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State v. Gilbert


March 25, 2008


On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 92-04-0310.

Per curiam.


Submitted: February 27, 2008

Before Judges Axelrad, Sapp-Peterson and Messano.

Defendant Jeffrey Gilbert appeals from a November 14, 2005 order denying his petition for post-conviction relief (PCR), in which he alleged excusable neglect for his untimely filing, a violation of his constitutional right to choice of counsel, entry of an involuntary and unknowing guilty plea, ineffective assistance of trial counsel, and sentencing errors. We affirm substantially for the reasons articulated by Judge Almeida in his comprehensive letter opinion of October 28, 2005.

Between the summer of 1991 and the spring of l993, defendant was named in four indictments and two accusations issued in four counties. In a total of twenty-one counts, defendant was accused of: passing three checks totaling $3,754.95, making two fraudulent jewelry purchases, fraudulently obtaining a $3,500 personal loan, making attempts to fraudulently purchase a cell phone and an automobile, procuring three fraudulent driver's licenses, and hindering apprehension or prosecution. At defendant's request, the cases were consolidated for trial in the Burlington County Superior Court. Defendant was represented by Anne Manning of the Public Defender's office.

On June 14, 1993, the prosecutor, defendant and his public defender appeared before Judge Gaydos for a status conference, during which defendant sought additional time to consider the plea offer and obtain private counsel. The court denied the request, and after being informed by defendant that he was rejecting the plea offer, the judge scheduled the Burlington County matters for trial the following week, with the other cases to be returned to their respective counties.

Some time the same day, defendant accepted the plea offer and signed the plea forms. On June 17, 1993, defendant pled guilty to fourteen of the twenty-one counts*fn1 pursuant to the negotiated plea agreement. During the extensive plea colloquy, the then thirty-year-old defendant, who had a master's degree, recited at length his understanding of the terms and consequences of the plea, his "absolute[]" satisfaction with his trial counsel, and a factual basis for each of the charges for which he was convicted. Judge Gaydos made an express finding respecting these items. On June 17, 1993, defendant was sentenced to a five-year jail term concurrent on all charges pursuant to the negotiated plea agreement. Defendant's sole comments to the court upon sentencing was:

I have reviewed the documents, everything that Miss Manning had said before the Court today is in order. And before sentence is imposed, I just want to take this opportunity to thank [the Prosecutor] on behalf of the State, Miss Manning, and of course the Court itself for acquiescing to my request to have these matters consolidated and heard before this Court.

At the conclusion of the proceeding, defendant acknowledged his understanding of the sentence and the court informed defendant of his right to appeal, stating:

THE COURT: If you are not satisfied with what I have done, you have a right to appeal. If you want to appeal I suggest you discuss this with Your [] attorney since it is rather complex and there is a time limit of 45 days. Do you understand that?


THE COURT: Likewise, if you are indigent or constitutionally or otherwise entitled to a free attorney, one will be appointed for you. Do you understand that?


Defendant did not correspond with the public defender until November 9, 1994, when he indicated by letter that he wanted to appeal his conviction on the grounds of ineffective assistance of counsel and failure of the trial court to allow him to obtain counsel of his choice. The public defender asked defendant for a certification, presumably to allow for the filing of the appeal nunc pro tunc. Although defendant contends he responded after his January 5, 1995 release from prison in Bucks County,*fn2

he did not retain a copy of what he forwarded and no copy was found in his file with the Public Defender's Office.

Defendant did not file a direct appeal of his conviction. Defendant filed his first PCR in January 2002, which was rejected by the court on March 22, 2002 as untimely. Represented by a public defender, that decision was reversed and remanded on appeal because of the court's failure to appoint counsel to which defendant was entitled in connection with his first PCR petition. State v. Gilbert, No. A-5258-01T4 (App. Div. January 15, 2004). On or about February 22, 2005, defendant submitted an amended PCR petition, memorandum of law, and letter indicating his intention to proceed pro se. Following a March 24, 2005 hearing respecting defendant's request, the court issued an order permitting defendant to appear pro se on his PCR petition.*fn3 The State filed opposition. Defendant asserted the following claims: (1) Judge Gaydos committed per se reversible error and abused his discretion by denying defendant his constitutional right to counsel of his choice; (2) he suffered illegal sentences; (3) defendant's guilty plea was neither knowing and intelligent nor voluntary; (4) his trial counsel ineffectively performed on June 14, 1993, between June 8 and June l7, 1993, during the plea bargain process, prior to and at sentencing, and post-conviction, prejudicing his case; and (5) his PCR petition should not be time-barred as he had constitutional grounds or issues implicating fundamental fairness to advance his petition, or alternatively, he established excusable neglect for the delay.

As Judge Almeida noted in his opinion, the State conceded that certain counts of the indictment should have merged and that one count of the indictment was incorrectly labeled as a third-degree, rather than a fourth-degree, offense of forgery. The State further maintained such errors were not fatal to the judgments entered against defendant in view of the number of counts that were dismissed and the concurrent sentences. Defendant acknowledged that an evidentiary hearing on his PCR petition was unnecessary as the court could clearly decide all the issues on the merits. In a comprehensive fifty-four page opinion following oral argument, Judge Almeida meticulously addressed each of defendant's arguments. He set forth detailed findings of fact, with recitation of the transcripts, and conclusions of law, supporting his decision to deny defendant's requested PCR relief on both procedural grounds of the five-year time-bar, R. 3:22-12, and substantive grounds. He memorialized his ruling in an order, which defendant appealed.

On appeal, defendant renews the arguments made to Judge Almeida with the exception of the sentencing challenges. He contends: (1) he established excusable neglect for filing his PCR petition late; (2) alternatively, any procedural bars should be relaxed in the interests of justice; (3) he was denied his constitutional right to choice of counsel by Judge Gaydos and the PCR judge erred in finding there was no abuse of discretion by Judge Gaydos in denying his request to retain private counsel; (4) under the totality of the circumstances, his guilty plea was not knowing and intelligently or voluntarily entered;

(5) the PCR judge erred in finding he waived all of his constitutional rights when he pled guilty; and (6) he was denied effective assistance of counsel in that his public defender's performance was deficient before the trial court and post-trial and he was prejudiced as a result, and the PCR judge erred in finding to the contrary.

Even assuming defendant's PCR application, filed over eight years after sentencing, was not procedurally barred, we are satisfied defendant's substantive claims raised in his PCR petition have absolutely no merit whatsoever. Defendant reiterates the same arguments made to the PCR judge. Any additional comments to Judge Almeida's letter opinion would be superfluous. R. 2:11-3(e)(2).


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