On appeal from the Superior Court of New Jersey, Law Division, Mercer County, 85-10-1108-I.
Before Judges Pressler, Wefing and Parrillo.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 23, 2001
This is an appeal from the denial of post-conviction relief (PCR) after an evidentiary hearing mandated by the Supreme Court in this case, State v. Murray, 162 N.J. 240 (2000), to determine whether defendant's trial attorney had a conflict of interest which deprived defendant of the effective assistance of counsel. We affirm.
Defendant Neal Murray and co-defendant John Sheil were indicted on October 15, 1985 for first-degree robbery while armed, N.J.S.A. 2C:15-1 and 2C:2-6 (counts one, two and three); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a and 2C:2-6 (count four); second-degree possession of weapons, handguns, with the purpose to use them unlawfully, N.J.S.A. 2C:39-4a and 2C:2-6 (count five); and third-degree possession of a weapon, a knife, with the purpose to use it unlawfully, N.J.S.A. 2C:39-4d and 2C:2-6 (count six). Sheil pled guilty to first-degree robbery and agreed to testify for the State at defendant's trial, in exchange for which the State agreed to recommend that Sheil be sentenced to a custodial term of fifteen years with a seven and one-half year period of parole ineligibility. Sheil was sentenced after defendant's trial.
Defendant elected to go to trial. Tried to a jury, defendant was convicted on all counts. After appropriate mergers,*fn1 defendant was sentenced on March 4, 1988 to concurrent twenty-year terms of imprisonment with ten years of parole ineligibility on the aggravated sexual assault (count four) and two first-degree robberies (counts one and two). The aggregate sentence was to be served consecutively with a separate sentence imposed on an unrelated indictment.
The judgment of conviction was affirmed in an unreported decision, A-3725-87T7, on December 28, 1988. In that decision, we offered the following summary:
The convictions arose from the armed robbery of a Pizza Hut restaurant in Hamilton Township by two armed men dressed in ski masks. Defendant's guilt was overwhelmingly proved by the testimony of his confederate, amply confirmed by defendant's own statements and real evidence in the form of weapons and loot recovered from defendant, a ski mask and gloves found nearby when he was arrested and a revolver and ski mask were recovered from his confederate [John Sheil]. [State v. Murray, No. A-3725-87T7 (App. Div. Dec. 28, 1988).]
The Supreme Court denied certification in an order filed February 9, 1989. The United States Federal District Court for the District of New Jersey denied a writ of habeas corpus on August 14, 1990. Neal Murray v. John Rafferty, Civil No. 89-2650 (D. N.J. August 14, 1990).
Defendant filed the present post-conviction relief (PCR) application on December 10, 1995. He claimed, among other things, that he received ineffective assistance of counsel in that (1) his trial attorney never communicated to him a favorable plea offer received prior to trial and (2) his trial counsel had a conflict of interest based on the fact that during defendant's trial, counsel shared office space and a telephone number with the attorney for co-defendant John Sheil. The motion judge dismissed the PCR petition as time-barred, having been filed seven years and nine months after defendant's conviction. R. 3:22-12. The judge also found no excusable neglect for the delay, but he nonetheless addressed the merits of defendant's substantive claim and concluded that defendant failed (1) to show the attorneys were sufficiently connected to support a claim of conflict under State v. Bellucci, 81 N.J. 531 (1980), and (2) 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 reported opinion, we reversed. State v. Murray, 315 N.J. Super. 535 (App. Div. 1998). Contrary to the motion judge's finding, we held that a potential attorney conflict of interest did in fact exist that rendered the defendant's sentence illegal, thus excusing the thirty-three month delay in filing the PCR petition under R. 3:22-12. The Supreme Court granted the State's petition for certification, 158 N.J. 75 (1999), and then modified and affirmed our judgment. State v. Murray, 162 N.J. 240 (2000). The Court held that an attorney conflict of interest does not render the sentence "illegal," but nevertheless agreed that defendant was entitled to an evidentiary hearing to determine whether a conflict of interest existed that created a presumption of prejudice. In ordering a remand, the Court directed thus:
If on the remand the trial court is convinced that an attorney conflict of interest existed that created a presumption of prejudice, the court should apply the injustice exception in Rule 1:1-2 and Rule 3:22-4(b) to overcome the five-year time limit of Rule 3:22-12 . . . If the Court determines that the injustice or extenuating circumstances exception applies, it must then decide whether defendant was deprived of effective assistance of counsel. [162 N.J. at 251.]
A hearing was held before the PCR judge on April 3, 2000 to determine the full extent of the alleged conflict of interest between defendant's trial counsel, Jules Kollar, Esq., and his co-defendant's counsel Nicholas Stroumtsos, Jr., Esq. Actually, as of the date of his indictment on October 15, 1985, defendant was represented by another attorney, Francis Hartman, Esq. In fact, in February 1986, Hartman had represented defendant in entering guilty pleas that disposed of four other armed robbery charges in other counties, for which defendant received an aggregate sentence of twenty years imprisonment with seven and one-half years of parole ineligibility. Hartman ceased his representation of defendant sometime in June 1987, and in August 1987 defendant retained Jules Kollar to represent him on the present charges. As noted, Nicholas Stroumtsos represented co- defendant John Sheil who, on April 8, 1987, pled guilty to one robbery count of the indictment and agreed to testify for the State at defendant's trial in exchange for the State's recommendation of a fifteen-year custodial term with a seven and one-half-year parole bar.
The evidence adduced at the April 3, 2000 hearing fairly supports the findings of the PCR judge as to the nature of the relationship between Kollar and Stroumtsos prior to Kollar's ...