October 10, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MAURICE ROMERO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 87-04-0326.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2008
Before Judges Fisher and Baxter.
Defendant Maurice Romero appeals from a March 8, 2007 order that denied his second petition for post-conviction relief (PCR). We reverse and remand for a hearing on the merits of defendant's PCR claims.
On August 4, 1988, defendant was convicted, following a trial by jury, of murder, felony murder, aggravated sexual assault, burglary and theft. The evidence presented at trial established that on December 3, 1986, defendant and two co-defendants broke into the home of an elderly couple and raped and beat the wife. She died within minutes. Her husband, who was confined to a hospital bed in the home, was beaten but survived even after a co-defendant returned to the house five hours later and set it afire. On direct appeal, defendant raised the following claims:
I. THE JURY VERDICT AS TO COUNTS I AND II WAS AGAINST THE WEIGHT OF THE EVIDENCE.
II. THE TRIAL COURT ERRED WHEN IT INSTRUCTED THE JURORS TO ENGAGE IN DELIBERATION AT THE HOUR OF 7:00 P.M. ON A THURSDAY NIGHT.
III. THE TRIAL COURT ERRED WHEN IT INSTRUCTED THE JURY THAT CO-DEFENDANT CASEY TERRY'S FAILURE TO TESTIFY IN THE CASE SHOULD NOT BE HELD AGAINST EITHER THE PROSECUTOR OR THE DEFENDANT.
IV. THE TRIAL COURT ERRED WHEN, DESPITE THE OBJECTIONS OF DEFENSE COUNSEL, IT READ IN OPEN COURT WITH THE MEDIA PRESENT PORTIONS OF THE CO-DEFENDANT CASEY TERRY'S STATEMENT.
V. THE TRIAL COURT ERRED WHEN IT INSTRUCTED THE JURY THAT THE DEFENDANT WOULD BE LIABLE FOR AIDING AND ABETTING THE ACTS OF CO-DEFENDANT CASEY TERRY.
VI. THE TRIAL COURT'S IMPROPER INSTRUCTIONS REGARDING ACCOMPLICE LIABILITY CLEARLY DIRECTED THE JURY VERDICT.
VII. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
We affirmed defendant's conviction on direct appeal and concluded, relying on Rule 2:11-3(e)(2), that all issues were "clearly without merit." State v. Maurice Romero, A-315-88 (App. Div. October 4, 1990), certif. denied, 127 N.J. 324 (1990).
Thereafter, on May 20, 1993, defendant filed a timely PCR petition. According to defendant, no decision was ever rendered on that May 20, 1993 petition. We now set out that procedural history in some detail to provide a factual context against which to evaluate the judge's conclusion that the instant petition, which was filed on April 11, 2002, is time-barred.
On May 20, 1993, the Deputy Clerk of the Superior Court, now known as the office of the Criminal Division Manager, received and filed defendant's PCR petition. In that petition, defendant provided the following answer to question number eight, which asked him to "state with specificity the facts upon which the claim for relief is based:"
I am petitioning my convictions because I am innocent. I don't know anything about law, and everything that I am writing here was on the advice of another inmate. I didn't even know that there was a deadline until recently. Therefore, I am making every effort to submit this petition as soon as possible. I pled not guilty of murder, rape, armed robbery and theft, because I did not commit those crimes. I think that the evidence fully supported my side of the case. I believe that I did not receive a fair trial or sentence. I was accused of killing and brutally raping an elderly white female. I was later tried by a jury of twelve men and women, of whom which [sic] none of them were black or Hispanic. I believe that by race by itself was a factor in the juries [sic] decision to convict me.
Because of my young age of only fifteen years old, I was taken advantage of by Investigator[s] into waiving my rights. The court said that I was intelligent enough to waive or not waive my rights. At fifteen years old, I didn't even know that I had rights.
The court said that because of my prior criminal history, it would impose a sentence to the maximum. My criminal history, which consisted of burglary, shoplifting and joyriding.[sic] This should not be a reason to impose an excessive, and I think illegal sentence.
I hope that this petition be accepted as being valid. To my knowledge, everything that I have stated here is true and honest. Hopefully, you will see merit in my case and grant me relief.
The Law Division assigned an attorney to represent defendant. Such action is evidenced by an August 12, 1993 letter from a lawyer in the Office of the Public Defender in which the lawyer asked defendant to advise him "as to which grounds [he] wish[ed] to raise on [his] post-conviction relief [petition] because [defendant's] file does not contain that essential information."
There is considerable dispute about what happened next. The State claims the judge dismissed that 1993 petition because the claims raised therein lacked merit; however, the State provides no proof that the claim was adjudicated on the merits. The State provides no order or even a Promis Gavel entry. Defendant, for his part, claims that the judge never assigned a court date to address his May 20, 1993 petition and consequently, there was no decision on the merits. Stated differently, defendant claims that his attorney and the judge simply were careless and overlooked his petition. As we understand the record, nothing happened between 1993 and 2002.
Not until April 11, 2002, did defendant file another PCR petition. In that 2002 petition, defendant raised the following claim:
THE PETITIONER WAS DENIED THE RIGHT TO DUE PROCESS IN VIOLATION OF AMENDMENT 14 AND ARTICLE 1, PARAGRAPH 9, OF THE FEDERAL AND STATE CONSTITUTION.*fn1
The Law Division treated that 2002 filing as a second petition for post-conviction relief rather than a re-filing of an overlooked first petition, and exercised its discretion to appoint counsel to represent defendant. See R. 3:22-6(b). As we understand the record, the Office of the Public Defender was assigned to represent defendant but at some point in 2004, the Furman Law Office entered its appearance as defendant's attorney of record. After Mr. Furman passed away, his associate was permitted to withdraw as attorney of record. On May 3, 2006, the Law Division again appointed the Office of the Public Defender to represent defendant on the April 11, 2002 petition that is the subject of this appeal.
Some seven months later, on December 22, 2006, defense counsel moved for an order directing the State to provide him with all pre-trial discovery so that he and defendant could prepare an amended petition for post-conviction relief. Counsel maintained the file he received from the Public Defender's office was incomplete. The State cross-moved to dismiss the April 11, 2002 petition as untimely under Rule 3:22-12.*fn2 On March 8, 2007, the court granted the State's motion. The judge concluded, "without compelling extenuating circumstances, the burden to justify a petition after the five-year period would increase with the extent of the delay.... [Defendant's]... application appears to be lacking [a] compelling explanation as to why almost ten years passed between'93 and 2002." Consequently, the judge dismissed the 2002 petition as untimely under Rule 3:22-12. In light of that determination, he rendered no decision on defendant's motion to be provided a copy of all pre-trial discovery.
On appeal, defendant raises the following claims:
I. THE POST-CONVICTION RELIEF TRIAL COURT ERRED IN DENYING APPELLANT'S PETITION AS UNTIMELY UNDER RULE 3:22-12 BECAUSE THE ORIGINAL PETITION WAS WITHIN THE FIVE-YEAR PERIOD (Not Raised Below)
II. EXCUSABLE NEGLECT EXISTS FOR RELAXATION OF FIVE-YEAR PERIOD UNDER RULE 3:22-12.
A. Excusable neglect exists because of the conflict of interest between appellant and his 1993 Office of the Public Defender post-conviction relief counsel (not raised below)
B. 1993 Office of the Public Defender post-conviction relief counsel failed to advance his client's case as required by Rule 3:22-6 (not raised below)
C. 1993 Office of the Public Defender post-conviction relief trial counsel's failure to investigate his claims and advance any claims constitutes ineffective assistance of counsel (not raised below)
D. 2002 Office of the Public Defender post-conviction relief trial counsel's failure to investigate his claims, and advance any claims constitutes ineffective assistance of counsel (not raised below)
E. The Furman Law Office's failure to advance any claims constitutes ineffective assistance of counsel (not raised below)
F. 2006 post-conviction relief trial counsel's failure to advance any claims of excusable neglect constitutes ineffective assistance of counsel (not raised below)
III. THE POST-CONVICTION RELIEF TRIAL COURT ERRED IN NOT FINDING EXCEPTIONAL CIRCUMSTANCES JUSTIFYING THE RELAXATION OF THE FIVE-YEAR BAR OF RULE 3:22-12 (Not Raised Below)
In order to establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland, supra. First, defendant must show that defense counsel's performance was indeed deficient. Second, defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. The Strickland approach has been adopted by the Supreme Court of New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987).
Prejudice is not presumed. Fritz, supra, 105 N.J. at 61. Defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80 L.Ed. 2d 657, 688 n.26 (1984).
Rather than focus on counsel's deficient performance in 1993 when counsel failed to file a PCR brief and failed to insist on the scheduling of a hearing to consider defendant's PCR claims, the judge focused only on defendant's nine-year delay in filing his second petition. The judge's approach omitted any consideration of a lawyer's duty to file a brief and present and advance those arguments before the court. See State v. Rue, 175 N.J. 1, 18-19 (2002).
The record before us strongly suggests that the attorney assigned to represent defendant on his 1993 petition failed to satisfy those obligations, all of which go to the very heart of the Sixth Amendment requirement of effective assistance of counsel. Despite these failures by counsel, the judge evaluated defendant's nine-year filing delay in a vacuum. The judge's approach ignored counsel's dereliction and failed to analyze whether counsel's omissions satisfy the "defendant's excusable neglect" exception to the five-year time bar of Rule 3:21-12. Unquestionably, had PCR counsel filed a brief in 1993 and insisted on the scheduling of a PCR hearing, defendant would have had no need to file his petition in 2002.
We are mindful of the teaching of State v. Afanador, 151 N.J. 41, 52 (1997). There, the Court specified the criteria to be applied when a defendant's request for relaxation of the time bar is being considered:
[A] court should only relax the time 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 the filing of 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. [Afanador, supra, 151 N.J. at 52 (citation omitted).]
Applying the Afanador criteria, we recognize that the extent of the delay, nine years, is considerable; and the prejudice to the State is substantial because the surviving victim, Mr. Sampson, is now presumably dead because he was ninety-four years old at the time these crimes were committed in 1986. Last, we are unable to evaluate the merit of defendant's claims until defendant has had the benefit of counsel reviewing the record and preparing an amended petition.
Nonetheless, defendant has presented sufficient facts to warrant the conclusion that "compelling extenuating circumstances" exist. Ibid. Afanador teaches that a defendant's burden to justify an extension of the five-year time bar ordinarily "will increase with the extent of the delay;" however, Afanador also instructs that a defendant's burden is not increased when, as here, "compelling, extenuating circumstances" are presented. Ibid. Here, PCR counsel's abandonment in 1993 of all responsibilities owed to defendant satisfies that standard.
Consequently, we conclude that the judge erred by finding that defendant had not presented a sufficient reason for failing to comply with the five-year filing requirement established by Rule 3:22-12. We reverse and remand for a hearing on the merits of defendant's PCR petition. On remand, counsel is free to re-file the discovery motion and shall be permitted to submit an amended petition and brief on defendant's behalf. The judge is directed to establish firm deadlines for all further proceedings in order to prevent further delay.
Reversed and remanded.