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State v. Difrisco

July 5, 2006

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANTHONY DIFRISCO, DEFENDANT-APPELLANT.



On appeal from the Superior Court, Law Division, Essex County.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

This is an appeal from a denial of a petition for post-conviction relief in a death penalty case. It requires the Court to decide whether a Justice's determination on proportionality review is part of his or her vote in a separate, direct appeal, or whether the two reviews (which this Court has since consolidated into a single proceeding) are distinct.

Anthony DiFrisco entered Jack's Pizzeria in Maplewood in August 1986, and shot the owner, Edward Potcher, five times at close range, killing him. Approximately one year later, the New York City Police arrested DiFrisco in an unrelated matter at which time he confessed to the killing, telling police he had been hired to kill Potcher for $2,500. A grand jury subsequently indicted DiFrisco for capital murder. DiFrisco pled guilty to capital murder, and waived a jury for the penalty-phase. A judge sentenced him to death. This Court affirmed the conviction but reversed the death sentence, finding the State had failed to introduce any independent proof of the murder for hire aggravating factor. The matter was remanded for a new penalty-phase proceeding. On remand, the jury found the aggravating factor of murder for hire and that it outweighed all mitigating factors, and DiFrisco was sentenced to death.

Difrisco again appealed the death sentence, and, in a four-three decision, this Court affirmed the sentence. In that decision, Chief Justice Wilentz and Justices Garibaldi, Pollock, and O'Hern voted to affirm the death sentence. Jusices Handler, Clifford and Stein dissented. The dissenters voted to vacate the death sentence. One year later, the Court conducted its proportionality review of DiFrisco's sentence and, by a vote of five-to-two, affirmed the sentence. Writing for the majority, Justice Garibaldi was joined by Chief Justice Wilentz and Justices Pollock, Stein, and Coleman -- Justice Coleman having replaced Justice Clifford after Clifford's retirement from the Court. Justice Handler again dissented. Justice O'Hern, who had voted to affirm the sentence on direct appeal, this time dissented, determining that the death sentence was disproportionate because offenders like DiFrisco usually received a life sentence.

The following year, DiFrisco filed a post-conviction relief (PCR) petition, arguing he was denied effective assistance of counsel during the penalty phase. The PCR court denied that petition and this Court affirmed. During the pendency of DiFrisco's petition, this Court decided In re Proportionality Review Project, holding that the proportionality review of a capital sentence should be consolidated with a defendant's direct death penalty appeal. DiFrisco filed a second PCR petition in 2003. The trial court denied that petition and this appeal ensued.

HELD: Because proportionality review and penalty review both determine whether a death sentence was properly imposed, votes in the two reviews must be combined. A combined vote in DiFrisco's proportionality review and penalty review reveals that a majority of this Court concluded that DiFrisco should receive a life sentence.

1. Initially, the Court must consider the State's argument that DiFrisco is procedurally barred from bringing this petition because of Rule 3:22-12. That provision requires that a PCR petition must be filed within 5 years of the judgment unless the delay was due to a defendant's excusable neglect; or, where a death penalty has been imposed, within thirty days of the denial of certiorari by the U.S. Supreme Court on defendant's direct appeal. The Court interprets the bar on death penalty PCR petitions to apply only to a defendant's first PCR petition, and concludes that subsequent petitions are governed by the five-year limitation. The Court also finds that since the Court's determination to include proportionality review within a direct appeal from a death sentence occurred after defendant's five-year limitation period had already expired, DiFrisco's failure to file his PCR petition within five years qualifies as excusable neglect. (pp. 7-13)

2. DiFrisco argues that his sentence is arbitrary and capricious and thus violates the federal and state constitutional prohibitions against cruel and unusual punishment. He points out that the direct appeal and proportionality review phases of his sentence were conducted separately over the course of two terms prior to the Court's decision in In re Proportionality Review Project, in which those two phases were consolidated. DiFrisco argues that when the votes of his two separate reviews are combined, as he contends would have been the case if his appeal was decided after In re Proportionality Review Project, four members, or a majority of the Court, voted to reverse his sentence. Thus, DiFrisco asserts that he faces death "by the mere happenstance of timing." The State argues in opposition that DiFrisco had a full and fair review of his conviction and sentence on direct appeal, and that the consolidation of proportionality review was for the purpose of increasing efficiency of proceedings, not because of any perceived unfairness. Alternatively, the State argues that a proper counting of the votes of the two proceedings reveals a four-to-four split, which would result in an affirmance of DiFrisco's sentence. (pp. 13-15)

3. On direct appeal in capital cases, this Court considers both whether a defendant's conviction should be upheld ("conviction review") and whether the death sentence should be upheld ("penalty review"). The conviction review encompasses arguments relating to the jury determination that a defendant is guilty of the alleged crime. In the penalty review, the Court considers whether a death sentence imposed during the sentencing phase should be overturned. The penalty review also requires the Court to determine whether the death sentence is disproportionate to the penalty imposed in similar cases. Proportionality review arose in response to the U.S. Supreme Court opinion in Furman v. Georgia, 408 U.S. 238 (1972), which effectively invalidated every death penalty statute in the nation. Georgia adopted a death penalty statute to address the concerns of Furman, and included among its provisions proportionality review. The U.S. Supreme Court sustained this statute in Gregg v. Georgia, 428 U.S. 153 (1976). Other states seeking to enact constitutional death penalty statutes followed the statute upheld in Gregg like a recipe, including provisions for proportionality review. Although the U.S. Supreme Court later held that proportionality review was not "indispensable" to a constitutional death penalty statute, New Jersey's statute continues to require this Court to conduct proportionality review upon the request of a defendant. N.J.S.A. 2C:11-3e. This Court initially determined that proportionality review would be conducted only if defendants were unsuccessful on all other legal arguments and in an entirely different proceeding. In In re Proportionality Review Project, the Court determined that the justifications for such bifurcated proceedings were no longer persuasive and consolidated proportionality review with the direct appeal. (pp. 15-24)

4. The unique situation in this appeal -- in which three Justices voted to reverse DiFrisco's death sentence in the penalty review and one additional Justice voted to reverse in the proportionality review -- requires the Court to evaluate the relationship between the direct appeal penalty reviews and proportionality reviews. The Court concludes that, because both penalty review and proportionality review determine whether a death sentence has been properly imposed, the two reviews are not distinct but rather different aspects of the same consideration -- whether there was error in the imposition of the death penalty. The Court's prior practice of conducting our capital review in bifurcated proceedings was an artificial construct that does not change the fact that penalty review and proportionality review are part of the same legal inquiry. The Court concludes that the determination that a death sentence is proportionate to other death sentences is part of a Justice's decision to affirm a death sentence in our penalty review. (pp. 24-27)

5. In the present matter, DiFrisco's death sentence must be vacated and a life sentence imposed. A review of the votes in the two appeals leads to the conclusion that the Court's construct of conducting bifurcated proceedings prevented the Court from determining that DiFrisco's death sentence was improperly imposed. In DiFrisco's then-separate direct appeal review, three Justices concluded that because the trial court failed to ascertain whether the jury reached a final non-unanimous verdict, the death sentence should be vacated and the trial court impose a life sentence. Then, in the Court's proportionality review, another Justice found that DiFrisco's sentence was disproportionate because offenders such as DiFrisco usually receive life sentences. Accordingly, four Justices -- and thus a majority -- found that DiFrisco's death sentence was improperly imposed and that he should receive a life sentence. The fact that the decisions were made one year apart is of no import. That was a function of the Court's construct and is not dispositive. (pp. 27-30)

The trial court's denial of DiFrisco's petition for post-conviction relief is REVERSED, DiFrisco's death sentence is VACATED, and the matter is REMANDED to the trial court for imposition of a life sentence.

JUSTICE LaVECCHIA, joined by JUSTICES WALLACE and RIVERA-SOTO, has filed a separate, DISSENTING opinion, expressing the view that the issues addressed on direct appeal and during proportionality review are unrelated, and there is no basis for reversing the prior, validly entered judgments of the Court.

JUSTICE RIVERA-SOTO, joined by JUSTICE WALLACE, has filed a separate, DISSENTING opinion, expressing the view that the majority's conclusion is grounded in the aggregate of dissenting votes in two distinct cases, and is contrary to the principle that appeals lie from judgments and not from the views of individual judges.

CHIEF JUSTICE PORITZ and JUSTICES LONG and ALBIN join in JUSTICE ZAZZALI's opinion. JUSTICE LaVECCHIA filed a separate, dissenting opinion, in which JUSTICES WALLACE and RIVERA-SOTO join. JUSTICE RIVERA-SOTO filed a separate, dissenting opinion, in which JUSTICE WALLACE joins.

The opinion of the court was delivered by: Justice Zazzali.

Argued January 31, 2006

In Gregg v. Georgia, the United States Supreme Court declared that "the penalty of death is different in kind from any other punishment imposed under our system of criminal justice." 428 U.S. 153, 188, 96 S.Ct. 2909, 2932, 49 L.Ed. 2d 859, 883 (1976). In light of that simple and profound consideration, this Court has taken extreme care to ensure that no death sentence is imposed in an arbitrary and capricious manner. In this case, four separate members of the same Court over two terms found for different reasons that a sentence of death was not warranted. Nevertheless, today defendant is housed in a unit awaiting execution.

To satisfy Gregg and ensure that a death penalty is properly imposed, our Legislature enacted the current death penalty statute. Among other protections, that statute requires this Court to conduct, upon a capital defendant's request, a proportionality review to determine that a defendant's death sentence is not disproportionate to other death sentences. In structuring our proportionality review procedures, we created a bifurcated capital appellate review system in which we first considered arguments for why a death sentence should be overturned other than proportionality and, if those arguments were rejected, then conducted a proportionality review in a separate proceeding. In 1999, we abandoned that bifurcated process and consolidated the two reviews.

Our decision to separate the determination whether a death sentence was properly imposed into two separate proceedings has led to the unique question in this matter. In 1994, in a four-to-three decision, the Court affirmed defendant's death sentence on direct appeal. One year later, in a separate five-to-two vote, we affirmed defendant's sentence pursuant to our proportionality review. However, in that decision, one Justice, who had voted to affirm defendant's sentence in the first proceeding, voted in the second to overturn the sentence, concluding that it was disproportionate. Between the two proceedings, then, four members of the Court voted to overturn defendant's death sentence and impose a life sentence. After our decision to consolidate the two proceedings, defendant filed a petition for post-conviction relief, arguing that his death sentence should be vacated because, had the two proceedings been combined, a majority of the Court would have voted to overturn his death sentence and impose a life sentence.

In resolving that issue, we must determine whether a Justice's proportionality review determination is part of his or her penalty review vote or whether the two reviews, although now consolidated, are distinct. We conclude that the two votes must be combined because they are aspects of the same determination -- whether a death sentence has been properly imposed. In light of that conclusion and because we find that a combined vote of defendant's two reviews reveals that a majority of the Court voted against his death sentence, we vacate defendant's death sentence and remand to the trial court for imposition of a life sentence.

I.

The facts of this matter are discussed in detail in this Court's four previous opinions. See State v. DiFrisco (DiFrisco I), 118 N.J. 253, 255-60 (1990); State v. DiFrisco (DiFrisco II), 137 N.J. 434, 449-51 (1994); State v. DiFrisco (DiFrisco III), 142 N.J. 148, 157-59 (1995), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996); State v. DiFrisco (DiFrisco IV), 174 N.J. 195, 203-16 (2002), cert. denied, 537 U.S. 1220, 123 S.Ct. 1323, 154 L.Ed. 2d 1076 (2003). Thus, we recite briefly only those facts relevant to this appeal.

On August 12, 1986, defendant entered Jack's Pizzeria in Maplewood and shot the owner, Edward Potcher, five times at close range, mortally wounding him. Approximately one year later, the New York City police arrested defendant in an unrelated matter at which time he confessed to the killing, telling police that he had been hired to kill Potcher for $2,500. A grand jury subsequently indicted defendant for capital murder. The County Prosecutor then filed notice that he would seek to prove three aggravating factors to support a death sentence: "outrageously or wantonly vile" murder, N.J.S.A. 2C:11-3c(4)(c); murder for hire, N.J.S.A. 2C:11-3c(4)(d); and murder to escape the detection of another crime, N.J.S.A. 2C:11-3c(4)(f). Thereafter, defendant pled guilty to capital murder and, pursuant to N.J.S.A. 2C:11-3c(1), waived a jury for the penalty phase of his trial. At the penalty-phase proceeding, the judge sentenced defendant to death.

Defendant appealed his conviction and sentence and, in DiFrisco I, supra, the Court affirmed the conviction but reversed his death sentence, finding that the State had failed to introduce any independent proof of the murder for hire aggravating factor. 118 N.J. at 279-83. The Court then remanded the matter for a new penalty-phase proceeding. Id. at 283. On remand, the trial court resentenced defendant to death after a jury unanimously found one aggravating factor -- that defendant had committed the murder for hire -- and that the aggravating factor outweighed all mitigating factors.

Defendant again appealed his death sentence, and, in a four-to-three decision, this Court affirmed the sentence. DiFrisco II, supra, 137 N.J. at 508. In that decision, Chief Justice Wilentz and Justices Garibaldi, Pollock, and O'Hern voted to affirm the death sentence, ibid., while Justices Handler, Clifford, and Stein dissented, voting to vacate the death sentence and impose a life sentence, id. at 534 (Handler, J., dissenting). One year later, the Court conducted its proportionality review of defendant's sentence and, by a vote of five-to-two, affirmed the sentence. DiFrisco III, supra, 142 N.J. at 159. Writing for the majority, Justice Garibaldi was joined by Chief Justice Wilentz and Justices Pollock, Stein, and Coleman -- Justice Coleman having replaced Justice Clifford after Clifford's retirement from the Court. Id. at 210.

Justice Handler again dissented. Id. at 212 (Handler, J., dissenting). Justice O'Hern, who had voted to affirm the sentence on direct appeal, this time dissented, determining that the death sentence was disproportionate "because offenders such as defendant . . . usually receive life sentences." Id. at 246 (O'Hern, J., dissenting).*fn1

The following year, defendant filed a post-conviction relief (PCR) petition, arguing that he was denied effective assistance of counsel during the penalty phase of his trial. The PCR court denied that petition and we affirmed. DiFrisco IV, supra, 174 N.J. at 246. During the pendency of defendant's petition, this Court decided In re Proportionality Review Project, in which we held that the proportionality review of a capital sentence should be consolidated with a defendant's direct death penalty appeal. 161 N.J. 71, 97 (1999). In 2003, defendant filed a second PCR petition. The trial court denied that petition and this appeal ensued. Defendant also filed a writ of habeas corpus with the United States District Court for the District of New Jersey, which that court has held in abeyance pending exhaustion of defendant's state court appeals.

II.

As an initial matter, we first consider the State's argument that defendant is procedurally barred from bringing this petition because of the five-year time limitation in Rule 3:22-12. That Rule provides:

(a) General Time Limitations. A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.

(b) Capital Causes; Petition. In cases in which the death penalty has been imposed, defendant's petition for post-conviction relief must be filed within thirty days of the denial of certiorari or other final action by the United States Supreme Court in respect of defendant's direct appeal.

[R. 3:22-12.]

Paragraph (b), addressing PCR petitions in capital causes, was added in 2002, Pressler, Current N.J. Court Rules, comment on R. 3:22-12 (2005), and this appeal is the first opportunity for the Court to consider what effect, if any, that amendment has on PCR petitions in capital causes. We find that, for capital causes, the Rule is susceptible to at least two interpretations. Under one interpretation, capital causes would be governed exclusively by paragraph (b). Accordingly, the Rule would require capital defendants to file a PCR petition within "thirty days of the denial of certiorari or other final action by the United States Supreme Court in respect of defendant's direct appeal," R. 3:22-12. Capital defendants then could file subsequent PCR petitions unrestrained by the time limitations of paragraph (a).

However, paragraph (b) also could be read in conjunction with the time limitations provided in paragraph (a). Therefore, under paragraph (b), capital defendants would have thirty days from final court action to file their first PCR petition. Subsequent PCR petitions then would have to satisfy the time limitations provided in paragraph (a). That interpretation is supported by reference to Rule 2:9-3(a). That Rule was amended at the same time as Rule 3:22-12 and provides for a stay of a death sentence pending appellate review "during the pendency of a first petition for post-conviction relief that is filed within thirty days after the United States Supreme Court's disposition." R. 2:9-3(a)(2) (emphasis added). Further, common sense suggests that the addition of paragraph (b) could not have been intended to eviscerate the five-year time limitation of paragraph (a) for capital causes but instead was intended to refine that limitation. Accordingly, we find that the latter interpretation must govern and that paragraph (b) properly applies to a capital defendant's first PCR petition. We also refer the issue to the Trial Judges Committee on Capital Causes to draft appropriate language that conforms with our holding.

Turning to the present matter, because this is defendant's second PCR petition, the five-year time limitation in paragraph (a) governs this appeal. Pursuant to that limitation, the relevant time period for defendant to file his second PCR petition was five years from the date of his death sentence on February 5, 1993. See State v. Goodwin, 173 N.J. 583, 594 (2002) ("The five-year period commences from the time of the conviction or the time of the sentencing, whichever the defendant is challenging."). Although defendant's petition would be barred under the five-year limitation because he filed it on August 1, 2003, which is more than ten years after the trial court's February 5, 1993, death sentence, defendant's petition is not barred if his failure to file it before the expiration of the time limit was due to excusable neglect or if barring his petition would result in an injustice under Rule 1:1-2.

This Court has held that "[t]he five-year time limit is not absolute," State v. Milne, 178 N.J. 486, 492 (2004), and Rule 3:22-12 specifically provides an exception for instances in which "the delay . . . was due to defendant's excusable neglect." We issued our decision in In re Proportionality Review Project, the decision on which defendant bases his current claim, in 1999. At that time, defendant's five-year statutory limitation period, having ended on February 5, 1998, had already expired. Thus, it was by then too late for defendant to meet the five-year deadline. Although the State argues that defendant could have amended his first PCR petition -- which he filed in 1996, but which was still on review after In re Proportionality Review Project was decided -- we accept defense counsel's candid statement at oral argument that he did not realize the full effect of that decision ...


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