On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 91-01-0143.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 21, 2009
Before Judges Skillman and Grall.
Defendant Ahmad Thomas appeals from the denial of his petition for post-conviction relief. Pursuant to an agreement with the State, defendant pled guilty to possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5a(1), b(3), which was one of three counts charged in an indictment returned by the grand jurors for Passaic County. Consistent with the plea agreement, the court dismissed counts charging possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1), and possession of a controlled dangerous substance with intent to distribute in a school zone, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7, sentenced defendant to a three-year term of probation conditioned on his service of 364 days in county jail, ordered forfeiture of $307 and imposed the mandatory driver's license suspension, penalties, fees and assessments.
The judgment of conviction and sentence was entered on May 31, 1991, and defendant did not appeal. On February 23, 2004, defendant, who was then incarcerated in a federal prison in Georgia, filed his first petition for post-conviction relief. The trial court dismissed the petition as untimely pursuant to Rule 3:22-12. On defendant's appeal from that denial, we summarily reversed and remanded because counsel had not been assigned.
On remand from this court, counsel was appointed. With the assistance of counsel, defendant asserted that at the time of his plea he had no experience with legal matters or procedure and trusted the attorney who represented him to provide guidance and advise him on all matters relevant to his case. He contended that the attorney failed to fully investigate and failed to advise him of the elements of the crime, the consequences of his plea, his trial rights and defects in the indictment. He also claimed that he asked his attorney to file an appeal. The only explanation offered for defendant's thirteen-year delay in filing a petition for post-conviction relief was that his incarceration in another state had made it difficult for defendant to become aware of his right to file a petition and obtain the materials necessary to file his petition.
A review of the transcript of defendant's guilty plea discloses that his attorney fully described the rights defendant would waive by pleading guilty and the direct consequences of defendant's guilty plea. His attorney explained that defendant would benefit by avoiding the term of incarceration he would be required to serve if he were convicted of possession of cocaine with intent to distribute in a school zone and cautioned that the judge could impose 364 days in jail as a condition of his sentence to probation and that his conviction could have an impact on his immigration status. In response to questions from the court, defendant acknowledged that he had been given ample time to speak to his attorney, who had answered all of his questions.
Defendant provided the factual basis for his plea. He explained that he had possession of six vials of cocaine and intended to distribute the cocaine. At the time of sentencing, defendant asserted his innocence but immediately retracted the assertion and, during a colloquy with the judge, reiterated the factual basis. Defendant even corrected the record when the judge mistakenly referred to his possession of sixteen, rather then six, vials of cocaine and possession of $306, rather than $307.
In considering defendant's petition for post-conviction relief, Judge Reddin reviewed defendant's explanation for his untimely request for post-conviction relief, his allegations about his attorney's performance and the record of the proceedings on his guilty plea and sentencing. The judge determined that defendant failed to show that his delay in filing a petition for post-conviction relief between May 1996 and February 2004 was due to "excusable neglect" and did not demonstrate an injustice warranting relaxation of Rule 3:22-12.
Defendant raises three issues on appeal:
I. THE COURT ABUSED ITS DISCRETION AND COMMITTED ERROR IN ALLOWING THE STATE TO TESTIFY AT THE INITIAL PCR HEARING REGARDING THE REPUTATION, CHARACTER AND GENERAL QUALITY OF LEGAL SERVICES PROVIDED BY DEFENDANT'S TRIAL COUNSEL.
II. THE COURT ABUSED ITS DISCRETION AND COMMITTED ERROR IN FINDING THE DEFENDANT'S PETITION WAS PROCEDURALLY BARRED.
III. THE COURT ABUSED ITS DISCRETION AND COMMITTED ERROR IN FAILING TO GRANT AN EVIDENTIARY HEARING TO DEFENDANT TO ESTABLISH THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY U.S. ...