May 26, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KNUD FERDINAND, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 96-10-1939.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 22, 2009
Before Judges Stern and Espinosa.
Defendant appeals from the denial of his petition for post-conviction relief and request for an evidentiary hearing. We affirm.
Defendant was indicted on October 15, 1996, and pled guilty on January 27, 1997, to a fourth degree charge of enticing a child, N.J.S.A. 2C:13-6,*fn1 pursuant to a negotiated plea agreement. As part of the factual basis for his guilty plea, defendant admitted that he attempted to entice a female less than eighteen years old into his automobile for the primary purpose of having sexual intercourse with her. He was sentenced to probation for two years on March 14, 1997.
Defendant was later convicted of second degree sexual assault and disorderly persons offenses of simple assault and impersonating a police officer, arising from an assault that occurred in September 1999, just eighteen months after he was placed on probation for the instant offense. On January 7, 2000, defendant was sentenced on the sexual assault conviction to nine years imprisonment with a parole ineligibility period pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2a, and to concurrent terms for the disorderly persons convictions. He was incarcerated from January 7, 2000, until May 6, 2006.
On December 20, 2006, approximately ten years after he was sentenced on the enticing a minor conviction, defendant filed this petition for post-conviction relief. Defendant states that his attorney "operated under a conflict of interest because, at the time he represented defendant, counsel was indicted and resolved [sic] his own criminal charges in Hudson County." As a result, defendant contends, he was denied the effective assistance of counsel.
Defendant asserts that he retained James R. Lisa to represent him in this matter in April 1996. On July 3, 1996, Lisa was charged in a municipal complaint with possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a, and two disorderly persons offenses: being under the influence of a controlled dangerous substance without a prescription, N.J.S.A. 2C:35-10b, and use of drug paraphernalia, N.J.S.A. 2C:36-2. Lisa was never indicted on these charges. He was admitted into the Pretrial Intervention Program (PTI) in Hudson County on October 22, 1996. Lisa's case was transferred to Essex County for supervision, presumably contemporaneously, and he completed PTI on March 5, 1998.
The Supreme Court ordered that Lisa be suspended from the practice of law for three months. Its decision on February 26, 1998, was published, In re Lisa, 152 N.J. 455 (1998).
Defendant raises the following issues on appeal from the denial of his petition:
POINT I THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.
1. DEFENDANT'S PETITION WAS NOT TIME BARRED.
2. DEFENDANT PRESENTED SUFFICIENT FACTS IN HIS PETITION ALLEGING THAT HIS TRIAL COUNSEL OPERATED UNDER A CONFLICT OF INTEREST, WARRANTING AN EVIDENTIARY HEARING BELOW.
Defendant's allegation of a conflict of interest rests upon an application of State v. Cottle, 194 N.J. 449 (2008), in which the Supreme Court held that an attorney has a per se conflict of interest when both he and his client are simultaneously under indictment in the same county and being prosecuted by the same prosecutor's office. Without an informed waiver made in court and on the record, prejudice will be presumed, rendering the representation ineffective. [Id. at 452. (emphasis added).]
The Supreme Court described the situation in Cottle as the "unseemly appearance of an attorney entangled in a conflict that pitted his personal welfare against his professional obligations to his client." Ibid. The juvenile charged with murder in that case denied his guilt and claimed an alibi that was not investigated by his attorney. The attorney had been indicted and remained subject to that indictment throughout the period that he was in the PTI program. Id. at 460-61 n.4. The terms of his admission into the PTI program included continued psychiatric treatment, quarterly reports from his mental health provider to the Prosecutor's Office and a requirement that he report any changes in the course of his treatment "immediately" to the Prosecutor's Office. Id. at 454. The attorney was also required to have each client sign an acknowledgment of his PTI participation and then submit copies of the acknowledgment to both the PTI program and the Prosecutor's Office, an obligation the Court found "[m]ost significant" to the appeal. Ibid. There was no evidence that the defendant was ever so advised or signed such an acknowledgment. Ibid. Although the Court's holding made a showing of prejudice unnecessary, the Court identified numerous deficiencies in the attorney's preparation and performance at trial.
As a preliminary matter, defendant admitted his guilt by entering a guilty plea and has not disavowed that testimony. To place Lisa's status within the context of defendant's criminal history, at the time that defendant retained Lisa in April 1996, no charges were pending against Lisa. The municipal complaint was not filed against him until July 1996. He was admitted to PTI in Hudson County--without ever being indicted--one week after defendant was indicted. Thereafter, he was under the supervision of the Essex County Probation Department and not subject to any requirement that required him to report to the Hudson County Prosecutor's Office.*fn2
In any event, defendant's petition is time-barred. Rule 3:22-12(a) provides in pertinent part:
No . . . petition [for post conviction relief] 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.
Defendant seeks to avert the five-year time limit for the filing of his petition by arguing that his decade-long failure to file his petition was due to excusable neglect. "The concept of 'excusable neglect' encompasses more than simply providing a plausible explanation for a failure to file a timely PCR petition." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). To be entitled to a relaxation of the Rule based upon excusable neglect, the petitioner must "allege facts demonstrating that the delay was due to the defendant's excusable neglect" and, "[i]f the petitioner does not allege sufficient facts, the Rule bars the claim." State v. Mitchell, 126 N.J. 565, 576 (1992).
Defendant's certification presents only the following facts to explain the ten-year delay:
4. After my release from prison on May 6, 2006, for an unrelated matter, I learned my attorney had a pending criminal charge in the same county, at the same time as my matter.
5. My attorney never informed me of his legal problems. Had I known, I would not have retained him on or about April 2, 1996. Defendant's incarceration for the September 1998 assault is plainly insufficient to excuse the ten-year delay. Lisa's discipline was a matter of public record in February 1998, more than six months before defendant committed the offense on September 10, 1998. Defendant's incarceration on that unrelated charge began in January 2000, nearly two years after Lisa was publicly disciplined. Other than the incarceration, defendant offers nothing to substantiate his claim that his decade-long neglect was excusable. Therefore, his claim is barred by Rule 3:22-12(a). Mitchell, supra, 126 N.J. at 576-77.