April 21, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
STANLEY WHITE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 91-08-2019.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 20, 2009
Before Judges R. B. Coleman and Simonelli.
Defendant Stanley White appeals an order dated March 30, 2007, denying his petition for post-conviction relief (PCR). We affirm.
On February 2, 1994, at the conclusion of the trial that commenced on January 25, 1994, a Camden County jury found defendant guilty of kidnapping, N.J.S.A. 2C:13-1(b); four counts of sexual assault, N.J.S.A. 2C:14-2(b); and endangering the welfare of a child, N.J.S.A. 2C:24-4(a). He was found not guilty of two counts of first-degree attempted aggravated sexual assault and possession of a weapon for an unlawful purpose. At the sentencing hearing on December 9, 1994, the court imposed a term of life imprisonment with twenty-five years of parole ineligibility on the kidnapping count; all other sentences were to be served concurrently with each other and with the sentence imposed for kidnapping.
Defendant appealed and his conviction and sentence were affirmed by an unpublished opinion of this court issued on May 18, 1998. A brief recitation of the underlying facts were presented in that opinion and need not be repeated herein.
Significantly, defendant relied upon an alibi defense. In addition to his own testimony, defendant relied upon the testimony of his girlfriend, Ramona Kemp, and his neighbor, Joseph Lytle. Kemp testified that on the Friday evening when the subject incident allegedly occurred, defendant was home with her. She recalled the date because it was her brother's birthday, and she recalled defendant had been arrested on Sunday. Lytle testified that on April 6, 1991, he was baby-sitting his sister's children. As he recalled, it was a Friday with a lot of activity on nearby Mt. Ephraim Avenue. Lytle said that he came out onto his porch around 6:00 p.m. and spoke to defendant. Lytle remained outside until 8:30 p.m., but defendant went inside after a while and did not return.
Defendant testified that he stayed home on April 6, 1991, working around the home and playing with his children. Sometime between 5:00 p.m. and 8:30 p.m., he went out to the porch where he saw his neighbor Lytle. Defendant asserted that he did not leave the house, and he denied attacking the victim. On cross-examination, defendant stated that the events he had described happened on a Friday night. He could not recall the dates, but was sure he was arrested on a Sunday. At this point, the prosecutor asked the judge to take judicial notice that in 1991 April 5 was a Friday, April 6 was a Saturday, and April 7 was a Sunday.
During his summation to the jury, defense counsel acknowledged that the witnesses gave an alibi defense for Friday evening while the attack occurred on Saturday. Nevertheless, counsel argued that defendant was believable and that he had not changed his story after this error was revealed.
In considering defendant's argument on the direct appeal that he had been denied effective assistance of counsel, the reviewing panel concluded that the claim was premature and should await a post-conviction relief application at which time a more complete and focused record could be developed. The panel specifically noted that "[w]hether defendant had an alibi for the date of the alleged incident or could have offered evidence concerning his whereabouts on Saturday, April 6, cannot be established on this record."*fn1
The decision affirming defendant's conviction and sentence was filed on May 18, 1998. On December 5, 2002, almost eight years after the December 16, 1994 judgment of conviction was entered and four and a half years following our decision affirming the conviction, defendant filed his petition for PCR. That petition was denied without the appointment of counsel on February 10, 2003, and on March 3, 2003, defendant filed a pro se appeal from the denial of his PCR petition. On May 14, 2003, defendant's motion to proceed as an indigent and for assignment of counsel was granted, and on August 21, 2003, the order of February 10, 2003, was reversed and remanded so that defendant could proceed with counsel. Defendant's appointed counsel filed an amended petition for PCR. That petition was denied by an order dated March 30, 2007, and this appeal ensued.
Defendant raises the following issues on appeal:
POINT I: DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD NOT BE TIME BARRED BECAUSE DEFENDANT'S DELAY IN FILING WAS DUE TO EXCUSABLE NEGLECT AND THE INTERESTS OF JUSTICE REQUIRE IT BE HEARD.
POINT II: DEFENDANT IS ENTITLED TO POST CONVICTION RELIEF BECAUSE HIS TRIAL ATTORNEY FAILED TO ADEQUATELY INVESTIGATE THE FACTS OF THE CASE AND FOR HAVING PREPARED ALL ALIBI WITNESSES FOR A DAY OTHER THAN THE DAY OF THE ALLEGED CRIME.
POINT III: DEFENDANT HAS SET FORTH A PRIMA FACIE CASE WHICH MANDATES REMAND FOR AN EVIDENTIARY HEARING.
We discuss each in turn.
Defendant claims that he presented sufficient evidence to overcome the five-year time bar to PCR pursuant to Rule 3:22-12, which provides:
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 delay.
Defendant contends that he was unaware of the PCR process or the time-bar until after his direct appeal had concluded, and therefore, the time bar should not have commenced until that time of his discovery. The law on this point requires a different result.
The five-year limitation in Rule 3:22-12 commences upon the actual entry of the judgment of conviction and is not stayed nor tolled by other review proceedings. State v. Dugan, 289 N.J. Super. 15, 19 (App. Div.), certif. denied, 145 N.J. 373 (1996). The entry date of the initial judgment of conviction controls even where subsequent sentencing proceedings occur. Ibid. Where post-conviction relief petitions are concerned, the time-bar embodied in Rule 3:22-12 will only be relaxed in exceptional circumstances. State v. Afanador, 151 N.J. 41, 52 (1997) (citing State v. Mitchell, 126 N.J. 565, 580 (1992)). In such circumstances, the three factors a court must consider prior to relaxing the rule is "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. (citing Mitchell, supra, 126 N.J. at 579). A defendant's lack of sophistication in the law, however, will not satisfy the exceptional circumstances standard required under Mitchell. See State v. Murray, 162 N.J. 240, 246 (2000).
Moreover, our Supreme Court has cautioned that "[a]chieving 'justice' years after the fact may be more an illusory temptation than a plausibly attainable goal when memories have dimmed, witnesses have died or disappeared, and evidence is lost or unattainable." Mitchell, supra, 126 N.J. at 575-76. Thus, as more time passes it becomes increasingly necessary for a reviewing panel to adhere to the limitations of the rule to "allay the uncertainty associated with an unlimited possibility of re-litigation." Ibid. Petitioners are therefore strongly encouraged to exercise their rights without undue delay while there is still time for a court to render justice. State v. McQuaid, 147 N.J. 464, 485 (1997) (citing Mitchell, supra, 126 N.J. at 575-76).
Here, defendant's judgment of conviction was entered on December 12, 1994, yet his PCR petition was not filed until eight years later, on December 5, 2002. The only "exceptional circumstances" evidence defendant has offered is his unfamiliarity with the judicial process regarding PCR petitions. When his direct appeal was decided in May 1998, defendant was informed the PCR process was the proper avenue for him to pursue his ineffective assistance of counsel claims. At that time, there were seven months for defendant to file his petition prior to the bar taking effect. By waiting until December 2002, to file a pro se petition, three and a half years after he was expressly put on notice of the proper procedure, defendant allowed the opportunity to expire. We are, therefore, satisfied that the PCR judge correctly concluded that defendant's petition is barred by Rule 3:22-12.
Defendant cannot now maintain excusable neglect. Nor do we find merit in defendant's "in the interests of justice" claim. Nevertheless, because the PCR judge addressed the merits of defendant's petition, we shall also, in the interest of completeness, discuss the remaining issues raised by defendant.
Defendant alleges he received ineffective assistance of counsel because his attorney prepared the alibi witnesses to testify for a day other than the day of the attack.
The timeline for the alibi testimony at issue is a Friday, Saturday, and Sunday - April 5, 6, and 7 respectively. The victim, L.E., was attacked on Saturday, April 6, 1991. Ramona Kemp, defendant's girlfriend, purported to offer testimony to establish defendant's whereabouts on the date of the attack, but her testimony is rather ambiguous. For example, on direct examination, the focus was on the date, as defense counsel asked Kemp:
Q: Now, on April 6 of '91, why would you remember that date?
A: That's my brother's birthday and we was [sic] discussing whether we should get him a birthday card or not.
On cross-examination, however, the prosecutor asked Kemp about the day of the week:
Q: And you testified that you remember the day because it was a Friday and it was your brother's birthday. Is that correct?
The testimony of the neighbor John Lytle was also not definitive in establishing an alibi defense for defendant but not due to any lack of effort on the part of defendant's attorney. On direct examination, defense counsel laid the foundation for all subsequent questioning of Lytle:
Q: Now, focusing your attention on April 6, of '91, do you recall that date?
Lytle then testified as to events occurring on April 6, 1991, which defense counsel had established at the outset as Saturday. However, later in the questioning the witness gave the following contradictory answer:
Q: And were there any other adults out and about on the street?
A: Yeah. It was Friday, man.
Q: And what was traffic like?
A: Like I said again, it was Friday, you know. Friday night's pretty busy on Mount Ephraim Avenue.
In concluding his examination of Lytle, defense counsel confirmed the date at issue with the witness:
Q: You're positive about the date that all this took place?
Q: You're positive about the times, approximations of times?
A: Yes, sir.
Once again, the prosecutor posed his questions with reference to the day of the week as opposed to the calendar date. The cross-examination included the following:
Q: And you're absolutely sure that you remembered seeing Stanley White being home on Friday night. Is that correct?
A: Stan was home Friday. Stan was in the house. Like I said, he was in the house on Friday.
Q: And so you left your house about 5:00 or 6:00 on Saturday?
A: In the afternoon?
Q: 5:00 or 6:00 is late afternoon, early evening?
A: Yes, sir.
Q: And what time did you come home, do you remember?
A: About 2:00 in the morning.
Q: And you saw defendant get arrested the following day on Sunday?
A: Yes, sir. . . . .
Q: Okay. So let me get this straight. you remember seeing Stanley White on the porch Friday night, correct?
A: Yes, sir.
Q: And Saturday you went to your girlfriend's at 5:00?
A: Uh huh (affirmative).
Q: And you came home at 2:00 a.m.?
A: Yes, sir.
Q: And Sunday you were present when the defendant was arrested. Is that correct?
A: Yes, sir.
Defendant submits no evidence, affidavits or certifications from Kemp, Lytle or anyone else that defense counsel was in any way responsible for the witnesses' confusion in matching the days of the week with the calendar dates. Counsel's questioning did not deviate from April 6, 1991, as the date of the attack. Yet, in his summation, defense counsel recognized the anomaly in dates and said the following:
Now, I have to apologize to both Mr. White and the jury for wasting your time having prepared my witnesses for the wrong evening of an alibi defense. However, under the circumstances, there are still facts that we can take into consideration . . . . When confronted by the anomaly in the dates, Mr. White didn't change his story. That goes to his credibility. He could have started backtracking and hemming and hawing and trying to say, well, I really meant Saturday, not Friday. So when considering his testimony, please look at when he had the opportunity to lie, he didn't, and he was faced with a pretty big anomaly. We had been discussing the 6th as if it was Friday from the beginning of trial until his last questioning.
The benchmark for any claim of ineffectiveness is a finding that counsel's conduct was so egregious it undermined the adversarial process, making the outcome of the trial unjust. Strickland v. Washington, 466 U.S. 668, 686 (1984); see also State v. Fritz, 105 N.J. 42 (1987) (following the two prong-test in Strickland). Courts look to whether there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
To maintain a claim of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test in Strickland. First, defendant must establish that counsel's performance was, in fact, deficient. Strickland, supra, 466 U.S. at 687. This requires showing that the errors made by counsel were of such magnitude that counsel was not functioning as "counsel" as afforded a defendant by the guarantees in the Sixth Amendment. Ibid. Second, the defendant must "show that the deficient performance prejudiced the defense." Ibid. This requires defendant to show that counsel's deficiencies were so serious that they "deprive[d] the defendant of a fair trial, a trial whose result is reliable." Ibid. Absent meeting both prongs of the Strickland test, defendant cannot establish that his conviction was an unreliable result due to a breakdown in the adversarial process. Ibid.
When evaluating an ineffective assistance claim, "'[j]udicial scrutiny of counsel's performance must be highly deferential,'" and must avoid viewing the performance under the "'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689). Moreover, there is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690. Adequate assistance of counsel should be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 60-61. That standard does not require "the best of attorneys," but rather requires that attorneys be "not . . . so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989). Thus, the 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.'" Ibid. (quoting Strickland, supra, 466 U.S. at 692-93). "Reasonable probability" means "'a probability sufficient to undermine confidence in the outcome.'" Ibid. (quoting Strickland, supra, 466 U.S. at 694).
A valid conviction will not be overturned merely because defendant is dissatisfied with counsel's exercise of judgment during trial. State v. Coruzzi, 189 N.J. Super. 273, 319-20 (App. Div.), certif. denied, 94 N.J. 531 (1983). Simple mistakes, bad strategy, or bad tactics "do not amount to ineffective assistance of counsel unless, taken as a whole, the trial was a mockery of justice." State v. Bonet, 132 N.J. Super. 186, 191 (App. Div. 1975). The simple fact that a trial strategy fails does not necessarily mean that counsel was ineffective. State v. Bey, 161 N.J. 233, 251 (1999) (citations omitted). State v. Marshall, 122 N.J. 1, 165 (1991), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed. 2d 694 (1993).
On direct appeal, defendant raised ineffective assistance of counsel claims which were deemed premature because the ability of the defendant to establish an alibi defense could not be determined on the existing record. In the subsequent position, defendant has offered no new evidence outside of the record. No affidavits or certifications or testimony was presented to show that counsel misled or confused the witnesses and but for counsel's conduct, the testimony would have been different. Accepting that the alibi testimony may not have been very helpful to defendant, there is no basis to fault the attorney, as opposed to the witnesses themselves. In the end, we find defendant fails to prove his claim of ineffective assistance of counsel.
Finally, we reject defendant's claim that he is entitled to an evidentiary hearing to investigate his alleged ineffective assistance of counsel claims. A defendant seeking to vacate a conviction on grounds of ineffective assistance of counsel is not automatically entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992) (citing R. 3:22-1).
The trial court is not required to hold an evidentiary hearing unless the defendant presents a prima facie case supporting the application. Ibid.; accord State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). "[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance" State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999), certif. denied, 162 N.J. 199 (1999); see also State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007).
When claiming trial counsel inadequately investigated his or her case, the petitioner "must assert the 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." Cummings, supra, 321 N.J. Super. at 170 (citing R. 1:6-6). A defendant must demonstrate how a more thorough investigation or preparation for trial would have had the likelihood of changing the outcome of the trial.
The trial court has discretion to conduct such a hearing if the defendant has established a prima facie case of ineffective assistance of counsel. Preciose, supra, 129 N.J. at 462. However, if the "court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." Marshall, supra, 148 N.J. at 158 (citations omitted).
Here, defendant's assertions are unsupported as no other evidence has been proffered in support of his claims. Defendant has completely failed to satisfy the two-prong test under Strickland/Fritz. Since defendant could not demonstrate a reasonable likelihood of success on the merits, the PCR court properly denied his request for an evidentiary hearing.