October 3, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DELROY ELLIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 97-01-0015.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2007
Before Judges Parrillo and Sabatino.
Defendant Delroy Ellis appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Tried by a jury, defendant was convicted of conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 (count one); robbery, N.J.S.A. 2C:2-6 and 2C:15-1a(1) or 2C:15-1a(2) (count two); burglary, N.J.S.A. 2C:2-6 and 2C:18-2b(1) or 2C:18-2b(2) (count three); criminal restraint, N.J.S.A. 2C:2-6 and 2C:13-2a or 2C:13-2b (count four); aggravated assault, N.J.S.A. 2C:2-6 and 2C:12-1b(4) (count five); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:2-6 and 2C:39-4a (count six); unlawful possession of a weapon, N.J.S.A. 2C:2-6 and 2C:39-5b (count seven); and possession of hollow nose bullets, N.J.S.A. 2C:2-6 and 2C:39-3f (count eight).
The events that led to these convictions occurred on September 6, 1996, when defendant, along with Michael Francis, entered the Passaic County home of Salvatore Aliano, pressed a gun against his head, demanded that he give them money and drugs, ordered him to lie on the basement floor, and taped his hands, feet and mouth with duct tape. After taking Aliano's son's cell phone, which was sitting on a nearby table, the men then began searching the house for valuables. Aliano was subsequently able to free himself and summon the police. Shortly thereafter, officers apprehended defendant in Aliano's backyard. A .40 millimeter semi-automatic handgun was found in defendant's waistband, and Aliano's son's cell phone was also recovered from defendant.
On January 16, 1998, defendant was sentenced to an aggregate term of thirty years in prison with a fifteen-year period of parole ineligibility. A judgment of conviction reflecting this sentence was signed by the trial judge on January 21, 1998, and file-stamped January 22, 1998.
Defendant appealed his conviction and sentence. On July 16, 1999, we affirmed defendant's conviction, but reduced his sentence to twenty years imprisonment with a ten-year period of parole ineligibility. State v. Ellis, No. A-3606-97T4 (App. Div. July 16, 1999) (slip op. at 7-12). On November 24, 1999, defendant's petition for certification to the New Jersey Supreme Court was denied. State v. Ellis, 162 N.J. 489, 489 (1999).
Defendant filed a petition for post-conviction relief in the Superior Court, Law Division, on January 22, 2003,*fn1 exactly five years to the date his judgment of conviction was file-stamped. Defendant's amended verified petition for post- conviction relief, by his assigned counsel, sought relief on the following grounds:
a) Petitioner was denied the effective assistance of counsel at the trial level because his trial attorney failed to conduct an investigation and failed to interview witnesses;
b) Petitioner received the maximum first-degree sentence with the maximum period of parole ineligibility in violation of his federal and state rights to [prove] beyond a reasonable doubt and a jury trial because the aggravating factors were not found by a jury.
After hearing argument, the PCR judge, who was the same judge who presided over defendant's criminal trial and who sentenced him, concluded that the petition was filed beyond the five-year period established by Rule 3:22-12, and that there was no excusable neglect to justify a relaxation of the time bar. Nevertheless, the judge made alternative findings with respect to defendant's substantive arguments, rejecting the ineffective assistance of counsel claims and finding that trial counsel was "extremely prepared and tried an excellent case." Moreover, the judge reasoned that counsel's failure to investigate whether Aliano's son, Pietro, had been a Sheriff's officer or whether the gun found on defendant actually belonged to the son could have had no possible effect on the outcome of the case. As to the sentencing issue, the judge concluded that the Supreme Court's holding in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403, reh'g denied, 542 U.S. 961, 125 S.Ct. 21, 159 L.Ed. 2d 851 (2004), had no impact on defendant's case because the aggravating factors on which she relied arose from the "nature and circumstances" of the case.
On appeal from the Law Division's March 2, 2005 order denying his PCR petition, defendant now argues for the first time ineffective assistance of PCR counsel and reiterates the contention that his sentence is not in conformance with State v. Natale, 184 N.J. 458 (2005). We find no merit in either claim. R. 2:11-3(e)(2).
As a threshold matter, we disagree with the PCR judge's determination that defendant's PCR petition is time-barred by Rule 3:22-12. The PCR judge calculated the timeliness of defendant's petition based upon the date of his original sentencing, January 16, 1998. That calculation, however, does not comport with the requirement of Rule 3:22-12(a), which provides:
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.
"The five-year period prescribed by [R. 3:22-12(a)] commences when the judgment of conviction is entered and is neither stayed nor tolled by appellate or other review proceedings." Pressler, Current N.J. Court Rules, comment 1 on R. 3:22-12(a) (2008) (citing State v. Dillard, 208 N.J. Super. 722, 726-27 (App. Div.), certif. denied, 105 N.J. 527 (1986)). The date is "the date of actual entry of the judgment of conviction, not the date on which the jury returned its verdict." Ibid. (citing State v. Riley, 216 N.J. Super. 383, 389 (App. Div. 1987)). In Riley, the court considered the judgment of conviction to have been entered on the date it was filed. 216 N.J. Super. at 389.
Here, defendant's judgment of conviction was signed by the trial judge on January 21, 1998, but not filed until January 22, 1998. The petition for post-conviction relief was filed on January 22, 2003 and therefore is within the five-year time limit prescribed by the rule. Thus, the court erred in its time calculation, and necessarily in its imposition of the Rule 3:22-12(a) time bar.
We also reject the State's argument that defendant's substantive claim of ineffective assistance of PCR counsel is barred as never raised before the PCR court, where he claimed only ineffective assistance of trial counsel. Simply stated, such claims are not barred by court rule. See State v. Castagna, 187 N.J. 293, 313 (2006) (noting that while our courts have expressed a general policy against entertaining ineffective assistance of counsel claims on direct appeal, such an issue may be considered when the trial itself provides an adequately developed record upon which to evaluate the defendant's claims).
That said, we find defendant's claim, although cognizable, to be without merit. Without question, a defendant is entitled to effective assistance of counsel assigned to represent him on a first PCR application. State v. Velez, 329 N.J. Super. 128, 132-33 (App. Div. 2000); State v. Clark, 260 N.J. Super. 559, 562 (App. Div. 1992). "At a minimum, assigned counsel must communicate with his client, fashion the most effective arguments possible, amend the petition when warranted, and inspect the trial record." Velez, supra, 329 N.J. Super. at 133 (citing Clark, supra, 260 N.J. Super. at 563). A first PCR petition should "raise all fairly arguable issues at the time the petition is heard[,]" ibid.; and in fact counsel should advance any grounds insisted upon by defendant notwithstanding that counsel deems them without merit. See State v. Rue, 175 N.J. 1, 19 (2002). Of course, once the claim has been asserted, PCR counsel "may choose to stand on it at the hearing, and is not required to further engage in expository argument." Ibid.
Obviously, "[n]either the Sixth Amendment nor our rules call for an attorney to be 'effective' in terms of crafting a defense when none actually exists." Velez, supra, 329 N.J. Super. at 133. Rather, all that is required is that PCR counsel give his or her best efforts in the client's cause. Ibid.
Measured by this standard, defendant has simply failed to make a prima facie demonstration that PCR counsel's performance was substandard, let alone that the claimed performance deficiencies actually inured to his prejudice. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed. 2d 864 (1984); State v. Fritz, 105 N.J. 42, 58 (1987); see also State v. Preciose, 129 N.J. 451, 463-64 (1992); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Here, defendant essentially contends that PCR counsel was ineffective because he failed to account for defendant's possession of the handgun when he was arrested and, as support, simply points to his certification, filed nearly two years after his PCR petition was heard, to the effect that he went to the victim's house unarmed to collect a drug debt from Pietro, who then started struggling with defendant. Yet nothing in defendant's certification explains how he came into possession of the gun or, for that matter, the victim's son's cell phone. Certainly nothing in defendant's certification supports defendant's unfounded intimation that the gun was Pietro's. As the PCR judge noted in rejecting a similar argument raised in connection with defendant's claim of ineffectiveness of trial counsel:
Do I think [Pietro] was probably employed as a Sheriff's officer? Yes, I do. I do believe he was very probably employed as a Sheriff's officer, but I also believe that that is why Mr. Aliano, Sal Aliano, indicated that it looked like my son's revolver or my son's gun when he was a Sheriff's officer or police officer.
Now I think there is some suggestion in the post-conviction relief motion and perhaps in the trial. And, again, [defense counsel] had a very difficult task because he was trying to suggest defenses through cross-examination. His defendant did not testify. He had no other independent witnesses. But it is my sense that there was some suggestion that this may have been his son's service gun, that perhaps it became involved in a fracas in the house. There was suggestion that the redness on his hands in the knuckle area were the result of a fight, not as a result of duct tape.
There was some suggestion that the son had been present. At one point [defense counsel] asked Mr. Aliano, didn't you and your son run out of the house when this fight got -- or spilled over, et cetera. So there was certainly ample suggestion that the son was somehow involved. Mr. Aliano adamantly denied that his son had any involvement. At one point he said, why are you bringing my son into the middle of this. Assuming that he may have been a Sheriff's officer[,] it is absolute basic, basic procedure that if someone, for whatever reason -- and I have no idea why he did not stay as a Sheriff's officer for apparently a long period of time or didn't stay for a long period of time. Certainly any service revolver would be turned back in to the Sheriff's Department. Someone does not resign and then the sheriff say[s] well, keep your gun. That absolutely does not happen, so I cannot imagine how, under any circumstances, this could be his original service revolver that somehow was still in the house and became involved in this fracas.
Secondly, the Prosecutor asked one of the detectives, was there an ATS trace ever performed on this gun, and the officer answered yes, there was, and that the best they could say was that it was originally sold through a shop in Alabama, but they were not able to trace it beyond that. As the Prosecutor pointed out in her summation, very correctly, if this were a police service revolver, certainly it would not have been bought at a shop in Alabama, and they would have a complete record of the history of this gun. So I am totally convinced that this was not Pietro Aliano's original service gun.
Again, was he a Sheriff's officer? Possibly. Or probably. Very probably he was a Sheriff's officer, but in no way do I think this had anything to do with what went on in that house.
Under the circumstances, we are persuaded that defendant's certification meets neither the performance nor prejudice prong of the Strickland/Fritz test.
We also reject defendant's final claim that this matter should be remanded for resentencing pursuant to State v. Natale, 184 N.J. 458 (2005), because he was sentenced to a term in excess of the presumptive based on the court's evaluation of aggravating and mitigating factors. In determining whether its new rule of law concerning presumptive sentencing should be applied retroactively, the Natale court applied the retroactivity factors set forth in State v. Johnson, 166 N.J. 523, 546-47 (2001). Supra, 184 N.J. at 493-94. It concluded that "'[p]ipeline retroactivity'--applying our holding to defendants with cases on direct appeal as of the date of this decision [August 2, 2005] and to those defendants who raised Blakely*fn2 claims at trial or on direct appeal--best balances principles of fairness and repose." Id. at 494. Here, defendant did not raise a Blakely claim on direct appeal, and does not claim that he raised such an issue at trial. As such, the PCR court did not err in concluding that Blakely had no impact on defendant's sentencing, and correspondingly defendant has failed to demonstrate any entitlement to relief under Natale.