November 26, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DEWAYNE SIMONS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 95-03-0646B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 16, 2008
Before Judges Parrillo and Messano.
Defendant Dewayne Simons appeals from the denial of his second petition for post-conviction relief (PCR). In his pro se brief, he raises the following points for our consideration:
PETITIONER'S REQUEST FOR COUNSEL AS AN INDIGENT FOR HIS SEC[OND] PETITION FOR POST-CONVICTION RELIEF, RELEVANT MOTIONS: NEWLY DISCOVERED EVIDENCE, EXPAND THE RECORD, AND SUBPOENA WITNESSES; AND NOTICE OF APPEAL, SHOULD HAVE BEEN GRANTED. (Not Raised Below)
THE COURT PREJUDICED PETITIONER WHEN IT FAILED TO PROPERLY DETERMINE THE MERITS, AND CONSTITUTIONALITY OF EACH ISSUE OF PETITONER'S PETITION FOR POST-CONVICTION RELIEF IN VIOLATION OF HIS DUE PROCESS RIGHT AS GUARANTEED BY THE FOURTEENTH AMEND[MENT] TO THE U.S. CONSTITUTION.
PETITIONER'S RIGHT TO PRESENT EXCULPATORY EVIDENCE, AND THE RIGHT TO CONFRONT WITNESSES, WITHIN HIS SEC[OND] POST-CONVICTION RELIEF AND RELEVANT MOTIONS WAS A VIOLATION OF PETITIONER'S SIXTH AND FOURTEENTH AMEND[MENT] TO THE U.S. CONST[ITUTION].
PETITIONER WAS DENIED HIS DUE PROCESS RIGHT[S] GUARANTEED BY THE FOURTEENTH AMEND[MENT] OF THE UNITED STATES CONST[ITUTION] WHEN THE COURT DENIED PETITIONER'S MOTION FOR NEWLY DISCOVERED EVIDENCE AND MOTION TO EXPAND THE RECORD, WITHOUT DETERMINING THE MERITS SUPPORTED BY EVIDENCE.
THE DENIAL BY THE PCR COURT TO GRANT PETITIONER'S MOTION TO SUBPOENA WITNESSES IN SUPPORT OF NEWLY DISCOVERED EVIDENCE AND MOTION TO EXPAND THE RECORD VIOLATED DEFENDANT'S [RIGHTS UNDER THE] SIXTH AND FOURTEENTH  AMEND[MENT] OF THE UNITED STATES [CONSTITUTION] TO CONFRONT WITNESSES AND TO PRESENT EVIDENCE AS TO "OUT-OF-COURT" STATEMENTS AND CONVERSATIONS MADE PERTAINING TO DEFENDANT'S PLAYING WITH THE GUN AND NOT GUILTY OF MURDER.
PLAIN ERROR MAY HAVE BEEN COMMMITTED BY THE PCR COURT JUDGE  WHO WAS ALSO DEFENDANT'S TRIAL JUDGE, WHEN HIS RULINGS AGAINST DEFENDANT MAY HAVE PARTLY BEEN A RESULT FROM THE DEATH OF HIS SON CAUSING A CONFLICT OF INTEREST WHICH REQUIRES A FULL REVERSAL. (Not Raised Below)
Having considered these arguments in light of the record and applicable legal standards, we affirm.
Following a waiver hearing in the Family Part, defendant was tried as an adult and convicted of the knowing, purposeful murder of fifteen-year old Leann Washington and other related crimes. He was sentenced to life imprisonment, with a thirty-year period of parole ineligibility, as well as a consecutive eighteen-month sentence for fourth-degree aggravated assault against a second victim, Tenay Thorpe. We affirmed defendant's conviction and sentence on direct appeal. State v. Dewayne Simons, A-0390-96 (App. Div. February 8, 1999) (slip op. at 19). His petition for certification was denied by the Supreme Court. State v. Simons, 162 N.J. 130 (1999). We affirmed the denial of his first PCR petition. State v. Dewayne Simons, A-5015-02 (October 31, 2005) (slip op. at 13).
On June 8, 2007, defendant filed a second PCR petition and motions 1) to expand the record; 2) for a new trial; and 3) to subpoena witnesses. In two separate written opinions, the PCR judge, who was also the trial judge and the judge who denied defendant's first PCR application, denied defendant's second PCR petition and motions. He concluded that all of defendant's arguments and requests were procedurally barred pursuant to Rules 3:22-4 and 3:22-5, or otherwise time-barred pursuant to Rule 3:22-12.
We agree that most of defendant's arguments have been raised, or could have been raised, before, and thus are procedurally-barred from further consideration. The remaining points raised are of insufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(2). We add only these brief comments.
Defendant is entitled to appointed counsel on his second PCR petition "only upon application therefor and showing of good cause." R. 3:22-6(b). Since we agree with the PCR judge that plaintiff's second PCR petition was without merit, there was no error in not assigning counsel to press the claims. See State v. Ellis, 116 N.J. Super. 330, 335 (App. Div. 1971)(holding appointment of the public defender on second PCR petitions is only appropriate if the judge first finds "good cause" based upon the petition itself).
In Point Two, defendant's claim that the PCR judge failed to consider the issues raised in his petition is simply untrue. The judge did consider each and every point raised by defendant and found them to be procedurally-barred or time-barred. Although defendant continues to argue the point, it is clear that the issues he now presents either were decided in prior proceedings, Rule 3:22-5, or could have been presented in prior proceedings, but were not. R. 3:22-4.
Points Three, Four, and Five essentially deal with the denial of defendant's motions that were filed after the second PCR petition. In those requests, defendant sought an evidentiary hearing to produce a witness, Albert Copeland, a fellow inmate of defendant's at Yardville. Defendant claimed that Copeland used to date Tenay Thorpe and that Copeland told defendant that Thorpe had told him that the shooting was an accident. Defendant also referenced conversations Thorpe was alleged to have had with defendant's mother along the same lines. Defendant claims that these alleged double hearsay statements support an argument that he has pressed since his trial, i.e., that the shooting of Washington was an accident resulting from his "playing" with the gun, and not a knowing or purposeful murder. Whether he possessed the requisite state of mind to support the murder conviction is an issue defendant raised on direct appeal and in his initial PCR appeal. In that context, he asserted the ineffective assistance of trial counsel in investigating this "defense," and in failing to find witnesses to support his theory that the shooting was an accident.
The judge denied defendant's motions in a separate written opinion finding they raised no new issues. Although it is unclear from the record when defendant first became aware of these statements allegedly made by Thorpe, we assume arguendo that he did not know of them at the time of his first PCR petition. We also assume arguendo that such statements, if actually made, contradict Thorpe's trial testimony in which she told the jury that she believed defendant intended to kill both Washington and herself by pointing the gun at them.
However, giving defendant the benefit of these assumptions, we find no error in denying his motions or dismissing his PCR petition to the extent it incorporated these arguments. Defendant has furnished no more than bald assertions of conversations he had with others who in turn are alleged to have spoken to Thorpe. Such double hearsay, detailing alleged conversations that took place literally years after the murder, and unsupported by any corroborative affidavits or certifications, hardly entitles defendant to an evidentiary hearing on the issue. State v. Cummings, 321 N.J. Super. 154, 171 (App. Div.) certif. denied, 162 N.J. 199 (1999); compare State v. Allen, 398 N.J. Super. 247, 258-59 (App. Div. 2008)(where affidavit of witness who did not testify at trial, filed in support of PCR petition alleging newly-discovered evidence, warranted an evidentiary hearing).
Moreover, even if defendant was able to support his claim with appropriate affidavits or certifications, it is unlikely that the information he alleges warrants the extraordinary relief of a new trial. In State v. Ways, 180 N.J. 171 (2004), the Supreme Court noted,
To meet the standard for a new trial based on newly discovered evidence, defendant must show that the evidence is 1) material, and not merely cumulative, impeaching, or contradictory; 2) that the evidence was discovered after completion of the trial and was not discoverable by reasonable diligence beforehand; and 3) that the evidence would probably change the jury's verdict if a new trial were granted. We have held that all three prongs of that test must be satisfied before a defendant will gain the relief of a new trial. [Id. at 187 (citations and quotations omitted).]
It is apparent that defendant's assertion of what Tenay Thorpe may have told her ex-boyfriend or defendant's mother is not "material" evidence under this standard.
As to defendant's last point, it was not made below and there is absolutely no support for the claim in the record.
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