(1); conspiracy to commit first degree armed robbery, N.J.S.A. 2C:5-2a(1), N.J.S.A. 2C:15-1; second degree aggravated assault with a handgun, N.J.S.A. 2C:12-1b(2); second degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4; third degree endangering an injured victim, N.J.S.A. 2C:12-1.2a; and third degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. The delinquency charges were thereafter transferred to the Law Division, Criminal Part pursuant to N.J.S.A. 2A:4A-26.

By agreement with the State, defendant waived his right to indictment and on October 18, 2004, pled guilty to an accusation charging him with first degree felony murder, N.J.S.A. 2C:11-3a(3), and first degree robbery, N.J.S.A. 2C:15-1. As described by defendant's attorney at the plea hearing, "in return for" defendant's plea of guilty to these two crimes, the State agreed to recommend to the court that defendant be sentenced to a term of thirty years without parole for the murder count, and a concurrent sentence of fifteen years, with an eighty-five percent period of parole ineligibility and five years of parole supervision as mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the charge of first degree robbery. As part of the plea agreement, defendant was expected to testify truthfully and accurately as a witness for the State at the trial of his codefendants.

On January 26, 2005, the court sentenced defendant in accordance with the plea agreement. Defendant did not file a direct appeal challenging any aspect of his plea hearing or the sentence imposed by the court. On May 7, 2010, defendant filed pro se the PCR petition under review here. Specifically, defendant claimed the sentence imposed by the court was illegal "based upon the disparity of the sentences imposed upon myself and my codefendants." Defendant also argued he was "not [] allowed to speak at his waiver hearing"1 in violation of his "[F]ourteenth [A]mendment right to due process." Defendant also claimed his attorney did not raise the affirmative defense of "diminished capacity" and the sentencing court improperly weighed the aggravating and mitigating factors under N.J.S.A. 2C:44-1.

The trial court assigned counsel to represent defendant in the prosecution of the PCR petition. PCR counsel filed a legal memorandum in support of defendant's petition in which he argued defendant received ineffective assistance of trial counsel. PCR counsel also filed a supplemental brief responding to the State's claim that defendant's PCR petition was barred under Rule 3:22-12(a)(1) because it was filed more than five years after the trial court entered the judgment of conviction pursuant to Rule 3:21-5.

After considering the arguments of counsel, Judge Robert P. Becker, Jr., denied defendant's PCR petition as time-barred under Rule 3:22-12(a)(1). Judge Becker found defendant had not provided any evidence showing that the delay in filing his petition "was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice." Ibid. Despite finding proper legal grounds to apply this procedural bar, Judge Becker reviewed the merits of defendant's claims, and after applying the two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58, 519 A.2d 336 (1987), denied defendant's petition in an oral opinion delivered from the bench on January 13, 2012.

Defendant now appeals raising the following arguments:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

A. The Prevailing Legal Principles Regarding Claims of Ineffective Assistance of Counsel, Evidentiary Hearings And Petitions For Post Conviction Relief.

B. Trial Counsel Rendered Ineffective Legal Representation By Virtue of Her Failure To Vigorously Argue On Defendant's Behalf At Sentencing And To Present All Mitigating Factors That Applied To Defendant.

C. Defendant Is Entitled To A Remand To The Trial Court To Afford Him An Evidentiary Hearing To Determine The Merits Of His Contention That He Was Denied The Effective Assistance Of Trial Counsel.

POINT II

THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WAS TIME-BARRED.

A. The Petition For Post Conviction Relief Is Not Time-Barred Because Petitioner's Failure To File His Petition Within Five Years Of His Conviction Was Due To Excusable Neglect And Because The Interests of Justice Warrant Relaxation of the Time Bar.

1. The Time Bar Should Be Relaxed Because Defendant's Delay In Filing His Post Conviction Relief Petition Was Due To Excusable Neglect.

2. The Time Bar Should Be Relaxed in the Interests of Justice.

We reject these arguments and affirm substantially for the reasons expressed by Judge Becker in his oral opinion of January 13, 2012.

1 We infer defendant is referring to the hearing held before the Family Part pursuant to N.J.S.A. 2A:4A-26 that transferred the delinquency charges to the Criminal Part and submitted defendant to the jurisdiction of the criminal court despite being under the age of eighteen.