October 22, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JEFFREY K. GILBERT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 92-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 7, 2009
Before Judges Axelrad and Espinosa.
Appellant Jeffrey K. Gilbert appeals from the denial of his petition for post-conviction relief (PCR) from a conviction for passing a bad check in Burlington Township. We affirm.
In August 1990, Burlington Township Municipal Court Complaint No. W024358 was filed, charging appellant with a third-degree offense. The complaint alleged that on August 31, 1990, appellant did "attempt to commit the crime of theft by deception by attempting to withdraw $800.00 in cash and $1500.00 in a cashiers check on a[n] account which he knew to lack sufficient funds in violation of [N.J.S.A. 2C:5-1]." The probable cause for this charge was described as follows:
On August 28, 1990 defendant opened an account at the Burlington County Bank by depositing a check of $2340.81 drawn on [an account at] the National Community Bank . . . he knew the account to be closed. On August 31, 1990 defendant attempted to withdraw a total of $2300 from the account which he opened at the bank. Defendant opened the . . . account at the Burlington County Bank (Delanco office) and tried to withdraw the money at the Burlington office.
The charge was referred to the Burlington County Prosecutor's Office which, upon review, elected to downgrade the offense to an amended charge, N.J.S.A. 2C:21-5. This statute provides that "[a] person who passes a check . . . for the payment of money, knowing that it will not be honored by the drawee, commits an offense . . . ." Ibid. Knowledge that the check will not be paid is presumed if payment is refused due to a closed account. Ibid.
On April 9, 1991, appellant appeared in the Burlington Township Municipal Court (the "municipal court") after he was arrested pursuant to a bench warrant issued for failure to pay fines imposed for a January 1991 conviction for driving under the influence. The municipal court records reflect that appellant pled guilty on that date to the downgraded charge of passing a bad check and was sentenced to forty-five days in the Burlington County Jail and a $30 Violent Crimes Compensation Board penalty. The court suspended other fines and costs. Appellant did not challenge this conviction in any way until more than twelve years later.
On July 8, 2003, appellant challenged his 1991 conviction before municipal court judge Dennis McInerney, the judge who had accepted the guilty plea and sentenced him. He had not yet filed a PCR petition but had inquired whether the court would entertain such a petition. The court advised appellant that the application submitted was denied on the grounds that, pursuant to Rule 7:10-2(b)(2), such a petition had to be made within five years of the conviction.
Thereafter, appellant contacted the municipal court for records in conjunction with his attempt to file a PCR petition. By letter dated September 18, 2003, the Court Administrator transmitted the disposition for the conviction and advised:
ACCORDING TO THE NJ RULE R.1-32.2 ALL OF THE ORIGINAL RECORDS AND TAPES HAVE BEEN DESTROYED, WE ONLY HAVE DOCKET BOOKS THAT GIVE THE DISPOSITION OF YOUR CASES. WE CANNOT GIVE YOU ANY OTHER INFORMATION ONLY THE DISPOSITION THAT IS ENCLOSED WITH THIS LETTER.
Therefore, when appellant filed a PCR petition in May 2004, he was aware that the municipal court had no original records of the court proceedings he was now challenging. Appellant's verified petition contains a single sentence to support the request for relief, "I do not recall being represented by counsel prior to or during the proceedings relating to warrant no. W024358 on or before April 9, 1991." In his memorandum of law, appellant contended that he did not in fact plead guilty to either the original charge of criminal attempt or the downgraded charge of bad checks on April 9, 1991. Furthermore, Defendant contends that he is actually innocent of the crime of passing a bad check in Burlington Township; and that because he was convicted of the identical offense in Delanco Township on May 1, 1991, he has been unjustly convicted twice for the same offense.
Appellant's petition is silent as to the reason for his thirteen-year delay. Only a very limited explanation is provided in his accompanying affidavit. Paragraph 21 states,
I only recently learned that I have been convicted on the aforesaid criminal complaints in 2003, when I obtained and had an opportunity to review my criminal history. Prior to that time, I had been ignorant of these judgments of conviction.
In his affidavit, appellant acknowledges that he appeared in municipal court on the date of his guilty plea and sentence as reflected in the court's records. However, he contends that "[t]o the best of [his] knowledge, information, belief and recollection," he never appeared in court on the bad check charge, did not waive his rights to trial, indictment or counsel, or enter a guilty plea.
After hearing appellant's argument, Judge McInerney denied the petition.*fn1 The judge noted the difficulties posed by the tardiness of the petition:
The problem with this case is that it's old. It's 13 years old. Many of the original court documents, the original complaints and so forth are no longer in existence. The court only has to retain that for seven years and we destroy it. What is left is entry in court records or entry in court dockets, not the actual physical documents.
Judge McInerney recalled his "distinct recollection of the bad check charge" as follows:
I sentenced him to 45 days in jail on the bad check charge which is very unusual sentence for me on a bad check charge to sentence someone to jail for that period of time. And I remember it because when I sentenced him to 45 days in jail it was because he already had a substantial amount of time in jail and I gave him credit for time served. He remained in jail to answer the charge in Delanco. He pled guilty to the bad check charge here.
The judge also stated that he was satisfied that when appellant appeared in court in April 1991, he was advised of his right to counsel, that he chose to proceed without counsel and that there was a factual basis for the plea. In denying the petition, the judge observed that the petition had not been made within the five-year period for making such applications and that there was "nothing preventing Mr. Gilbert from making this application prior to this time."
Appellant appealed this denial to the Law Division, which found that he had demonstrated excusable neglect and remanded the petition to the municipal court for an evidentiary hearing. At the hearing, Judge McInerney repeated and expanded upon his account of appellant's guilty plea. Citing State v. Mitchell, 126 N.J. 565 (1992), the judge noted the appellant's burden and compared appellant's lack of recollection of events with his own "specific and clear" recollection. Judge McInerney observed that the application followed appellant's conviction on federal bank fraud charges and opined that appellant was motivated by a desire to avoid an extended prison term.*fn2 Incorporating his prior decision by reference, the judge also stated:
[L]et me just make it clear again for the record . . . that I have a specific and clear recollection of what happened on that date. As I've already said, the defendant appeared. He was advised of his right to counsel. He was advised of the penalties, and he pled guilty to the downgraded charge.
He never raised an objection, nor did he ever say that he was not guilty of the charge, based on my recollection. And for all of those reasons, even if the five-year time bar does not apply, . . . I find that the defendant has not carried his burden to convince the court by a preponderance of the evidence that the . . . plea that he entered was illegal in any way.
Appellant filed an appeal from the denial of his petition. The Law Division conducted a de novo hearing on the municipal remand and denied appellant's PCR petition on the merits. This appeal followed, in which appellant raises the following issues:
THE MUNICIPAL COURT LACKED SUBJECT MATTER JURISDICTION, AS APPELLANT WAS IMPROPERLY CONVICTED OF A THIRD-DEGREE INDICTABLE CRIME IN THE MUNICIPAL COURT TO WHICH APPELLANT DID NOT WAIVE HIS RIGHTS TO INDICTMENT AND A JURY TRIAL.
THE MUNICIPAL COURT LACKED TERRITORIAL JURISDICTION, AS APPELLANT WAS IMPROPERLY CONVICTED OF AN OFFENSE WHICH OCCURRED IN ANOTHER MUNICIPALITY.
APPELLANT WAS DENIED FUNDAMENTAL FAIRNESS AND SUFFERED MANIFEST INJUSTICE IN THE COURTS BELOW WHEN HIS CONVICTION, FOR AN OFFENSE OF WHICH HE IS ACTUALLY INNOCENT; AND FOR WHICH UNDERLYING CONDUCT HE WAS CONVICTED IN ANOTHER JURISDICTION, WAS AFFIRMED AND POST-CONVICTION RELIEF WAS DENIED.
APPELLANT WAS DENIED HIS RIGHT TO COUNSEL UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION OF 1947, AS APPELLANT'S WAIVER OF COUNSEL BEFORE THE MUNICIPAL COURT WAS INVALID AND APPELLANT WAS DENIED HIS RIGHT TO COUNSEL AS AN INDIGENT, IN VIOLATION OF GIDEON V. WAINWRIGHT AND RODRIGUEZ V. ROSENBLATT (NOT RAISED BELOW).
ASSUMING ARGUENDO THAT APPELLANT DID PLEAD GUILTY, APPELLANT'S GUILTY PLEA IS INVALID EITHER WITH OR WITHOUT A FACTUAL BASIS.
We need not reach the merits of any of these arguments because we are satisfied that 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 failure to file his petition for thirteen years was due to excusable neglect. We are not persuaded by this argument.
"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." Mitchell, supra, 126 N.J. at 576. The factors to be considered in determining whether the appellant has asserted a sufficient basis for relaxing the Rule's time restraints are "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." State v. Afanador, 151 N.J. 41, 52 (1997); Norman, supra, 405 N.J. Super. at 159. "Absent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay." State v. Milne, 178 N.J. 486, 491-92 (2004) (quoting Afanador, supra, 151 N.J. at 52).
Appellant's petition was not filed until thirteen years after his guilty plea and sentence. The prejudice to the State if his petition were allowed to proceed is manifest. As noted initially by the municipal court's court administrator and thereafter by the municipal court, all the original records were destroyed pursuant to the seven-year retention policy of the courts. Appellant's sole basis for claiming that his neglect was excusable is a statement that "[t]o the best of [his] knowledge, information, belief and recollection," the plea did not occur or did not occur as the municipal court recalls and the court records reflect. This is not even an unequivocal denial that the guilty plea was entered as the court has stated.
As for the merit of the petitioner's claim that an injustice will result if the petition is not heard, it is significant that appellant has not denied that he engaged in the conduct underlying the offense. His position is merely that the "offense" occurred in Delanco rather than in Burlington Township. However, the undisputed facts regarding appellant's actions in Burlington Township to attempt to convince bank employees to allow him to withdraw funds on a check drawn from a closed account provide an ample basis for jurisdiction in Burlington Township. Appellant's argument that this conviction is defective because he pled guilty to similar charges in Delanco is equally unpersuasive. That plea was entered on May 1, 1991, one month after the guilty plea in Burlington Township and would not provide a basis to retroactively negate the charge and guilty plea in Burlington Township. If there was a legitimate issue regarding the two guilty pleas, it should have been raised at the time of his guilty plea, on direct appeal, or in a PCR petition that was filed within five years.
In short, appellant has failed to allege facts that excuse his delay in filing a petition for post-conviction relief thirteen years after his guilty plea and sentence. Based upon our review of the relevant factors, we conclude that appellant has failed to show excusable neglect that would warrant consideration of his petition eight years after it was barred pursuant to Rule 3:22-12(a).