February 28, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES WILLIAMS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 1839-81, 1842-81, 1848-81.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 29, 2008
Before Judges Coburn and Grall.
Defendant James Williams appeals from an order denying his petition for relief from three judgments of conviction entered in 1982. On a prior appeal from an order dismissing defendant's 1997 petitions for post-conviction relief (PCR) from these judgments, we remanded because defendant's request for legal representation had been denied. State v. Williams, No. A-4519-98 (App. Div. Nov. 22, 2000) (slip op. at 3) (hereinafter Williams). On remand, defendant did not establish that the delay was due to his excusable neglect and did not articulate facts demonstrating a serious question of "injustice." R. 3:22-12; State v. Mitchell, 126 N.J. 565, 580 (1992). Accordingly, we affirm.
In 1982, defendant was tried separately on four separate indictments involving four separate criminal episodes in 1981. Williams, supra, slip op. at 1-2. Three of the indictments charged first-degree robbery and related offenses involving possession of a handgun -- indictments 1842-81, 1848-81 and 1839-81. Id. at 2. The fourth indictment charged felony murder, aggravated assault, first-degree robbery and related offenses involving possession of a handgun -- indictment 1702-81. Ibid. At the time of his arrest, defendant gave a statement acknowledging his role in each of the criminal episodes. A hearing on the admissibility of the statement was conducted prior to each trial, and the relevant portion of the statement was admitted into evidence at each of the separate trials. Each of the four juries found defendant guilty. The 1982 convictions were affirmed on four separate appeals, the last of which was decided on January 14, 1987. Id. at 2. On the direct appeals, when that issue was raised, this court rejected defendant's claim that the trial court erred in admitting the statement he made at the time of his arrest. State v. Williams, No. A-1189-82 (App. Div. June 17, 1985) (Indictment 1842-81); State v. Williams, No. A-1433-82 (App. Div. Mar. 19, 1982) (Indictment 1848-81); State v. Williams, No. A-1856-82 (App. Div. Jan. 14, 1987) (Indictment 1839-81). By October 7, 1987, all petitions for certification that were filed on defendant's behalf had been denied. See Williams, supra, slip op. at 2.
In 1997, nearly ten years after defendant's last petition for certification was denied and nearly fifteen years after the convictions were entered, defendant filed four separate petitions for post-conviction relief and asked the trial court to appoint counsel. Ibid. Concluding that defendant's petitions were time-barred by reason of Rule 3:22-12, the trial court denied all relief. Ibid. Defendant appealed and this court reversed on the ground that defendant was entitled to representation on his first petition for PCR. Id. at 3; see R. 3:22-6(a).
On November 29, 2004, the trial court considered and denied defendant's request for relief from his conviction on the felony murder indictment, 1702-81. We affirmed that order on appeal, and the Supreme Court denied certification. State v. Williams, No. A-2681-04 (App. Div. Mar. 15), 187 N.J. 82 (2006).
This appeal is from the denial of defendant's petition for relief from the convictions entered on indictments 1842-81, 1848-81 and 1839-81.
Defendant offered the following explanations for his failure to file a petition for PCR before May 1997: he did not have an adequate education; he did not obtain the trial transcripts until 1987; he did not know what to do with the transcripts on his own; his appellate counsel did not speak to him; and he was distressed by a series of deaths in his family -- a sister in 1988, a brother and his mother in 1990 and his father in 1991.
Defendant offered several reasons for his claim that he was entitled to relief from his three convictions for first-degree robbery. He asserted that he was illegally arrested and questioned by the police, and he claimed that he did not have effective assistance of trial counsel. He did not point to anything that the attorney who represented him at these three trials did or failed to do.*fn1 Defendant simply claimed that because he was assigned new counsel shortly before the first of the three consecutive trials, his attorney did not have time to consult with him or prepare for the trials.*fn2 Defendant asserted that he, defendant, did not know what charges would be considered at any one of the trials until the time of jury selection.
After considering the foregoing assertions and arguments presented in support of defendant's petition for relief from his convictions on indictments 1842-81, 1848-81 and 1839-81, Judge Kennedy concluded that defendant did not establish grounds for relaxation of Rule 3:22-12. In making that determination, the judge considered: the extraordinary delay; defendant's inability to explain why he waited until 1997 to file his first petition; and the obvious prejudice to the State. The judge also considered the insubstantial nature of the claims defendant asserted; he noted that this court had rejected defendant's challenges to the admissibility of his statements on direct appeal and that defendant pointed to nothing that his attorney did or failed to do that was either inconsistent with professional standards or capable of changing the outcome of any of the three trials. On that basis, the judge concluded that there was no "injustice" that would warrant consideration of the untimely petition.
Defendant raises the following issues on appeal:
I. MR. WILLIAMS WAS DEPRIVED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
II. THE TRIAL COURT ERRED BY NOT CONDUCTING AN EVIDENTIARY HEARING. III. MR. WILLIAMS WAS DEPRIVED EFFECTIVE ASSISTANCE OF APPELLATE AND PCR COUNSEL.
IV. THE CUMULATIVE EFFECT OF THE AFOREMENTIONED INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS WARRANTS REVERSAL AND NEW TRIALS.
V. MR. WILLIAMS' DELAY IN FILING HIS PCR BEYOND THE FIVE YEAR PERIOD WAS DUE TO EXCUSABLE NEGLECT AND ADHERENCE TO THE PROCEDURAL BAR WOULD RESULT IN AN INJUSTICE.
Judge Kennedy's determinations are consistent with controlling legal principles. For that reason, we reject the argument raised in Point V.
Rule 3:22-12 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.
As the Supreme Court has explained:
[A] court should only relax the bar of Rule 3:22-12 under exceptional circumstances. The court should consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an "injustice" sufficient to relax the time limits. Absent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay. As time passes, justice becomes more elusive and the necessity for preserving finality and certainty of judgments increases. [State v. Afanador, 151 N.J. 41, 52 (1997) (internal citations omitted).]
Defendant's remaining arguments lack sufficient merit to warrant more than the brief comments that follow. R. 2:11-3(e)(2).
In Point I, relying upon Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), defendant contends that his attorney was not given adequate time to prepare for these back-to-back trials. This case is not comparable to Powell, in which the defendants were tried for a capital crime in a one-day trial that commenced within one week of their indictment. As Judge Kennedy noted, defendant points to no witness or defense that his attorney overlooked or failed to investigate. See State v. Castagna, 187 N.J. 293, 313-14 (2006) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed. 2d 674, 693, 698 (1984)); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the standard for measuring ineffective assistance enunciated by the Supreme Court in Strickland).
In Point II, defendant argues that he should have been allowed an evidentiary hearing to establish that his attorney did not investigate the crimes or consult with him in a meaningful fashion. Discovery is not the purpose of an evidentiary hearing; an evidentiary hearing is required only when necessary to resolve disputed facts that, when viewed most favorably, would entitle a defendant to relief. See State v. Marshall, 148 N.J. 89, 158 (quoting State v. Preciose, 129 N.J. 451, 462-63 (1992)), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997). Because defendant sought relaxation of the time-bar imposed by Rule 3:22-12, he was required to "articulate facts that demonstrate a serious question about his . . . guilt . . . and [to be] prepared to provide factual evidence to support it . . . ." State v. Mitchell, 126 N.J. 565, 580 (1992); see also Afanador, supra, 151 N.J. at 52. His generalized allegations about his attorney's representation do not meet that standard.
In Point III, defendant asserts that his attorney on direct appeal from his conviction on indictment 1839-81 and his counsel on this petition for post-conviction relief were ineffective because they did not raise error in the jury charge that was given at that trial. This court generally does not consider claims of ineffective assistance raised, as here, for the first time on appeal. See Preciose, supra, 129 N.J. at 462. Nonetheless, on the record that is before us it is clear that this claim does not raise a genuine question of "injustice" that would warrant relaxation of Rule 3:22-12. Accordingly, we address and reject the argument.
Indictment 1839-81 included six counts alleging first-degree robbery involving six victims at one crime scene. The judge submitted the question of first-degree robbery to the jurors in one count, without expressly directing the jurors to consider defendant's guilt with respect to each victim. The jurors found defendant guilty, and the judgment of conviction reflects one conviction, not six, for first-degree robbery. The sentence imposed for the conviction on indictment 1839-81 is fully concurrent with the sentence imposed as a consequence of defendant's conviction on indictment 1848-81. See State v. Williams, No. A-1856-82 (slip op. at 6) (App. Div. Jan. 14, 1987).
Despite defendant's confession, at this trial he presented defenses of misidentification and alibi. Three witnesses for the defense testified that defendant was playing cards with them at the time of the crime. There was no dispute about the role played by the perpetrator whom the State alleged was defendant. The central question was whether defendant was that perpetrator. On the central question, the jury credited the State's witnesses and defendant's confession, not his alibi witnesses. Assuming, without deciding, that the judge erred by directing the jurors to consider the charges of robbery in a single count, it is clear that the error could not have had any impact on the outcome of this trial. R. 2:10-2. Because the error was, beyond a reasonable doubt, not capable of changing the verdict, defendant cannot show that he would have fared better if any of his attorneys, at any stage of the this protracted litigation, objected to the instruction. See Castagna, supra, 187 N.J. at 313-14.