December 8, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHAWN ROBINSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 94-06-0238.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2008
Before Judges A. A. Rodríguez and Payne.
Defendant, Shawn Robinson, appeals from the denial without a hearing of his petition for post-conviction relief (PCR), filed on July 20, 2005, following a plea to third-degree possession of cocaine with the intent to distribute it and a sentence of time served and two years of probation, imposed on January 6, 1995, and pleas to fourth-degree possession of marijuana with the intent to distribute it and to violation of probation (VOP) and concurrent sentences of nine months in custody, imposed on May 3, 1996.
On appeal, defendant raises the following issues for our consideration:
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE PLEA NEGOTIATION PROCESS AND RETRAXIT HEARING.
JUDGE FORESTER ERRED IN DETERMINING THAT A FACTUAL BASIS EXISTED FOR THE ENTRY OF DEFENDANT'S GUILTY PLEA.
A. The Trial Court Failed To Independently Elicit A Factual Basis For The Crime of Possession of Marijuana With Intent To Distribute, In Violation of Rule 3:9-2 And Due Process Of Law.
THE TRIAL COURT ERRED IN DETERMINING THAT DEFENDANT'S PETITION WAS PROCEDURALLY BARRED (PARTIALLY RAISED BELOW).
Following our review of the record on appeal in light of applicable court rules and law, we affirm.
The record discloses that on March 31, 1994, while in Penns Grove, New Jersey, defendant was arrested as the result of the discovery of four bags of cocaine secreted under the front seat of the car that defendant was occupying. At the plea hearing held following defendant's indictment, defendant admitted that he intended to share the cocaine with his friends. As we stated, defendant was sentenced to time served and a period of two years' probation. On June 14, 1995, defendant was arrested at a party with others, occurring at a Wellesley Inn. Following indictment, at a plea hearing, defendant admitted that, while at the party, he possessed marijuana and that he was "sharing it with other people that were there." Additionally, defendant acknowledged that his plea of guilty to the crime resulted in an "automatic conviction for a violation of probation" and that he had further violated probation by failing to appear for meetings with his probation officer on a couple of occasions, he had not presented proof of obtaining a substance abuse evaluation, had not sought or obtained required full-time employment, was behind in payment of some court-ordered penalties, and was behind in community service hours. Concurrent nine-month jail sentences were imposed for the drug offense and the VOP. At some point thereafter, defendant was arrested on federal charges of an unknown nature. Defendant's exposure to enhanced penalties as the result of his 1995 and 1996 convictions likely precipitated the present PCR petition, which was heard by Judge William Forester on August 4, 2006.
Judge Forester declared defendant's PCR petition to have been untimely filed under the five-year time limitation of Rule 3:22-12. He nonetheless addressed the merits of that petition finding, contrary to defendant's position, that defendant had given an adequate factual basis for his 1996 plea of guilty to possession of marijuana with the intent to distribute it. The judge further rejected as essentially incredible defendant's contention that counsel had been inadequate because he had erroneously advised him that the 1995 and 1996 convictions for possession of controlled dangerous substances (CDS) with the intent to distribute them and for the VOP "were going to be basically consolidated" and that they would "go down essentially as one offense." In this regard, the judge noted with respect to the 1996 pleas that: "It's difficult to imagine that someone would not realize that he had two charges that he was dealing with, namely the violation of probation and the new charge, and the colloquy, again, is clear that they were... two separate and distinct events, and he was sentenced accordingly on... each of those." As a final matter, the judge, relying on State v. Wilkerson, 321 N.J. Super. 219 (App. Div. 1999), certif. denied, 162 N.J. 128 (1999), found that counsel had no obligation to inform defendant that his criminal record as the result of his pleas could form a basis for an enhanced sentence on a subsequent and unrelated future crime, as defendant contended he was required to do.
We agree with the determinations of Judge Forester. As he found initially, defendant's PCR petition, filed ten years after his 1995 plea and nine years after his 1996 pleas, was unquestionably untimely under the five-year time limitation established by Rule 3:22-12. We recognize that the rule's time limit may be relaxed when the petition "alleges facts showing that the delay beyond said time was due to a defendant's excusable neglect." Ibid. Factors to consider in that connection include "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." State v. Milne, 178 N.J. 486, 492 (2004) (quoting State v. Afanador, 151 N.J. 41, 52 (1997)). Absent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay." Ibid.
Defendant claims that he did not realize that his guilty pleas would result in an enhanced sentence for a subsequent conviction until confronted with that fact at some unspecified time prior to when he filed his PCR petition. However, we held in Wilkerson that it should be "common sense that a continuing course of antisocial or criminal conduct may lead to increased penalties." 321 N.J. Super. at 223. We thus find this excuse insufficient when balanced against the prejudice that the State would incur in attempting to retry defendant at this late date, State v. Goodwin, 173 N.J. 583, 595 (2002); State v. Mitchell, 126 N.J. 565, 575 (1992), and the absence of any articulable "injustice" flowing from a determination not to relax the time limits of the rule. Although, as defendant argues, Rule 1:1-2 permits the time limits of Rule 3:22-12 to be relaxed to prevent injustice, the Court has recognized that the former rule "was not intended to vitiate the rules from which it permitted exceptional relief." Mitchell, supra, 126 N.J. at 579.
Defendant also notes that Rule 3:22-12 permits us to correct an illegal sentence at any time, and he argues for the first time on appeal that his sentence was illegal because his guilty plea was accepted "in total disregard" of Rule 3:9-2, thereby depriving him of due process. We disagree. The transcript of the plea hearings discloses that the factual basis for the pleas was obtained by posing leading questions, to which defendant provided either a "yes" or a "no" response, as appropriate. We do not approve of that practice. See State v. Smullen, 118 N.J. 408, 415 (1990); State v. Kane, 335 N.J. Super. 391, 396 (App. Div. 2000). Nonetheless, our review of the plea transcripts satisfies us that a factual basis was established for each plea.*fn1 State v. Pineiro, 385 N.J. Super. 129, 137 (App. Div. 2006). We are unwilling to infer in the circumstances presented that, because defendant did not elaborate on his responses, his plea was somehow not knowing or voluntary. Indeed, defendant does not argue that he misunderstood any of the questions asked of him, nor does he argue that he was misled, or that he answered any questions incorrectly. Thus, despite the fact that the questions posed were leading, we cannot see how the court's acceptance of defendant's guilty plea constituted a "manifest injustice." R. 3:21-1; State v. Fischer, 38 N.J. 40, 48 (1962); State v. Deutsch, 34 N.J. 190, 200 (1961).
We likewise reject the argument that, because defendant was not informed of his potential exposure to an extended term, pursuant to N.J.S.A. 2C:43-6f, as a result of his second plea to possession of CDS with the intent to distribute it, his plea was not knowing or voluntary. In accordance with that statute, an extended term must be imposed by the court upon motion by the prosecutor. However, the prosecutor may waive the right to seek such an extended term, as he did in the present case by offering a plea agreement that contemplated imposition of nine-month concurrent sentences. In these circumstances, there was no need to inform defendant of his potential exposure to a sentence that the prosecutor had waived his right to obtain. State v. Howard, 110 N.J. 113, 123 (1988).
We agree with Judge Forester that, as we held in Wilkerson, trial counsel had no obligation to inform defendant that his criminal convictions in 1995 and 1996 could impact upon the sentence he received for some future crime. The Supreme Court has held that "[t]he right of the defendant to be informed of the consequences of his plea, however, extends only to those consequences that are'direct,' or'penal,' but not to those that are'collateral.'" Howard, supra, 110 N.J. at 122 (quoting State v. Heitzman, 209 N.J. Super. 617, 622 (App. Div. 1986), aff'd, 107 N.J. 603 (1987)). Here, the consequence was collateral. Wilkerson, supra, 321 N.J. Super. at 224-27. There is "no constitutional requirement that a defense attorney must advise a client or defendant that if he or she commits future criminal offenses that there may be adverse consequences by way of enhancement of the penalty." Id. at 223.
Having found defendant's PCR petition to have been untimely filed, we need not address defendant's substantive arguments to a greater extent than was necessary to determine the applicability of Rule 3:22-12.