July 29, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMIE FARTHING, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 95-07-0889.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 21, 2009
Before Judges Wefing and LeWinn.
Defendant Jamie Farthing appeals from two orders of the trial court. In Docket No. A-3198-07, defendant appeals from the January 10, 2008 order denying her motion for a new trial. In Docket No. A-3481-07, defendant appeals from the February 25, 2008 order denying her petition for post-conviction relief (PCR). For the reasons that follow, we affirm both orders.
Tried to a jury in 1996, defendant was convicted of murder, kidnapping, felony murder and related offenses. Her original sentence was a term of life plus sixty years with a forty-year period of parole ineligibility. In a prior appeal, we set aside her murder conviction and affirmed on all other issues. State v. Farthing, 331 N.J. Super. 58, 85-86 (App. Div. 2000). Thereafter, the Supreme Court denied defendant's petition for certification. 165 N.J. 530 (2000).
The State determined not to retry defendant on the murder charge, and she was thereupon resentenced to a term of life with a forty-year parole ineligibility period. She appealed this sentence, and we affirmed by order entered on May 9, 2002; the Supreme Court thereafter denied her petition for certification. 174 N.J. 365 (2002).
On November 13, 2002, defendant filed a pro se PCR petition, which assigned counsel supplemented with an amended petition and brief on December 22, 2004, and a supplemental PCR petition on February 4, 2005. Defendant raised the following claims: ineffective assistance of trial counsel; Miranda violations*fn1; the verdict was against the weight of the evidence; denial of her right to an impartial jury; and "substantial denial" of her rights under the United States and New Jersey Constitutions.
On August 8, 2005, the trial judge entered an order denying defendant's PCR petition. Defendant appealed, and we affirmed in an unreported decision. State v. Farthing, No. A-0104-05 (App. Div. February 14, 2007); the Supreme Court denied defendant's petition for certification. 190 N.J. 394 (2007).
On January 3, 2008, defendant filed a second PCR petition and a motion for a new trial. By order entered January 10, 2008, the trial judge denied defendant's new trial motion on the grounds that it was not timely filed pursuant to Rule 3:20-2. On February 25, 2008, the trial judge issued an order denying defendant's second PCR petition.
We turn first to defendant's appeal from the denial of her motion for a new trial, in which she argues:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR [A] NEW TRIAL AND SHOULD GRAN[T] DEFENDANT'S MOTION FOR [A] NEW TRIAL, OR AT [A] MINIMUM, CONDUCT A HEARING WHERE CIRCUMSTANCES SURROUNDING [THE] STATE'S FAILURE TO PRODUCE DISCOVERY ESTABLISHES THAT THE DEFENDANT WAS UNFAIRLY CONVICTED IN VIOLATION OF HER FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL, DUE PROCESS AND TO A FAIR TRIAL
The jury rendered its verdict on November 26, 1996. Defendant filed her motion for a new trial more than eleven years later, on January 3, 2008.
R. 3:20-2 provides:
A motion for a new trial based on the ground of newly-discovered evidence may be made at anytime . . . . A motion for a new trial based on a claim that the defendant did not waive his or her appearance for trial shall be made prior to sentencing. A motion for a new trial based on any other ground shall be made within 10 days after the verdict or finding of guilty, or within such further time as the court fixes during the 10-day period.
Defendant's new trial motion was not "based on the ground of newly-discovered evidence . . . ." Rather, she asserted the ineffective assistance of her PCR counsel for failing to "argue all claims regarding prosecutorial failure to comply with discovery obligations . . . ." Defendant argued that "[a] new trial would allow the judge to determine whether PCR counsel violated Rule 3:22-6(d) by failing to advance all of the issues raised by defendant." Defendant further argued that she "still remains concerned about the unanswered question of where is the discovery and was the discovery ever used in the original trial[.]" There is nothing in the record, however, to support defendant's contention that the State failed to provide complete discovery; nor does the record reflect that defendant's trial counsel received less than full discovery.
Nowhere has defendant addressed her failure to bring her new trial motion within the ten-day time limit mandated by Rule 3:20-2. On this record, we are satisfied that the trial judge properly denied her motion on this basis.
Turning to defendant's appeal from the denial of her second PCR petition, we consider the following issues presented:
APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AND BECAUSE SHE WAS PREJUDICED THEREBY, THE COURT SHOULD GRANT HER PETITION F[OR] POST-CONVICTION RELIEF. AND BECAUSE THE PETITIONER PRESENTED ENOUGH PROOF FOR A PRIMA FACIE CASE SHOWING THAT SHE WAS DEPRIVED [OF] EFFECTIVE ASSISTANCE OF COUNSEL, THE COURT SHOULD GRANT HER AN EVIDENTIARY HEARING ON THIS ISSUE[;] IT IS A VIOLATION OF APPELL[A]NT'S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
a. Ineffective assistance of counsel because counsel did not object [that] . . . the jury [was] not properly instructed that an accomplice may intend to commit a lower-degree offense than the main actor(s), and because there was no evidence that the offense, nor for a homicide to result, her conviction of first-degree felony murder must be amended to any lesser-included offense.
b. Ineffective assistance of counsel for failure to object to the disparity between the sentences imposed on a 17-year old co-defendant as compared to [the] age of the defendant who had just turned 18-years of age, renders defendant's sentence manifestly unjust and unduly punitive, thus requiring reversal and a remand resentencing.
FAILURE OF POST-CONVICTION RELIEF COUNSEL TO ADVANCE ALL OF THE ISSUES RAISED BY DEFENDANT. R. 3:22-6(d)
a. Counsel failed to raise and argue the defendant's diminished capacity defense in [c]onjunction with [her] voluntary intoxication defense for presentation to the jury.
[THE] TRIAL COURT ABUSED ITS DISCRETION DURING THE FIRST POST-CONVICTION RELIEF HEARING; DEFENDANT'S CLAIMS SHOULD NOT BE BARRED ON PROCEDURAL GROUNDS
THE CUMULATIVE ERRORS OF COUNSEL CAUSED PREJUDICE TO THE DEFENDANT DENYING HER THE EFFECTIVE ASSISTANCE OF COUNSEL, AND A ME[A]NINGFUL AND VIABLE DEFENSE DURING HER FIRST POST-CONVICTION RELIEF HEARING
Having reviewed these contentions in light of the extensive record, we find them to be without merit. We affirm substantially for the reasons stated by Judge Donald R. Venezia in his order of February 25, 2008, and add only the following comments.
Defendant first contends that the trial judge failed to give the jury a proper charge on accomplice liability, pursuant to State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993), and that trial counsel was ineffective for failing to object to this allegedly defective charge. Review of the trial record, however, reveals that the trial judge instructed the jury as follows:
Now the law recognizes that two or more persons may participate in the commission of an offense but each may participate therein with a different state of mind. That's the issue and that's one of the main issues in this case. . . . The liability or responsibility of each participant for any ensuing offense is dependent on her own state of mind and not anyone else's. Guided by these legal principles, and if you have found the defendant not guilty of a specific crime charged you should then consider whether the defendant is guilty or not guilty . . . as an accomplice . . . on a lesser included offense or a lesser charge.
As Judge Venezia found, the trial judge utilized the Model Jury Charge on accomplice liability and tailored the charge to the facts adduced at trial. See Model Jury Charge (Criminal), "Liability for Another's Conduct, Accomplice" (1995). Therefore, the PCR judge found "no merit whatsoever to defendant's claim that trial counsel was ineffective for not objecting to the accomplice liability charge." The PCR judge also noted that "any challenge to the charge could have been raised on direct appeal, and on the first post-conviction relief petition, and therefore, the claim underlying this alleged ineffective assistance by trial counsel is procedurally barred." We concur with this ruling.
Defendant next contends that trial counsel was ineffective for failing to object to the disparity between her sentence and that of her co-defendant, Ben Rosario. As noted, following her first appeal, defendant was resentenced to an aggregate term of life imprisonment with a forty-year period of parole ineligibility.
Rosario had originally been sentenced to an aggregate term of life imprisonment with a sixty-year period of parole ineligibility. State v. Rosario, 391 N.J. Super. 1, 3 (App. Div. 2007). Prior to trial, however, Rosario had engaged in extensive plea negotiations with the State, and had received a recommendation of a sentence ranging between ten and thirty years. Id. at 5. The State subsequently refused to honor the agreement; defendant filed a motion to enforce the plea agreement, which was denied. Id. at 7, 8. Defendant thereupon stood trial and received the sentence noted. Id. at 9. We reversed the denial of Rosario's motion to enforce the plea agreement and remanded for further proceedings. Ibid. According to defendant's PCR allegations, Rosario ultimately received a sentence of fifteen years.
Defendant received her modified sentence on February 2, 2001. We therefore concur with Judge Venezia's finding that [d]efendant's trial counsel, PCR counsel and PCR appellate counsel could not have raised a disparity argument regarding defendant's sentence and that of co-defendant . . . Rosario. This is because the Appellate Division opinion that gave . . . Rosario access to the New Jersey plea offer that called for a sentence of up to 30 years was not decided until 2007.
The judge noted additionally that defendant did not claim that her sentence was illegal, and concluded "that an allegation of disparate sentences does not amount to an illegal sentence claim" within the intendment of Rule 3:22-12.
Defendant's remaining issues are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). We are satisfied that Judge Venezia properly denied relief on each of these claims for the reasons stated in his order.
Both orders are affirmed.