March 18, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHARLES W. MITZENIUS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 95-09-1537-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 10, 2009
Before Judges Graves and Ashrafi.
In 1998, a jury convicted defendant Charles Mitzenius, an Abbot in the Episcopal Church, of sexual crimes involving young members of the church. He is serving an aggregate sentence of twenty-four years imprisonment at the Adult Diagnostic and Treatment Center in Avenel. He appeals the trial court's denial of his petition for post-conviction relief (PCR).
Having reviewed the record of proceedings in the PCR court, relevant parts of the trial transcripts, and the several briefs filed for this appeal, we now affirm denial of his petition for a new trial or re-sentencing.
A detailed statement of the evidence developed at trial is not relevant to this appeal. A twelve-year old boy and his mother reported to the Monmouth County Prosecutor's Office that defendant had initiated sexual activity with the boy on overnight trips. Through the investigation that followed, three other teenage boys and a twenty-six year old man made allegations of sexual activity with the defendant arising from his role as their church mentor. Defendant was indicted on twelve counts and stood trial for three weeks before a jury. The jury returned a verdict of guilty on eight counts and not guilty on three others. One count had previously been dismissed by the court.
Defendant was sentenced on May 22, 1998. On count one, first-degree aggravated sexual assault, he was sentenced to sixteen years imprisonment with a five-year period of parole ineligibility. On count five, second-degree sexual assault, he was sentenced to eight years with a three-year period of parole ineligibility to run consecutively to the sentence imposed on count one. He received concurrent terms of imprisonment on the other six counts of conviction. The judgment of conviction was entered by the court on May 26, 1998.
Defendant filed an appeal arguing that: (1) the jury verdict was against the weight of the evidence, (2) the prejudicial effect of testimony involving alleged sexual assaults outside New Jersey far outweighed its probative value, (3) the trial court erred in admitting evidence of taped telephone conversations between defendant and one of the young victims, and (4) the trial court erroneously failed to suspend the trial when defendant was not mentally competent to continue his trial testimony. This court rejected these arguments and affirmed the judgment of conviction in an unpublished opinion. State v. Mitzenius, No. A-5579-97T3 (App. Div. Apr. 13, 2000). The Supreme Court denied defendant's petition for certification. 165 N.J. 531 (2000).
On August 31, 2005, more than seven years after his conviction, defendant filed a pro se petition for post-conviction relief. On October 9, 2006, assigned counsel for defendant filed an amended petition. The trial court heard argument and denied the petition on January 12, 2007.
The brief filed on behalf of defendant by assigned PCR counsel raises seventeen points of argument to set aside defendant's conviction and sentence. In his own pro se brief, defendant has raised numerous additional points, mostly directed to alleged errors in the grand jury proceedings and at trial. Many of defendant's pro se arguments are rambling and incomprehensible. The following partial duplication of point headings in the table of contents provides the best summary of the additional arguments raised by defendant on his own behalf*fn1
FIRST DEFENSE COUNSEL'S MOTION TO DISMISS THE INDICTMENT WAS A TOTAL ERROR BY THE TRIAL JUDGE TO DENY THIS MOTION AND LED TO JURY TRIAL WITH NO JURISDICTION.
A: A FRIVOLOUS CONTENTION, JURISDICTION IS A COURT JUDGES SOLE RESPONSIBILITY AND DOES NOT REQUIRE PREJUDICE, OR INEFFECTIVE ASSISTANCE OF COUNSEL, IT IS A CONSTITUTIONAL GUARANTEED FUNDAMENTAL RIGHT THAT CANNOT BE WAIVED.
B: THE COURT JUDGE OR THE APPELLATE DIVISION COURT NEVER LOOKED AT THE INDICTMENT AS REQUIRED BY LAW.
C: DEFENDANT IS ENTITLED TO POST-CONVICTION RELIEF, PURSUANT TO R. 3:22-2(b), BECAUSE THE INDICTMENT WAS SO FATALLY DEFECTIVE FOR FAILURE TO ALLEGE THE SPECIFIC UNLAWFUL ACTS WHICH CONSTITUTE A PROSECUTABLE CRIME.
STRUCTURAL ERROR. THE FIRST DEFENSE COUNSEL FILED MOTION TO DISMISS THE DEFECTIVE INDICTMENT. THE SECOND DEFENSE COUNSEL RENEWED THE MOTION.
A: THE GRAND JURY WAS TOLD THERE WAS NO ELEMENTS OF PENETRATION IN THE STATE OF NEW JERSEY.
B: THE MEDICAL REPORT WAS TOTALLY HID FROM THE GRAND JURY, A BRADY LAW VIOLATION, THAT MADE A LIAR OF VICTIM C.H.
C: DEFENDANT WAS TRIED IN NEW JERSEY COURT FOR ALLEGED CRIMES THE STATE HAD NO TERRITORIAL JURISDICTION IN WHICH TO PROSECUTE.
D: NO WHERE DOES THE PROSECUTION CLEARLY STATE THE YOUNG TEENAGE BOY CH WAS A CONVICTED SEXUAL ABUSER OF YOUNGER BOYS.
E: THE PROSECUTION HID THE MEDICAL REPORT AND THEN LIED TO THE GRAND JURY.
F: PROSECUTORIAL MISCONDUCT AND TRIAL JUDGE IN TOTAL VIOLATION OF DUE PROCESS RIGHTS TO A JUDGMENT OF ACQUITTAL.
G: THE TRIAL JUDGE WILL ALLOW THE PROSECUTION TO IMPERMISSIBLELY CONSTRUCT THE INDICTMENT IN THE TRIAL COURT VIOLATING THE DEFENDANT'S RIGHTS TO DUE PROCESS AND A CONSTITUTIONALLY FAIR TRIAL.
H: DEFENDANT'S CLAIM OF TOTAL INNOCENCE WAS SUPPORTED BY THE EVIDENCE IN TOTALITY OF THE RECORD. N.J.S. 2C:1-13a.
I: THE INDICTMENT IS DUPLICIOUS AND HAS NO ELEMENTS OF AN OFFENSE.
THE ISSUE OF THE PUBLIC DEFENDER, IN FACT AND RECORD, DID CAUSE THE DEFENDANT DELAY IN PURSUING HIS RIGHTS.
A: THE DEFENDANT'S PERSONAL LACK OF LEGAL EDUCATION (AS ANY OTHER LAY PERSON) AS NOT BEING A LAWYER AND ASTUTE IN THE ABILITY TO REPRESENT HIMSELF IN LEGAL WORK TO THE COURT, HAS NO BEARING ON THE ISSUES THE PARALEGAL HAS RAISED IN BEHALF OF THE DEFENDANT.
B: THE VERY STATE ARGUMENT IN ITSELF, PROVES THE INEFFECTIVE ASSITANCE OF COUNSEL.
C: RULE 3:10-4: RULE 3:22-2(b). IN FACT, THE STATE COULD NOT EVEN PUT THE INDICTMENT IN THE STATE'S EXHIBITS, AS REQUIRED BY LAW.
D: IT IS CLEAR THE DEFENDANT'S VOLUMINOUS BRIEF STATING THE TOTALITY OF THE COURT RECORD OF CERTIFIED TRANSCRIPTS OF ALL COURT ACTION OF FACTS, AS APPEAR IN THE CERTIFIED RECORD BELOW, TOTALLY CONTRADICT THE STATE'S COUNTER STATEMENT OF FACTS.
E: IT IS CLEAR THE STATE'S BRIEF TOTALLY MISLED THE COURT, WHILE INEFFECTIVE ASSISTANCE OF APPEAL COUNSEL, DID NOT RAISE THE PROPER ISSUE IN LIGHT OF THE MANY CONSTITUTIONAL DIMENSION STRUCTURAL ERRORS THAT APPEAR IN THE TOTAL RECORD.
F: DEFENDANT RAISED THE ISSUE THE TRIAL JUDGE DENIED THE DEFENDANT TO DEVELOP AND EXPLORE HIS SIDE OF THE CASE.
PROSECUTORIAL MISCONDUCT TO MISLEAD THE JURY WITH KNOWN INCORRECT FACTS AND CREATED A LIE ABOUT THE ALLEGED VICTIM. BOLSTERING THE STATE'S WITNESSES IN PLAIN ERROR PROSECUTORIAL METHODS. THE FACTS IN THE RECORD EXPOSED MANY OF THE LIES.
HOGAN LAW EVIDENCE THAT NEVER WAS PRESENTED TO THE GRAND JURY.
We have reviewed defendant's pro se arguments to the extent we can understand them. The discussion that follows concerning the procedural bars to the PCR petition also applies to these arguments. Even if we were to consider defendant's pro se arguments on their merits, we would reject them without further discussion under Rule 2:11-3(e)(2).
The standard of review in this court is plenary on questions of law. See State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005). The factual findings of the trial court are granted deference if they are supported by adequate, substantial, and credible evidence. Ibid.
The trial court correctly concluded that defendant's petition was filed out of time so far as it challenged the jury's verdict but timely on the issue of an allegedly illegal sentence. Rule 3:22-12(a) provides:
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.
Except to challenge the legality of his sentence, defendant's time for filing a PCR petition lapsed on May 26, 2003, five years after the judgment of conviction was entered. Defendant filed his PCR petition more than two years later.
Defendant states that his failure to file a timely petition was excusable because of his medical condition. He alleges that he is an elderly prisoner suffering from a variety of medical and psychological ailments that prevented him from pursuing his claims on time. Where a defendant claims excusable neglect, the PCR "petition itself must allege the facts relied on to support the claim." State v. Mitchell, 126 N.J. 565, 577 (1992). "If the petitioner does not allege sufficient facts, the Rule bars the claim." Id. at 576. Here, the petition itself does not contain specific factual allegations from which a court could conclude that defendant was too ill to file a PCR petition for almost five years after the Supreme Court denied certification of his direct appeal.
In addition, as an inmate at the Avenel prison and treatment center for sex offenders, defendant should have obtained medical records to support his claims of medical or psychological conditions causing delay. Defendant presented no such records. We agree with the trial judge's conclusion that the petition does not show defendant suffering from such a serious medical or psychological condition that delay in filing a PCR petition is excusable.
Defendant also says that delay was due to confusion created by the Office of the Public Defender about representing him. He refers to two letters from that office, dated November 24, 2003 and July 29, 2004, that apparently were in response to inquiries by defendant. Defendant does not explain how these letters, sent approximately six months and fourteen months after the five-year period had expired, prove an excuse to miss the May 26, 2003 deadline for filing his PCR petition. It appears that defendant did not make inquiries of the Public Defender's Office until the time for filing a PCR petition had already passed.
We conclude that the record fully supports the trial court's determination that defendant failed to show excusable neglect for filing his petition beyond the five-year time limitation.
Next, defendant relies on case law that recognizes exceptions from the strict time limit in the interests of justice. State v. Mitchell, supra, 126 N.J. at 576-79; accord State v. Afanador, 151 N.J. 41, 52 (1997). He contends that his constitutional claims of ineffective assistance of counsel and other trial errors establish that his conviction is unjust and should be set aside.
A defendant must show exceptional circumstances for relief from the time limitation of Rule 3:22-12(a). Mitchell, supra, 126 N.J. at 579. Defendant must articulate specific facts that if believed would show that the interests of justice require his untimely claims to be heard. Ibid. "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." Id. at 580.
The PCR court here found that the State would be prejudiced if it were required to retry the case more than nine years after defendant's conviction. We must consider the potential prejudice to the State in comparison to the importance and likely merit of defendant's claims.
Some of the underlying trial errors alleged on behalf of defendant by PCR counsel were already considered and rejected by the trial and appellate courts. For example, defendant alleges that his trial attorney told him to stop taking his many medications before he was scheduled to testify, and ceasing his medications caused him to break down on the witness stand and become confused and forgetful. He has presented a January 2007 report of a psychiatrist to support his claim that abruptly stopping his regimen of medications was likely to cause lapses of memory and thus affect defendant's competency to testify. The trial transcript shows that, after his attorney requested an adjournment of the trial during defendant's cross-examination, the trial court considered the issue in depth and determined that defendant was competent to testify. This court affirmed that finding on direct appeal. State v. Mitzenius, supra, No. A-5579-97T3 (slip op. at 13-14). Claims that were actually considered and decided in a prior proceeding are barred by Rule 3:22-5 from further litigation through a PCR petition. State v. Marshall, 173 N.J. 343, 350-53 (2002); State v. McQuaid, 147 N.J. 464, 484 (1997).
Additionally, several allegations of trial error refer to matters that could have been raised in the trial court or on direct appeal but were not. Such claims are barred in a PCR petition by Rule 3:22-4. State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div. 1998), modified on other grounds, 162 N.J. 240 (2000). For example, defendant argues that the jury charge could have misled the jury to suspect that defendant had engaged in sexual activity with much younger children. The jury knew the ages of the five victims and saw them firsthand in the courtroom when they testified. The jury understood what the allegations were. Although defendant's argument about the jury charge could have been made earlier, it would not have been successful.
Defendant also argues that the trial court erroneously barred his attorney from cross-examining one of the young victims about an earlier false accusation of sexual abuse. See State v. Guenther, 181 N.J. 129 (2004). This issue could also have been raised on direct appeal, but it, too, was without merit. The trial judge sustained the prosecutor's objection to the proposed line of cross-examination because defense counsel had nothing but bare hearsay in a DYFS report to support the allegation. DYFS had not investigated or made any determination about whether the witness had made a false accusation. In contrast, the child-witness in Guenther had admitted making an earlier false accusation. Id. at 132-33.
A trial court is granted broad discretion to control the extent and manner of cross-examination. N.J.R.E. 611(a); State v. Jones, 346 N.J. Super. 391, 405 (App. Div.), certif. denied, 172 N.J. 181 (2002). The court has discretion to limit cross-examination where the potential for prejudice substantially outweighs the probative value of the questioning. N.J.R.E. 403. Here, defendant's basis for attempting to impeach the witness with a prior false accusation was so unreliable that the trial court could properly exercise its discretion to bar the subject from the jury's hearing. See State v. Spencer, 319 N.J. Super. 284, 305 (App. Div. 1999).
Of the multitude of arguments attempted in defendant's pro se briefs, the majority are alleged trial or grand jury errors that similarly were raised and decided previously, or should have been raised before the trial court or on direct appeal. None of them rises to the level of exceptional circumstances showing an unjust conviction.
In the brief filed by PCR counsel, defendant alleges ineffective assistance of counsel in several respects that could not have been raised during trial or on direct appeal. As to these issues, defendant must allege specific facts from which this court could find justification to permit the late filing of his PCR petition. State v. Mitchell, supra, 126 N.J. at 578-79.
In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), the United States Supreme Court identified a two-part test for evaluating claims of ineffective assistance of counsel.
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
To satisfy the second part of the Strickland test, "[t]he defendant must show 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 standard was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42 (1987).
Defendant alleges that his trial counsel failed to take any action after learning during jury selection that a juror knew the defendant through church activities. Defendant's trial attorney learned of the juror's possible acquaintance with defendant in time to exercise a challenge but did not do so, and did not otherwise raise the matter with the court. Defendant has not alleged that he lacked peremptory challenges to excuse the juror out of the twenty afforded him by Rule 1:8-3(d). In a trial where defendant presented twenty character witnesses, some of whom were members of the community familiar with his work in the church, the record suggests a strategic decision of defense counsel to retain the juror. Strategic decisions are not the same as deficient performance of counsel.*fn2 State v. Arthur, 184 N.J. 307, 320-21 (2005).
With respect to defendant's allegations that his attorney failed to conduct an adequate investigation, he only points to his attorney's lack of knowledge that a chiropractor who testified for the State was licensed in New York but not in New Jersey. Failure to cross-examine the chiropractor about his state of licensure was hardly an error so serious that defendant was deprived of a fair trial.
Defendant contends that his trial attorney was ineffective because he failed to request a change of venue. He alleges that pretrial publicity and community animus influenced the jury's verdict against him. Change of venue because of pretrial publicity is a matter that should have been raised and addressed before or during jury selection. But defendant has not pointed to any part of the trial record showing juror bias because of publicity. In particular, nothing has been shown from the extensive voir dire of the jurors to suggest a tainted jury. Without a showing of jury bias, there is no reasonable probability that the result of the proceeding would have been different.
Defendant also claims that his trial attorney failed to advise him about whether he could testify on matters revealed to him in confidence as a religious counselor. The record shows that, when defendant inquired on the witness stand about whether he could reveal such communications, both the trial judge and defendant's attorney instructed him that no privilege applied and he was free to testify about previously confidential matters. In addition, during his testimony, defendant made several allegations of misconduct by the victims. Defendant has not revealed what further information he mistakenly withheld that could have assisted his defense.
Concerning the claim that his trial attorney did not consult with him about plea bargaining or plea negotiations, defendant has not alleged specific facts regarding what plea offer he would have accepted had it been made. The court has nothing that could support a conclusion that defendant was either misled into declining a favorable plea offer or was not told of all available plea offers. Cf. State v. Taccetta, 351 N.J. Super. 196 (App. Div.), certif. denied, 174 N.J. 544 (2002)(ineffective assistance where defense counsel failed to advise defendant accurately about the consequences of the plea offer).
Defendant finds fault with his appellate attorney in not raising many issues on appeal that he now claims warrant a new trial. Appellate counsel has no duty to raise on appeal every non-frivolous argument available to a defendant. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed. 2d 987, 993 (1983). "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Id. at 751-52, 103 S.Ct. at 3313, 77 L.Ed. 2d at 994. Furthermore, appellate counsel must "examine the record with a view to selecting the most promising issues for review." Id. at 752, 103 S.Ct. at 3313, 77 L.Ed. 2d at 994. Defendant has no evidence to suggest that appellate counsel did not thoroughly examine the record and select the most promising issues in his professional judgment.
In sum, defendant has not alleged or articulated specific facts from which this court might conclude that his attorney either performed deficiently or, if he did, that the alleged deficiency led to an unfavorable verdict at trial. He has not alleged specific facts that, if true, would establish both parts of the Strickland test, or show exceptional circumstances that would justify a departure in the interests of justice from the requirement of Rule 3:22-12(a) that a PCR petition be filed within five years.
In addition, the PCR court did not abuse its discretion in denying the petition without holding an evidentiary hearing. State v. Marshall, supra, 148 N.J. at 157-58; R. 3:22-10. Although an evidentiary hearing may be required where ineffective assistance of counsel is alleged and matters beyond the trial record must be examined, State v. Preciose, 129 N.J. 451, 462 (1992), the threshold issue before the PCR court was whether defendant had alleged specific facts to establish exceptional circumstances justifying departure from the five-year time bar. Cf. State v. Norman, 405 N.J. Super. 149, 162 (App. Div. 2009)(interests of justice required consideration of PCR petition out of time where defendant specifically pointed to inadequate factual basis in guilty plea). To decide whether exceptional circumstances have been shown, the PCR court could reasonably exercise its discretion to rely on the papers submitted and arguments of counsel.
As an alternative to a new trial, defendant contends that his sentence was illegal. There is no time limitation to attacking an illegal sentence. R. 3:22-12(a); State v. Paladino, 203 N.J. Super. 537, 549 (App. Div. 1985); State v. Sheppard, 125 N.J. Super. 332, 336 (App. Div.), certif. denied, 64 N.J. 318 (1973). Post-conviction relief may be granted where the sentence imposed is "in excess of or otherwise not in accordance with the sentence authorized by law." R. 3:22-2(c); State v. Flores, 228 N.J. Super. 586, 591 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989).
Citing Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004), defendant argues that the sentencing judge violated his constitutional rights when he relied on facts that can only be determined by a jury. After Blakely, the New Jersey Supreme Court abolished presumptive terms in the State's Criminal Code to bring the Code into compliance with federal constitutional requirements. State v. Natale, 184 N.J. 458, 487-88 (2005). The Court held in Natale that its decision would have "pipeline retroactivity" and thus should be applied "to defendants with cases on direct appeal as of the date of [the] decision and to those defendants who raised Blakely claims at trial or on direct appeal." Id. at 494.
Defendant contends that he is entitled to the retroactive benefit of the Court's decision in Natale because his appellate counsel did not challenge any aspect of his sentence on direct appeal. Defendant's direct appeal was decided in April 2000, long before the Blakely decision. His attorney's failure to raise a constitutional issue not yet established can hardly be faulted. The pipeline retroactivity of Natale does not apply to defendant's sentence.
Furthermore, imposition of consecutive terms and parole ineligibility does not by itself require factual findings by a jury. In State v. Abdullah, 184 N.J. 497, 515 (2005), the Court held that "judicially-imposed parole disqualifiers . . . and judicially-imposed consecutive sentences do not violate the Sixth Amendment." In addition, claims relating to imposition of consecutive sentences or periods of parole ineligibility "relat[e] to the 'excessiveness' of the sentences, rather than their legality" and, as such, are not cognizable in post-conviction relief proceedings. State v. Flores, supra, 228 N.J. Super. at 596-97. Defendant's sentence was not illegal.