STATE OF NEW JERSEY v. DARIUS M. WILSON

NOT FOR PUBLICATION WITHOUT THE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.

DARIUS M. WILSON,

Defendant-Appellant.

_________________________________

June 15, 2015

Submitted February 3, 2015 Decided

Before Judges Hayden and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 06-01-0001.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, 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 Darius M. Wilson appeals from a November 13, 2013, order denying his petition for post-conviction relief (PCR) as procedurally barred by Rule 3:22-12. Tried by a jury, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1; and second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). Other indicted charges were dismissed at trial: third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; fourth-degree aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1(b)(5); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a). The trial judge merged the aggravated assault charge into the robbery charge, and sentenced defendant to a prison term of fifteen years subject to serving 85% without parole under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Judgment of conviction was entered January 9, 2007. We affirmed defendant's conviction and sentence on appeal. Defendant's petition for certification was denied. State v. Wilson, No. A-3488-06 (App. Div. March 4, 2009), cert. denied, 199 N.J. 541 (2009).

On March 19, 2013, more than six years after his conviction, defendant filed a pro se PCR petition
in which he alleged counsel provided ineffective assistance during the trial, and that he and his counsel were not given sufficient notice of his sentencing date, rendering them unprepared, providing an advantage to the State.

PCR counsel was appointed to represent defendant. In his subsequent certification, defendant stated that trial counsel failed to: adequately explain the plea offer made during the trial, timely move to sever charges of aggravated assault on a law enforcement officer and resisting arrest from the other charges, and challenge the indictment. Defendant also claimed that trial counsel failed to object to the judge going forward with the sentencing when defendant was not given adequate notice to inform his family and friends to attend and speak on his behalf.

Notably, defendant was aware that his petition was filed beyond the five-year time limit following entry of his judgment of conviction as required by Rule 3:22-12(a)(1). He requested that the court not apply the time bar because of "excusable neglect and/or hear the substance of my matter in the interest of justice." R. 3:22-12(a)(1). Defendant contended that his appellate counsel retired and did not inform him that his petition for certification was denied in June 2009. Defendant claims that despite letters to appellate counsel's office and family members' attempts to contact him, it was not until early 2013 that defendant learned his petition for certification was denied. He was aware of the five-year time limitation to file a PCR petition but felt that that his claim could not be heard "until his direct appeals were exhausted." Shortly after learning the Supreme Court denied his petition for certification, defendant filed his pro se PCR petition. Defendant contends that appellate counsel was ineffective for failing to inform him of the denial of his petition for certification.

The PCR judge, who was not the trial judge, conducted oral argument on defendant's petition. In a written decision that identified defendant's allegations, the judge denied the petition on the basis that it was not timely filed pursuant to Rule 3:22-12(a)(1). The judge noted that had defendant "filed a timely [p]etition that filing would have been protected during appellate review under the provisions of Rule 3:22-12(a)(4)."1 Further, defendant's direct appeal was denied by our court "on March 18, 2009 so he was aware of his claim of ineffective assistance appellate counsel within the timeframe established by the rule." Citing Rule 3:22-12(a)(1), the judge concluded that defendant "fails to meet his burden to establish excusable neglect or that 'enforcement of the time bar would result in a fundamental injustice.'" The judge did not explain his reasoning for such conclusion nor address the merits of defendant's ineffective assistance of counsel claims. A conforming order was entered, followed by this appeal.

Before us, defendant argues that the PCR judge erred in denying him PCR on procedural grounds without affording defendant an evidentiary hearing. At sentencing, he was not made aware of the time limits for filing a PCR petition.2 According to defendant, in light of appellate counsel's retirement and the lack of substitute counsel, there was excusable neglect in not filing a timely petition. Defendant also contends that given the lack of evidence that a weapon was used in the robbery, appellate counsel was ineffective for not contending that the trial court erred in amending the first-degree robbery charge to reflect that the victim suffered "serious bodily injury" to replace the allegation that defendant used a deadly weapon to impose "bodily injury."3

As to trial counsel, defendant reiterates the argument on appeal that counsel failed to adequately explain a plea offer made at trial. Had he done so, defendant claims he would have accepted the offer. Defendant argues that a hearing is necessary to assess the advice trial counsel gave defendant, which was confidential and off the record. Defendant also argues that trial counsel failed to request an adjournment or object to the judge going forward with the sentencing when defendant, who was incarcerated at the time, was not given adequate notice to inform his family and friends to attend and speak on his behalf. He asserts that a hearing should be held for his family and friends to indicate what they would have said had they been given the opportunity to speak.

We have considered these arguments in light of the record and applicable legal standards. We remand for a statement of reasons supporting the dismissal of the petition as untimely and that enforcement of the time bar would not result in a fundamental injustice. R. 3:22-12(a)(1).

We begin with a review of the well-established applicable legal principles. We exercise de novo review over the PCR court's conclusions of law. State v. Nash, 212 N.J. 518, 540-41, (2013). To show ineffective assistance of counsel, defendant must meet the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in 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.
"Because post-conviction relief is not a substitute for direct appeal and because of the public policy 'to promote finality in judicial proceedings,' our rules provide various procedural bars." State v. Echols, 199 N.J. 344, 357 (2009) (quoting State v. McQuaid, 147 N.J. 464, 483 (1997)). Rule 3:22-12(a)(1) provides that "[n]o petition shall be filed . . . more than 5 years" after the entry of the challenged judgment of conviction. For an untimely petition to be heard, the petitioner must allege facts in the petition and the trial court must find that the delay "was due to defendant's excusable neglect and that there is a reasonable probability that if defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice." R. 3:22-12(a)(1).

To relax the five-year time limitation for a PCR petition, the New Jersey Supreme Court has required a showing of "compelling, extenuating circumstances," see State v. Milne, 178 N.J. 486, 492 (2004); State v. Goodwin, 173 N.J. 583, 594, (2002), or, alternatively, "exceptional circumstances," see State v. Murray, 162 N.J. 240, 246 (2000); State v. Mitchell, 126 N.J. 565, 580 (1992). A procedural rule otherwise barring post-conviction relief may be overlooked to avoid a fundamental injustice where the deficient representation of counsel affected "a determination of guilt or otherwise wrought a miscarriage of justice." See Nash, supra, 212 N.J. at 546 (quoting Mitchell, supra, 126 N.J. at 587). In determining whether a defendant has demonstrated excusable neglect, we "consider the extent and cause of the delay, the prejudice to the State, and the importance of petitioner's claim in determining whether there has been an injustice sufficient to relax the time limits." Milne, supra, 178 N.J. at 492. To succeed on a claim of fundamental injustice, the petitioner must show that the error "played a role in the determination of guilt." Ibid.

Applying these principles, we are constrained to remand for the PCR judge to provide the basis for his ruling that defendant failed to "establish excusable neglect or that enforcement of the time bar would result in a fundamental injustice." Rule 3:22-11 requires that a PCR court "shall state separately its findings of fact and conclusions of law." See also R. 1:7-4 ("[t]he court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in all actions tried without a jury. . . .")
Here, it is not clear why the PCR judge determined the five-year time ban should not be relaxed. In order to allow meaningful appellate review, it is necessary for the judge to explain the rationale for his factual and legal conclusions consistent with this decision. Such explanation must be provided within sixty days of this decision. We will not put aside the timeliness issue and assess the PCR petition's merits, as the judge did not address the merits of the claims. We decline to take original jurisdiction to determine the matter. R. 2:10-5.

Reversed and remanded. We do not retain jurisdiction.

1 The correct citation is Rule 3:22-12(a)(3).

2 Rule 3:21-4(h), requiring that a defendant be advised of the time limitations to file a petition for PCR did not become effective until September 1, 2009, well over two years after defendant's sentencing.

3 This argument was not set forth in defendant's pro se submission nor his amended PCR petition certification prepared by counsel. Although defendant's certification makes reference to additional issues raised in the supplemental brief filed by counsel, the brief was not provided in the record submitted to this court. Yet at the oral argument counsel argued that appellate counsel's failure to rise this issue was defendant's "strongest factual basis" for ineffective assistance of counsel.