May 14, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EVERTON WATTS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 98-02-00239.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 3, 2008
Before Judges Lintner and Alvarez.
This is an appeal from the denial of defendant Everton Watts' petition for post-conviction relief (PCR) without evidentiary hearing. R. 3:22. For the reasons that follow, we affirm.
On June 30, 1998, defendant entered guilty pleas to first-degree armed robbery, N.J.S.A. 2C:15-1 (count one); three fourth-degree aggravated assaults, N.J.S.A. 2C:12-1(b)(4) (counts five, six, and nine); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count twelve); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count fifteen); third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count eighteen); and fourth-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10(d) (count twenty). The agreement called for a maximum aggregate sentence of twenty years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On July 27, 1998, defendant was sentenced to an aggregate fifteen years, subject to NERA. On July 24, 2002, defendant's sentence was affirmed pursuant to Rule 2:9-11, except for a remand as to the merger of counts and the dismissal of count twenty-one. Defendant filed a pro se appeal of that decision to the Supreme Court, which appeal was denied. State v. Watts, 175 N.J. 429 (2003).
On May 24, 2005, nearly seven years after the imposition of sentence, defendant pro se filed the petition for PCR at issue on this appeal. Thereafter, counsel was assigned. Defendant later retained private counsel, and the petition was considered on March 20, 2006.
The court denied PCR based on the only issue raised before it, that the plea should be vacated because defendant claimed trial counsel did not explain that he would be subject to five years of parole supervision upon completion of his prison term. The argument can be loosely characterized as coming within the rubric of ineffective assistance of counsel. The court concluded that because the plea agreement was for a maximum term of twenty years, and defendant was sentenced to only fifteen years, the omission of any on-the-record discussion about parole supervision was not error. In other words, the court found that because defendant agreed to serve five more years of imprisonment than were imposed, the omission was of no moment because parole supervision is far less onerous than incarceration.
When the plea was accepted in 1998, the court thoroughly reviewed with defendant the voluntary, knowing, and intelligent decision he was making to forego his right to trial. The plea form defendant signed included an additional page titled "Supplemental Plea Form for No Early Release Act Cases," which specified that defendant would serve a five-year term of parole supervision. Defendant, and the attorneys who negotiated the plea, signed the form.
In defendant's brief, the following points are raised:
THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE POST CONVICTION RELIEF PROCEEDING DUE TO COUNSEL FAILING TO ARGUE THE ISSUES RAISED BY THE DEFENDANT IN HIS PETITION
THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE AT THE POST CONVICTION RELIEF PROCEEDING DUE TO COUNSEL FAILING TO ARGUE THAT THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL ON APPEAL DUE TO APPELLATE COUNSEL FAILING TO RAISE THE ISSUE OF JUDGE MILLER FORCING THIS DEFENDANT TO ENTER PLEAS OF GUILTY
Defendant raises the following arguments in his pro se brief from the denial of his PCR petition:
THE PROCEDURAL BARS SHOULD NOT BE ENFORCED BECAUSE ENFORCEMENT WOULD RESULT IN A MANIFEST DENIAL OF JUSTICE, IN VIOLATION OF THE CONSTITUTIONS OF NEW JERSEY AND THE UNITED STATES
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF THE EFFECTIVE ASSISTANCE OF COUNSEL DURING THE PLEA AND SENTENCE PROCEEDINGS
DEFENDANT'S SENTENCE SHOULD BE SET ASIDE WHERE HE DID NOT ADMIT TO THE FACTUAL PREDICATE OF A NERA OFFENSE, WHERE HE SOUGHT TO WITHDRAW HIS PLEA, WHERE HE WAS NOT ADEQUATELY ADVISED OF ALL OF THE PENAL CONSEQUENCES, AND WHERE THERE IS A DISPARITY IN THE SENTENCES
Defendant originally raised the following issues for consideration by the PCR court in his pro se petition:
A. Standards of Ineffective Assistance.
B. Counsel misinformed his client about material consequences of his guilty plea; these actions constitute ineffective assistance of counsel.
C. Counsel failed to request a hearing on whether NERA applied and therefore failed to argue to the court that the facts of this case and the item which was determined to participate in a robbery, would not fall under the NERA statute as it existed at the time.
D. NERA does not apply to this crime.
E. There [are] disparate punishments for equally culpable perpetrators.
F. Petitioner is entitled to an evidentiary hearing.
The convictions stem from an October 20, 1997 armed robbery of a hotel clerk, and the ensuing flight from police. The sentencing transcript reveals that trial counsel argued to the sentencing court that a ten-year sentence was appropriate because defendant suffered from two head injuries that may have contributed towards the commission of the crime and was a young man, only twenty-two years old at the time of sentencing. The judge imposed fifteen years, not the agreed-upon maximum of twenty nor the ten years sought by trial counsel.
Every criminal defendant is guaranteed the right to counsel pursuant to the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 692. The right to counsel means "'the right to the effective assistance of counsel.'" Id. at 686, 104 S.Ct. at 2063, 80 L.Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 1449 n.14, 25 L.Ed. 2d 763, 773 n.14 (1970)). The New Jersey Constitution accords its citizens the same privilege. N.J. Const. art. I, ¶ 10. To establish a prima facie claim of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the two-pronged test enunciated in Strickland. First, defendant must show that counsel's performance truly was deficient. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Second, defendant must establish "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. The Strickland analysis was adopted by New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). The "benchmark" for assessing ineffective assistance of counsel claims is whether counsel's professional errors "'materially contributed'" to the conviction of defendant. State v. Velez, 329 N.J. Super. 128, 134 (App. Div. 2000) (quoting Fritz, supra, 105 N.J. at 58).
Defendant's pro se points raise issues not argued to the PCR judge. Generally, issues not raised in the trial court will not be considered on appeal unless they are jurisdictional in nature, or substantially implicate the public interest. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Because defendant arguably raised an ineffective assistance of counsel claim before the PCR court, however, we will consider the grounds now asserted as establishing ineffective assistance of counsel at some length. See State v. Gruber, 362 N.J. Super. 519, 530 (App. Div.) (explaining that we will consider certain aspects of arguments not raised before the trial court when the "general tenor" of the argument "remains the same" as the one raised below), certif. denied, 178 N.J. 251 (2003).
Defendant is correct that PCR counsel did not raise all the issues that defendant enumerated in his pro se petition. This is contrary to State v. Webster, 187 N.J. 254, 257 (2006), which reiterated that PCR counsel is obliged to advance all arguments made by a defendant, if only by raising them for the sole purpose of consideration by the PCR judge and "to preserve defendant's contentions for federal exhaustion purposes." But counsel's failure to do so in this case is ultimately harmless, because, as the State points out, all of defendant's contentions as set forth in his original pro se PCR petition are time-barred pursuant to Rule 3:22-12(a). The rule states:
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 calculation commences when the judgment of conviction is entered and it is neither stayed nor tolled by appellate or other review proceedings. State v. Dugan, 289 N.J. Super. 15, 19-21 (App. Div.) certif. denied, 145 N.J. 373 (1996).
In his pro se brief on appeal, defendant contends that we should find excusable neglect such as would exempt him from the rule's time bar because he was "misled." He does not offer any factual or legal basis in support of the claim. In fact, the statement that he was "misled" refers to his assertion that the penal consequences of his guilty plea were not adequately explained to him before the sentence was imposed, clearly not a basis for finding excusable neglect. An unsupported allegation of excusable neglect is insufficient to give rise to circumstances which warrant an exception to the rule.
Similarly, defendant also contends that application of the time bar would result in manifest injustice and that an exception should be made in his case. The basis for this contention is that NERA was amended after the entry of the guilty plea. Because under either version of NERA, the sentencing consequences are the same, application of the time bar does not result in any manifest injustice.
Even if PCR counsel had raised all the points argued by defendant in his PCR pro se petition, they were time-barred because defendant cannot establish either excusable neglect or manifest injustice such as to exempt him from the rule. R. 3:22-12(a). Therefore, counsel's failure to raise defendant's issues for consideration by the PCR judge as required by Webster, did not prejudice defendant and was not ineffective assistance of counsel.
Defendant also contends that he was forced into pleading guilty by the trial judge and that appellate counsel's failure to raise that issue constituted ineffective assistance of counsel. Nothing in the record supports this claim. The judge took the steps called for in Rule 3:9-3 by advising defendant of potential sentencing consequences if he was convicted at trial and telling him that if he rejected the State's offer, the matter would have to proceed to trial. Explaining the harsh realities to defendant did not coerce him into pleading guilty, it only corroborated defendant's understanding his situation. Clearly, it was not ineffective assistance of appellate counsel not to raise this issue. Aside from the time bar, this claim is lacking in sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).
Defendant's remaining contentions are simply not borne out by a review of the record, or have no foundation in law. Many relate to the alleged ineffective assistance of counsel, which could require an evidentiary hearing as to events which occurred nearly ten years ago. That is precisely the kind of prejudice to the State that the rule was intended to avoid. Dugan, supra, 289 N.J. Super. at 21-22. After a thorough review of the record, we consider all of defendant's remaining claims to be lacking in sufficient merit to warrant additional discussion in a written opinion. R. 2:11-3(e)(2).
© 1992-2008 VersusLaw Inc.