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State v. Murray

January 25, 2000

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
NEAL MURRAY, DEFENDANT-RESPONDENT.



The opinion of the court was delivered by: Coleman, J.

Argued October 12, 1999

On certification to the Superior Court, Appellate Division, whose opinion is reported at 315 N.J. Super. 535 (1998).

This appeal involves a belated post-conviction relief (PCR) petition. The primary issue raised is whether an alleged attorney conflict of interest converts a defendant's custodial confinement into an illegal sentence within the meaning of Rule 3:22-12, thereby removing the five-year time limit for filing a PCR application. The trial court held that the PCR petition should be dismissed as time-barred because the issues were, or should have been, raised and decided in the direct appeal. The Appellate Division reversed, concluding that the potential conflict of interest of defendant's attorney made the sentence illegal, thereby justifying a waiver of the five-year time limit. We disagree and hold that a potential conflict of interest by a defense attorney does not affect the legality of a sentence.

I.

Defendant and co-defendant John Sheil were indicted for robbing a Pizza Hut restaurant in Hamilton Township while armed with guns, and committing an aggravated sexual assault upon the assistant manager. Co-defendant Sheil pled guilty to first-degree robbery. Defendant elected to go to trial; a jury convicted him of aggravated sexual assault and two first-degree robberies. The trial court sentenced defendant on March 4, 1988 to concurrent twenty-year terms of imprisonment with ten years of parole ineligibility on the aggravated assault and the robberies. The judgment of conviction was affirmed on December 28, 1988 and this Court denied certification in February 1989. The United States Federal District Court for the District of New Jersey denied a writ of habeas corpus on August 14, 1990.

Defendant filed the present PCR application on December 10, 1995, some seven years and nine months after the judgment of conviction was entered. He contended, among other things, that he received ineffective assistance of counsel. The basis for that claim was an alleged potential attorney conflict of interest arising from the fact that defendant's counsel and the attorney for the co-defendant shared office space and a telephone number during defendant's trial.

The trial court dismissed the PCR petition because it had been filed more than thirty-three months beyond the five-year time limit delineated in Rule 3:22-12. Nonetheless, the trial court addressed the merits of defendant's claims. It found unpersuasive the assertion of excusable neglect based upon defendant's lack of education in the law and the substantive allegation that defendant's attorney had a conflict of interest. The trial court found that defendant's threshold presentation failed to show the attorneys were sufficiently connected to support a claim of conflict under State v. Bellucci, 81 N.J. 531 (1980). Also, the court found that defendant failed to establish ineffective assistance of counsel under 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).

In a published opinion, the Appellate Division reversed. 315 N.J. Super. 535 (App. Div. 1998). The panel agreed with the trial court that defendant had not established excusable neglect; however, it disagreed with the trial court's finding that a potential attorney conflict of interest did not exist. The panel found that because the co-defendant was represented in his plea negotiations by Nicholas Stroumtsos, Jr., Esq., a lawyer who apparently shared an office and telephone with defendant's lawyer, Jules Koller, Esq., there was a potential violation of Bellucci and Rule of Professional Conduct 1.7. The Appellate Division reasoned that the potential conflict of interest made the sentence illegal, and as such, excused the thirty-three month delay in filing the PCR petition. Relying on State v. Norman, 151 N.J. 5 (1997), the panel held that once defendant had demonstrated that there was a potential conflict, he was not obligated to meet the Strickland v. Washington test because prejudice is presumed upon the finding of a potential conflict. Because of the potential attorney conflict, the panel concluded that defendant's sentence was illegal and that under Rule 3:22-12, a petition to correct an illegal sentence may be filed at any time. We granted the State's petition for certification, 158 N.J. 75 (1999), and now modify and affirm.

II.

The State argues that the Appellate Division erred in holding that defendant's claim of ineffective assistance of counsel based on a potential conflict of interest renders defendant's sentence potentially "illegal" under Rule 3:22-12. The State contends that to broaden the definition of an illegal sentence, as has the Appellate Division, would eviscerate the five-year bar and result in a backlog of old cases raising every imaginable potential error made by an attorney or a trial court. Such an interpretation of the definition of "illegal sentence," the State argues, directly conflicts with the finality-of-judgments policy that is so deeply rooted in our legal system.

III.

The grounds upon which post-conviction relief may be granted are enumerated in Rule 3:22-2. Defendant sought relief based on his assertion that his attorney's conflicted representation in the pretrial and trial proceedings deprived him of "rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." R. 3:22-2(a). Although defendant's claim of conflicted representation, and hence ineffective assistance of counsel, was not required to have been presented in his direct appeal, R. 3:22-4(c); State v. Preciose, 129 N.J. 451, 459-61 (1992), his PCR petition had to have been filed within five years of the March 4, 1988 sentencing date, unless the five-year time limit could be waived pursuant to Rule 3:22-12. That rule contains two exceptions to the five-year time limit: an illegal sentence, or a "showing that the delay beyond [five years] was due to defendant's excusable neglect." R. 3:22-12.

Defendant attempted to satisfy both exceptions. The determination by the courts below that defendant did not satisfy the excusable neglect exception is supported by the record. See State v. Locurto, 157 N.J. 463, 470-72 (1999); State v. Johnson, 42 N.J. 146, 161-62 (1964). Defendant's assertion that he lacks sophistication in the law does not satisfy the exceptional circumstances required by State v. Mitchell, 126 N.J. 565, 580 (1992). See also State v. Dugan, 289 N.J. Super. 15, 22 (App. Div.) (holding that misunderstanding the meaning of Rule 3:22-12 does not constitute excusable neglect), certif. denied, 145 N.J. 373 (1996). However, the Appellate Division concluded that defendant's counsel's "conflict of interest renders the sentence illegal," Murray, supra, 315 N.J. Super. at 540, thereby triggering the illegal sentence exception to the five-year time limit. That determination requires us to consider the meaning of an illegal sentence.

Although the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 to 2C:104-9 (Code), does not define the term "illegal sentence," the Code does specify the sentence or penalty for each offense and the authorized dispositions. N.J.S.A. 2C:43-2. Our court rules, which establish the framework for the filing and disposition of PCR petitions, have defined the meaning of "illegal sentence." According to the Rules, relief may be granted to a PCR applicant based on the "[i]mposition of [a] sentence in excess of or otherwise not in accordance with the sentence authorized by law." R. ...


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