October 17, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EDWARD KIMLEY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 84-04-0204.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 3, 2007
Before Judges Lisa and Simonelli.
Defendant appeals from an order denying his petition for post-conviction relief (PCR). The subject of the petition was a conviction entered on September 26, 1986 for third-degree theft, N.J.S.A. 2C:20-3. Judge Farrell found defendant's petition deficient because it was time-barred and, alternatively, because it was lacking in substantive merit. The judge did not grant an evidentiary hearing.
On appeal, defendant argues:
THE COURT ERRED IN DENYING DEFENDANT-APPELLANT'S APPLICATION FOR POST-CONVICTION RELIEF; DEFENSE TRIAL COUNSEL WAS INEFFECTIVE AND DEFENDANT-APPELLANT WAS PREJUDICED THEREBY. IN THE ALTERNATIVE, THE COURT SHOULD HAVE GRANTED DEFENDANT-APPELLANT AN EVIDENTIARY HEARING ON THIS ISSUE.
THE DEFENDANT-APPELLANT'S PLEA WAS NOT ENTERED KNOWINGLY; THEREFORE THE COURT ERRED IN DENYING DEFENDANT-APPELLANT'S APPLICATION TO WITHDRAW HIS PLEA OF GUILTY.
THE FINDING THAT THE MOTION FOR POST-CONVICTION RELIEF WAS TIME-BARRED WAS IN ERROR; THE DEFENDANT COULD NOT HAVE KNOWN EARLIER THAT HIS COUNSEL FAILED TO PROVIDE HIM WITH RELEVANT INFORMATION.
We reject these arguments and affirm.
In September 1986, defendant was the subject of four open indictments in Cumberland County. He had recently been convicted under another Cumberland County indictment and sentenced in August 1986 to four years imprisonment with a two-year parole disqualifier. On September 15, 1986, one of the four open indictments, Indictment No. 84-04-0204, came on for trial. The jury was about to be selected. The two-count indictment charged defendant with third-degree burglary, N.J.S.A. 2C:18-2, and fourth-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3a.
Rather than going to trial, defense counsel and the prosecutor successfully negotiated a global settlement that would dispose of all four open indictments. A plea agreement was entered by which the burglary count in Indictment No. 84-04-0204 would be amended to third-degree theft. Defendant would plead guilty to that charge, with a recommended sentence of three years imprisonment to be served concurrently with the sentence imposed one month earlier. The remaining count of Indictment No. 84-04-0204 and all charges in the three other open indictments would be dismissed. The agreement also contained additional consideration, by which the prosecutor agreed not to pursue additional charges against defendant based upon certain information and investigations.
Defendant pled guilty to the amended theft charge and acknowledged his understanding of the plea agreement and the rights he was waiving by pleading guilty. He also acknowledged that his conduct was voluntary, that he was satisfied with the services of his attorney, that he had sufficient time to discuss the matter with his attorney, and that his attorney explained to him his potential defenses to the charges contained in Indictment No. 84-04-0204. He gave this factual basis:
Q: Mr. Kimley, you're charged with on or about November 5, 1983 with taking from Bianco Brothers an automobile that was impounded by the police department and left at Bianco Brothers, that belonged to your mother. Tell the Judge what makes you feel you're guilty of theft?
A: Me and Durham, Wayne Durham, went up there. And we stopped in front of Bianco's. Wayne got out, went in the yard, got the car and brought it out. I got out of Shellie's car, went to mine. He went to Shellie's. And we left.
Q: You knew the car was impounded at that time?
Q: You didn't have any permission to go on the property at that time to get the car, did you?
On September 26, 1986, defendant was sentenced in accordance with the recommendation in the plea agreement. The hindering count in Indictment No. 84-04-0204 and the other three indictments were dismissed. Defendant served his sentence. He did not appeal.
More than eighteen years after his conviction, on December 6, 2004, defendant filed his PCR petition. His motivation for doing so was that he incurred federal charges for which he was found guilty and that his sentence was going to be enhanced because of prior convictions, including this one. Defendant contended that in conjunction with his federal sentencing, he received in February 2001 a federal presentence report, which contained "complete discovery" pertaining to his conviction under Indictment No. 84-04-0204. Defendant contended that the discovery consisted of a police report, which he had not seen at the time of his plea in 1986. He further contended that if he would have seen that report, he would not have pled guilty to the theft charge. According to defendant, the police report reveals that no burglary of the Bianco Brothers' building occurred. This is because the police report reveals that the impounded vehicle had been parked in a "fenced in lot," had been removed, and "[t]he padlock on the gate had been removed and was missing." This description of the crime is consistent with the factual basis given by defendant, namely that he and his accomplice removed the vehicle from the impound lot without authorization.
Defendant submitted in the PCR proceeding certifications of the Assistant Cumberland County Prosecutor and defense attorney who negotiated the plea agreement in September 1986. Defendant had apparently been tried on two indictments, one resulting in an acquittal, and the other resulting in the conviction for which sentence was imposed in August 1986. In their certifications, both attorneys said, in parallel language, that in the cases that went to trial, complete discovery was furnished to defense counsel. However, neither attorney recollected whether or not complete discovery had been provided in "pending matters" which were not "on the trial list."
In denying the PCR petition, Judge Farrell noted that this case was about to be tried when the plea agreement was struck. Thus, it is likely that complete discovery had been provided in this case, which was trial-ready. We agree with that analysis. Further, we note that at the time of sentencing on September 26, 1986, defense counsel acknowledged that he had received the presentence report and given it to defendant to read, noting that it contained the police report.
In the PCR proceeding, defendant contended that his plea was not knowing and voluntary, that he was innocent of the theft charge, that his attorney was deficient for not obtaining and reviewing with defendant complete discovery materials, and that had his attorney performed properly, defendant would not have pled guilty. He further contended that his late filing of the PCR petition was a result of excusable neglect because, until he saw the federal presentence report, he could not have known that his attorney's conduct was deficient.
Judge Farrell rejected these contentions. He found applicable the time-bar of Rule 3:22-12(a), which requires generally the filing of a PCR petition within five years after the judgment of conviction. He further found no adequate basis for relaxation of the time-bar based on excusable neglect. Finally, he noted the extreme prejudice the State would suffer if required to prosecute in 2006 a crime that occurred in 1983.
We agree with Judge Farrell. Defendant has demonstrated no basis for relaxation of the five-year time-bar imposed by Rule 3:22-12(a). State v. Goodwin, 173 N.J. 583, 594 (2002); State v. Mitchell, 126 N.J. 565, 580 (1992). Relaxation of the time-bar should be allowed only upon the demonstration of exceptional circumstances. Goodwin, supra, 173 N.J. at 595. And, a defendant's burden to support relaxation of the five-year time-bar increases with the length of the delay beyond five years. Mitchell, supra, 126 N.J. at 580. With the passage of time, the ability to achieve justice becomes more elusive and the necessity for preserving finality of judgments increases. Id. at 575-76.
Defendant's PCR petition was filed more than eighteen years after his judgment of conviction, and nearly four years after he purportedly first saw his "complete discovery" in February 2001. Defendant received a substantial benefit from his plea agreement, which was skillfully negotiated by his trial counsel. His concurrent sentence resulted in no additional real time to be served in imprisonment, and he disposed of four indictments as well as the threat of potential new charges by virtue of the plea agreement. If the plea were vacated at this time, the four open indictments from 1986 (including this one with the original burglary charge in count one) would be reinstated and defendant would be subject to trial on all of them. We cannot help but conclude that the State would have extreme difficulties in proving these stale charges more than two decades later.
Under the circumstances, it is plain to us that no manifest injustice has occurred. Indeed, defendant received a substantial benefit. His belated assertion of innocence of the theft charge is belied by the transcript of the plea proceeding. We discern no sufficient factual predicate to support defendant's claim of excusable neglect and, certainly, exceptional circumstances do not exist for relaxation of the time-bar.
We also agree with Judge Farrell that there was no substantive merit in defendant's petition. Neither prong of the Strickland/Fritz*fn1 test have been satisfied. Defendant's bald assertion that he did not see complete discovery prior to entering his plea is unsupported by competent evidence in the record. Both attorneys in the case certified that complete discovery had been provided for defendant's cases that went to trial. And, as we have noted, the presentence report provided to defendant at his sentencing in 1986 contained a police report.
Defendant further contended in the PCR proceeding that his trial attorney told him when recommending the plea that it was "no big deal" because it would not result in additional real time and would not affect him in the future. According to defendant, this constituted misinformation regarding a collateral consequence of the plea. That consequence is the alleged enhancement of defendant's federal sentence because of this conviction. We reject this argument. We do not view the offhanded comment referring to a conviction for a relatively minor non-violent offense that will result in no additional real time, that also gets rid of multiple other charges and indictments as "no big deal" as the kind of specific misinformation about a collateral consequence that could support PCR relief.
Finally, we find no error in the denial of defendant's request for an evidentiary hearing in the PCR proceeding. Such hearings are discretionary, and need not be provided unless a defendant presents a prima facie claim of ineffective assistance by demonstrating a reasonable likelihood of succeeding under the Strickland/Fritz test. State v. Preciose, 129 N.J. 451, 462-64 (1992). No such showing was made here.