February 11, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TYLEAKEA PRICE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Hudson County, 99-04-0525.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 7, 2008
Before Judges Collester and C.L. Miniman.
Defendant Tyleakea Price appeals from the denial of her application for post-conviction relief. Because her application was not timely filed and she failed to meet her burden to prove ineffective assistance of counsel, we affirm.
Defendant pled guilty on August 2, 1999, to one charge of armed robbery in exchange for which the State dismissed the two remaining counts of the indictment. Defendant was sentenced on January 13, 2000, to serve twenty years in state prison with an NERA 85% parole disqualifier and applicable assessments. The sentence ran concurrent to a violation-of-probation sentence then being served by defendant. The sentencing judge found no mitigating factors and four aggravating factors. Defendant appealed her sentence, challenging the rejection of mitigating factors, the constitutionality of NERA, the imposition of a first-degree sentence and the excessiveness of the sentence. We affirmed the sentence on direct appeal on November 29, 2000.
Defendant filed her first petition for post-conviction relief on July 7, 2005. She alleged ineffective assistance of plea counsel and sought to retract her guilty plea to armed robbery of a receptionist at a doctor's office on December 10, 1998. An evidentiary hearing was conducted by Judge Francis B. Schultz on June 15 and July 24, 2006. Defendant and three witnesses, including her plea counsel, testified at the hearing. Defendant professed her innocence and testified that she only pled guilty because her plea counsel told her that the eighty-year-old victim had identified her and she had no other choice but to take the plea offer. She also testified that, had she known the victim did not identify her after her arrest, she would have gone to trial.
Defendant's plea counsel, Margaret R. Murphy, testified that defendant was facing a life sentence under the Three Strikes Law for first- or second-degree robbery and was also subject to NERA so that she would serve 85% of whatever sentence she received. She explained that she did not order an investigation because defendant was interested in taking a plea offer and did not profess her innocence. On cross-examination, she stated that it was her understanding that the victim knew the defendant from contacts they had prior to the crime and, thus, did not believe there was an identification issue in the case. She admitted that she would be surprised to learn that the victim never identified defendant.
Defendant and the State submitted, among other items, the police reports and defendant's statement to the police. Those reports indicate that on December 11, 1998, Marian Smith, the victim, reported that the female perpetrator entered the office of Dr. Theodore Saxe, a urologist located at 2777 Kennedy Boulevard, Jersey City, on December 10, 1998, and struggled with the victim in an attempt to remove money from the victim's purse. The perpetrator then slashed the victim on the face with a letter opener, removed money from her purse and fled from the office. The next day the perpetrator returned to the office of Dr. Saxe. Thomas Hairston recognized the perpetrator and called for the victim, who came out and identified the perpetrator. The perpetrator then threw the victim on the floor, stating "I'll kill this bitch" while choking her. Hairston went to assist the victim and the perpetrator closed herself in an examination room, then fled through the office, taking $20 in cash from the desk and the victim's coat.
In defendant's statement she admitted going to the office of Dr. Theodore Saxe, a urologist located at 2777 Kennedy Boulevard, Jersey City, twice on December 11, 1998, but denied going there on the tenth. She admitted grabbing a letter opener from the secretary on the eleventh but denied assaulting or robbing anyone. She stated that she had been there numerous times and the secretary gave her money "with no problem." She admitted to a confrontation with the "security guard" but claimed that she had returned a second time and that the secretary then gave her $10. At her plea allocution defendant admitted going to the doctor's office on December 10, 1998. She admitted that she took money from Meredith Smith, the receptionist, and threatened her with a letter opener but did not remember actually cutting her with it. However, she testified at that time that she did not question the accuracy of the police report that indicated she had been cut.
The PCR judge found that defendant had not shown what an investigation would have revealed. Although he found that there was no post-arrest identification of defendant, the victim had identified the perpetrator on December 11, 1998, as the same perpetrator who assaulted and robbed her on December 10, 1998. He found that, while defendant was being transported to police headquarters following her arrest, she said "I'm going to cut that old lady again, I'm going to do that old lady the right way this time." He found this statement consistent with defendant's act in cutting the victim on December 10, 1998. The judge also found that defendant acknowledged in her statement to the police being in Dr. Saxe's office on the eleventh. She also admitted at her plea allocution that she had been there on the tenth and committed all of the elements of the crime. The judge concluded that defendant's testimony claiming that she was forced to plead guilty by her counsel was not credible in the face of the many statements defendant made inculpating herself in the crime on December 10, 1998. The judge concluded that defendant had not met her burden of proof. He also concluded that defendant's application was time-barred and no justification supported relaxing the bar. This appeal followed.
Defendant raises the following issues for our consideration:
POINT I - THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT POST-CONVICTION RELIEF AS THE EVIDENCE DEMONSTRATED THAT APPELLANT'S TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE.
POINT II - THE TRIAL COURT ERRED IN FINDING THAT APPELLANT'S PETITION WAS BARRED BY R. 3:22-12.
POINT III - THE TRIAL COURT ERRED IN DENYING APPELLANT'S REQUEST TO SUBPOENA DR. FRANK ZOLLI, AN OUT OF STATE RESIDENT.
POINT IV - APPELLANT WAS ENTITLED TO POST-CONVICTION RELIEF BECAUSE OF THE IMPROPRIETIES OF THE SENTENCE.
After carefully reviewing the record in the light of the written and oral arguments advanced by the parties, we conclude that defendant's arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by the trial judge in his oral opinion delivered on July 24, 2006. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. State v. Locurto, 157 N.J. 463, 471 (1999). We add only the following:
In order to make out a prima facie claim for post-conviction relief "when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Defendant failed to conduct the investigation on which she rests her claim of ineffective assistance of plea counsel. We do not have a certification from an investigator or the victim herself raising a reasonable doubt about the identification of defendant as the perpetrator. Absent such evidence, which would be difficult or impossible to obtain from a victim who was eighty years old at the time of the crime, defendant cannot meet her burden of proof. Ibid. Certainly, absent such evidence defendant would not be entitled to withdraw her plea. State v. Howard, 110 N.J. 113, 122 (1988) (holding that a plea agreement may be withdrawn if the defendant is able to demonstrate that he or she was misled about a material element of the negotiation); State v. Fisher, 38 N.J. 40, 48 (1962) (after sentencing, guilty pleas may only be withdrawn to correct a "manifest injustice.")
Furthermore, the petition was filed more than five years after the judgment of conviction was entered. R. 3:22-12(a). That rule 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.
There is not a shred of evidence of excusable neglect in the record before us. Relaxation of this rule is permitted under "exceptional circumstances." State v. Mitchell, 126 N.J. 565, 580 (1992). In such a case the court must weigh "the extent and cause of the delay, the prejudice to the State, and the importance of petitioner's claim in determining whether there has been an 'injustice' sufficient to relax the time limits." Ibid. We are satisfied that the record before us does not support any relaxation of the R. 3:22-12(a) time bar.
Because the PCR judge did not address the PCR sentencing issues, we address them briefly here. Defendant contends that the trial court erred in balancing the mitigating and aggravating factors and imposed the NERA and sentencing enhancements based on facts not in the record in violation of her due process rights. These issues either could have been or indeed were raised in her direct appeal from the sentence. As a consequence, they are now barred from being raised to obtain post-conviction relief. R. 3:22-4, -5.
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