April 7, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KENNETH ELEY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 00-02-0101.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 18, 2009
Before Judges Stern and Rodríguez.
Defendant Kenneth Eley appeals from the July 26, 2007 denial by Judge Allen-Jackson of his first petition for post- conviction relief (PCR) without an evidentiary hearing. We affirm.
Pursuant to a plea agreement, defendant pleaded guilty to three counts of first-degree robbery. In exchange, the State agreed to dismiss related charges and to recommend concurrent eighteen-year custodial terms subject to a NERA*fn1 parole disqualifier. In August 2000, Judge Lisa imposed the recommended sentence. Defendant did not appeal. However, a year later, defendant moved for reconsideration of the sentence. Judge Tomasello denied the motion.
The salient facts of the offense are as follows. Within a few months, there were three robberies of young women at knifepoint by a young man at the Crossings Apartment Complex. The modus operandi for each robbery was similar. On each occasion, defendant would approach the victim and ask for directions to a certain apartment. He would then produce a knife and demand that the victim give up her pocketbook.
Police set up a surveillance of the complex. Eventually, they saw a young man fitting the description wandering the hallways of the complex. They determined that the vehicle he was driving belonged to his girlfriend. Police contacted the girlfriend. Sometime later, they learned that defendant was at the girlfriend's apartment. The police attempted to arrest him, but defendant would not give up voluntarily. A police dog was used to locate defendant in the attic of the girlfriend's house. The dog bit defendant several times. Defendant was then arrested and taken to a hospital. Later that day, after being given Miranda*fn2 warnings, he admitted to attempting to hide, fleeing from the police, and robbing the three victims.
Almost six years after the date of conviction, defendant filed pro se a first PCR petition. Judge Tomasello assigned PCR counsel, who submitted a brief in support of the PCR application. The PCR petition alleged that trial counsel rendered ineffective assistance by: (1) barely preparing or investigating the case; and (2) not challenging the admissibility of defendant's confession or the photographic identifications by these victims. In support of the petition, defendant submitted several police reports that were part of the discovery. He also submitted a half-page affidavit that he met with trial counsel for about thirty minutes. Trial counsel did discuss defendant's "total [sentence] exposure," but no discussion of a Miranda hearing, or other pretrial motions.
There is no assertion of innocence or a rejection of the confession.
Judge Allen-Jackson denied the petition because it was time barred pursuant to Rule 3:22-12(a). The judge also found that an evidentiary hearing was not required.
Defendant contends on appeal:
I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR [PCR] WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE WAS DENIED ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. The Prevailing Legal Principles Regarding Claims of Ineffective Assistance Of Counsel, Evidentiary Hearings and Petitions for [PCR].
B. The Defendant Was Denied Adequate Legal Representation At The Trial Level By Virtue Of Counsel's Failure To Conduct a Meaningful Pretrial Investigation and To Meet With The Defendant to Review Discovery, Discuss Potential Defenses and Explore Viable Motions Available To Him.
C. Trial Counsel Was Remiss By Failing To Make A Motion Seeking To Suppress The Defendant's Statement Obtained By The Police.
D. Trial Counsel Provided No Legal Representation Whatsoever At Sentencing On Behalf Of The Defendant.
E. Trial Counsel Was Remiss By Failing To Make A Motion Seeking To Suppress The Photographic Identifications Made By Two Of The Victims.
F. Since The Defendant Presented A Prima Facie Case Of Ineffective Assistance Of Trial Counsel, The Trial Court Erred By Failing to Afford The Defendant An Evidentiary Hearing To Fully Address This Contention.
II. THE TRIAL COURT ERRED BY DENYING THE DEFENDANT'S PETITION FOR [PCR] ON THE BASIS THAT IT WAS TIME-BARRED PURSUANT TO RULE 3:22-12.
III. ASSUMING THE TRIAL COURT PROPERLY DENIED THE DEFENDANT'S PETITION FOR [PCR] ON THE BASIS THAT IT WAS TIME-BARRED PURSUANT TO RULE 3:22-12, THE DEFENDANT WAS DENIED ADEQUATE LEGAL REPRESENTATION AT THE [PCR] LEVEL AS A RESULT OF [PCR] COUNSEL'S FAILURE TO ADDRESS THE APPLICABILITY OR NON-APPLICABILITY OF RULE 3:22-12 TO THE DEFENDANT'S PETITION BY PROVIDING DOCUMENTATION DEMONSTRATING THE EXISTENCE OF "EXCUSABLE NEGLECT."
We disagree with these contentions.
We agree with Judge Allen-Jackson that the PCR petition is time barred pursuant to Rule 3:22-12(a). There is no showing that defendant seeks to correct an illegal sentence, nor that the delay was due to excusable neglect by defendant. Ibid. We also note that the petition is barred because these claims could have been raised on direct appeal. R. 3:22-4.
Moreover, we also reject defendant's claim on the merits. When alleging that trial counsel failed to conduct a pretrial investigation or interview witnesses, a defendant "must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Further, when a defendant alleges that his or her attorney inadequately investigated the case, defendant must assert "facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid. See also State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002) (discussing a defendant's burden in proving that counsel was ineffective for failure to present a witness).
Here, defendant has not made a prima facie showing of ineffective assistance. He has not presented affidavits or certifications to support his assertions. The affidavit he did present is not sufficient to support a claim of ineffective assistance of counsel due to failure to prepare or investigate. Our review of the record does not disclose any deficiency by trial or PCR counsel in their actual representation of defendant. Further, there was substantial evidence against defendant. There is a confession by defendant, as well as positive identification by the three victims. Trial counsel's representation, no matter how effective, cannot alter the evidence and the inferences to be drawn therefrom. In short, even if the PCR petition had been filed in time, defendant did not make a prima facie showing of ineffective assistance of trial counsel.