June 30, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GEORGE LIMITE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 87-11-1353.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 23, 2009
Before Judges Carchman and Sabatino.
Defendant George Limite appeals from an order of the Law Division denying his petition for post-conviction relief from his convictions for aggravated manslaughter and various related drug crimes. We affirm.
These are the relevant facts. Between May 1, 1983 and October 25, 1984, defendant and Elizabeth Hoy sold cocaine in Bergen and Passaic Counties. Defendant had a relationship with Hoy, and they had an arrangement where defendant would give her cocaine instead of money for living expenses. Defendant also would barter cocaine to associates in exchange for various favors including on occasionally giving cocaine in return for a ski trip, for car repairs, as well as providing drugs for Hoy's roommate and friends.
One of defendant's friends, Ann Mankus, became indebted to suppliers for drugs that she had purchased. In response, defendant "set up a deal" to assist her in repaying her debts by giving her a consignment of drugs for sale to a client. With this arrangement, Mankus could repay her suppliers, and defendant would make a substantial amount of money. When defendant discovered that Mankus was using the drugs that he gave her, he wanted to terminate "the deal." As defendant insisted that Mankus return the drugs, she pushed defendant.
He, in turn, struck Mankus, and she fell to the floor. As Mankus jumped back up with an object in her hand, defendant struck her in the face. He then strangled her, fracturing cartilage in her neck. Defendant and Hoy then wrapped Mankus' body in sheets and dumped her body in New York City.
On October 26, 1984, defendant, was arrested for the murder of Mankus. Thereafter, defendant was indicted for two counts of conspiracy to distribute a controlled dangerous substance (cocaine), N.J.S.A. 2C:5-2 and N.J.S.A. 24:21-19(a)(1); one count of possession of a controlled dangerous substance (cocaine), N.J.S.A. 24:21-20(a)(1); seven counts of distribution of a controlled dangerous substance (cocaine), N.J.S.A. 24:21- 19(a)(1); and one count of murder, N.J.S.A. 2C:11-3(a)(1) and (2).
On March 6, 1990, defendant entered into a plea agreement and pled guilty to one count of conspiracy to distribute a controlled dangerous substance (cocaine); six counts of distribution of a controlled dangerous substance (cocaine); and one count of aggravated manslaughter, N.J.S.A. 2C:11-4. In exchange for the plea, the State agreed to recommend that it would amend the murder charge to a count of aggravated manslaughter and that defendant would receive a maximum thirty- year sentence for all the crimes in the guilty plea comprised of a twenty-year sentence on the aggravated manslaughter charge with ten years of parole ineligibility, to run consecutive to unrelated sentences defendant was serving at the time.
Defendant would also receive a ten-year sentence on all of the drug counts with four and a half years of parole ineligibility to run consecutive to the aggravated manslaughter charge. In sum, the State would recommend a maximum thirty-year sentence with a fourteen and a half-year stipulated parole ineligibility on the charges contained in the guilty plea to the sentence defendant was currently serving.
As a further condition of the plea, defendant agreed to give a statement regarding his involvement in the offenses and that this statement would be fully admissible in any further proceedings against him if defendant were to withdraw his guilty plea or the judge were to reject the State's recommendation.
Further, on March 6, 1990, the State set forth its plea agreement before Judge Kuechenmeister, consistent with the plea agreement. Defendant then gave a factual statement regarding the offenses relating to the guilty plea. Following a voir dire on the plea agreement, the judge found there was an ample factual basis for the entry of the guilty plea, that it was made voluntarily and not as a result of any threats or inducements and that defendant understood the nature of the consequences of the plea.
On April 12, 1990, consistent with the State's recommendation, Judge Kuechenmeister sentenced defendant to twenty years with ten years of parole ineligibility on the aggravated manslaughter charge, a consecutive ten-year term with four-and-a-half years parole ineligibility on the conspiracy to distribute charge, and a ten-year-term with four and a half years parole ineligibility on the distribution charges, to be served consecutively to the aggravated manslaughter charge and concurrent to the conspiracy charge. These sentences were all to be consecutive to the unrelated sentence defendant was already serving.
Fifteen years later, on November 7, 2005, defendant filed a motion to withdraw his plea pursuant to Rule 3:21-1. Judge Meehan reclassified the motion as a motion for post-conviction relief. On February 16, 2007, defendant filed an amended verified petition for post-conviction relief pursuant to Rule 3:22-1. Defendant claimed:
9. Mr. Limite seeks relief from the judgment entered on April 12 and 26, 1990 on the basis that he was denied the effective assistance of counsel in that:
(a) counsel deprived defendant-petitioner of the effective assistance of counsel by failing to afford defendant-petitioner the opportunity to resolve the murder charge brought against him by way of the original 1984 indictment with a mutually agreeable plea bargain. (Unfortunately, the efforts to obtain copies of the 1984 indictment have been unsuccessful due to the age of the case.) Rather, counsel moved to dismiss the indictment without discussing this strategy with Mr. Limite. After the indictment was dismissed, the State obtained superseding Indictment No. 87-11-1353 which included the same murder charge but also included additional drug charges;
(b) counsel deprived defendant-petitioner of the effective assistance of counsel by failing to convey the original plea offer of 20 years Department of Corrections with a mandatory minimum of 10 years extended by the State to defense counsel after the return of the superseding Indictment No. 87-11-1353. Mr. Limite was advised only of the offer of 14 and 1/2 to 30 years Department of Corrections which was made available later in the proceedings. It wasn't until sometime after the sentence that Mr. Limite learned of the initial plea offer. Defendant-petitioner asserts that he would have availed himself of the first plea offer had that offer been conveyed to him by counsel.
10. Mr. Limite seeks relief from the judgment entered on April 12 and 26, 1990 on the basis that his entry into the plea agreement was involuntary.
11. Mr. Limite seeks relief from the judgment entered on April 12 and 26, 1990 on the basis that the factual basis supporting the plea was inadequate.
12. Mr. Limite seeks relief from the judgment entered on April 12 and 26, 1990 on the basis that he received an illegal sentence.
13. For the reasons set forth in paragraphs 9 through 12 of this petition, Mr. Limite alleges that his conviction and the subsequent imposition of sentence in this matter resulted from a substantial denial of rights under the Constitution of the United States and the Constitution and laws of New Jersey. Mr. Limite seeks to have the judgment of conviction and the sentence imposed on Bergen County Indictment No. 87-11-1353 set aside and the case set down for a trial on the relevant charges. Defendant-petitioner further seeks leave to amend this petition, as well as leave to file a supplemental petition and memorandum if it should become necessary to do so.
The judge denied relief and found:
This is a motion that has been captioned for post conviction relief. Originally filed pro se.
Now [defendant] has the Office of the Public Defendant representing him.
On November 30th, 1987 the defendant was indicted on ten counts of drug related charges and one charge of murder in the first degree.
On March 6th, 1990 the defendant signed a plea agreement outlining the factual basis for the crimes committed, and he went through an allocution before Judge Kuechenmeister.
He pled guilty to aggravated manslaughter and drug related charges.
He was sentenced on April 12, 1990 by Judge Kuechenmeister.
Twenty years with ten [years] on the post conviction.
On the aggravated manslaughter and ten with four and a half years on the drug charge. So, a total of thirty years with fourteen and a half period of parole ineligibility.
Now petitioner's motion for post conviction relief is based upon four main arguments.
1. The ineffective assistance of counsel.
2. The guilty plea was involuntarily and unintelligently made.
3. There was an insufficient factual basis for his plea.
4. The defendant's sentence was illegal.
Additionally the defendant states that his claim is not procedurally barred, despite filing this motion ten years after the statutory period and fifteen years after his sentence.
The State's initial argument is that the defendant has far surpassed the allotted five year period for filing a petition for post conviction relief.
As noted in the defendant's brief, the [c]court does have latitude to allow an individual to file a petition out of time, and if the circumstances call for it.
This, of course, this does not warrant such an extension.
Mr. Limite has another matter arising out of Morris County, filed for post conviction relief, and was denied in 1989, and that is even before he became involved in having filed for post conviction relief in this matter.
So, Mr. Limite was not without knowledge of post conviction relief.
What's gone on for ten years in between, there's been no real showing of why he did not make the motion within a reasonable period of time, that's a year or two, not ten years later.
In order to prevail on a claim of ineffective assistance of counsel the Defendant must establish that counsel's representation was not within the range of competence demanded of attorneys in criminal cases. Hill v. Lockhart, 474 U.S. 52, at 56 (1985).
And, furthermore, the Defendant must prove that there is a reasonable probability that but for counsel's error Defendant would not have pleaded guilty and would not have insisted on going to trial. And that's Hill v. Lockhart, at 59.
Again, counsel has a great amount of deference when it comes to deciding which arguments to put forward and the theory of the case.
The attorney need not put forward every conceivable argument in order to protect himself or herself from a claim of ineffective assistance of counsel.
One of the petitioner's arguments is that counsel was able to have a murder complaint dismissed.
The defendant assumes that the State would have put forward a mutually agreeable plea offer.
Lastly, the defendant argues that his attorney never made him aware of the plea offer of twenty years with ten years parole ineligibility for the murder offered by the State.
That is what he pled guilty to.
It started out with murder and ended up as aggravated manslaughter.
Furthermore, the plea agreement eventually agreed to thirty with a fourteen and a half year parole ineligibility period, which encompassed the twenty year with ten as well as an additional ten years for ten counts of various drug charges.
Certainly in regard to this exposure one can't argue that the sentence is disparate to the charges pending.
This Court is reminded Mr. Limite received a very favorable plea agreement by great work done by his counsel.
Also in regard thereto the issues have been raised maybe here more than before, about consecutive and concurrent. But the charge that the plea agreement called for consecutive.
Go to page 3 of Judge Kuechenmeister's acceptance of the plea on March 6th, 1990. [The] second paragraph states:
"In addition, we will recommend that any sentence on the aggravated manslaughter run consecutive to the sentence he is presently being confined for on Morris County charges."
That is Calo speaking on behalf of the State.
And continuing. The end of the third paragraph.
"The State will affirmatively recommend that the ten year term, if the Court so imposes it, run consecutive to the term on the aggravated manslaughter and the four and a half year minimum also run consecutive to the mandatory minimum term. So that would make a thirty year term which Mr. Limite is exposed to, which we will affirmatively recommend run consecutive to the term he is presently serving with a fourteen and a half year maximum mandatory stipulated term before he becomes eligible for parole."
Mr. Limite was clearly told that he faced, that this throughout was present in court, from the very beginning that the sentences would all be running consecutive to each other.
His complaint about it now, over 15 years later, is not of any merit.
He was certainly advised that he would receive, I should say advised the State was going to seek consecutive sentences, and that was made clear in the plea agreement that Mr. Limite signed, as well as put on the record that day, and is in the transcript.
Next there's an argument made that he did not have a sufficient factual basis.
As seen by the transcript of the allocution hearing he certainly admitted to the killing and he certainly would not want yes or no answers.
"I was leaning over her body from the left-hand side, trying to get the drugs."
That's an answer to a question.
"And you put pressure on her neck?"
"Answer: I put pressure on her neck and I didn't realize what happened until I seen that she was dead."
And then, which is a leading question, "When you saw that she was dead it was from the striking because she had fallen or the pressure that, in fact, you were putting on her neck, but the fact is that she expired at some point, is that correct?
"Answer: That's true."
Then he goes on to indicate that everything about it is true concerning his role in the case.
Then Mr. Calo supplemented the record concerning the report by Dr. Merrill Liederman, who's the assistant medical examiner in New York in this case.
So, certainly there's a factual basis under the terms of the plea.
In fact, there's not even alleged here today that the, that there's innocence on the part of Mr. Limite, of the defendant.
Therefore, there's also no indication that perhaps it's an illegal sentence.
It's within the range of sentences permitted.
This falls within the permissible range of sentences for such offenses that Judge Kuechenmeister sentenced on.
The Court sees no reason for the evidential hearing in this matter.
There's nothing that has to be done by it.
Any transcripts, and records show clearly Mr. Limite knowingly and voluntarily and freely entered into a plea agreement, and which he received a sentence.
The net terms of the sentence of thirty years, with fourteen and a half year period of parole ineligibility, to run consecutive to the Morris County sentence.
I don't think anybody who reviews the record would come to any other conclusion than that.
Therefore, the motion for post conviction relief is denied as being out of time.
Also there's no issue raised in my mind.
The Court did deal with something I'm not required to, just to put an opinion of this Court, having reviewed the matter on the record.
This appeal followed.
On appeal, defendant asserts:
DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD BE GRANTED.
THE DEFENDANT WAS DENIED HIS BASIC CONSTITUTIONAL RIGHT TO EFFECTIVE COUNSEL.
THE DEFENDANT'S PLEA WAS NOT ENTERED INTO KNOWINGLY AND VOLUNTARILY.
THE COURT ERRED IN ACCEPTING DEFENDANT'S GUILTY PLEA BECAUSE COUNSEL FAILED TO ESTABLISH A SATISFACTORY FACTUAL BASIS FOR A KNOWING PLEA.
THE REINDICTMENT OF THE DEFENDANT ON MURDER CHARGES AND THE ADDITION OF THE DRUG CHARGES CONSTITUTED AN ACT OF PROSECUTORIAL MISCONDUCT.
We have carefully reviewed the briefs and the record and we conclude that the appeal is without merit. R. 2:11-3(e)(2).
The record demonstrates that the plea agreement was carefully enunciated, and defendant acknowledged that he understood the terms of the agreement; moreover, defendant carefully described the circumstances of both the manslaughter as well as the conspiracy to distribute drugs. The record is devoid of any basis for the suggestion that defendant, through counsel, had been offered a more favorable plea agreement.*fn1
We likewise perceive of no basis for enlarging the five- year limitation on petitions for post-conviction relief. R. 3:22-12. See State v. Milne, 178 N.J. 486, 492 (2004).
Although defendant attempts to avoid the bar by claiming an "illegal sentence," the sentence was proper.
The judge properly denied the petition, and we affirm substantially for the reasons set forth in Judge Meehan's oral decision of July 13, 2007.