December 10, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DESHAWN STITH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-08-3556.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 19, 2009
Before Judges Baxter and Alvarez.
Defendant DeShawn Stith appeals from the March 6, 2008 denial of his petition for post-conviction relief (PCR). We affirm.
Defendant entered guilty pleas to two counts of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, and three counts of third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b, on May 26, 2000. Defendant's bail was continued, and as called for by his plea agreement, he testified at the trial of a co-defendant. Defendant thereafter failed to appear, was apprehended months later in North Carolina, and was sentenced on November 9, 2000. Pursuant to the plea agreement, he received two concurrent twenty-five-year terms on the aggravated manslaughter offenses, subject to the eighty-five-percent parole disqualifier called for by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He was also sentenced to concurrent five-year terms on each unlawful possession of a handgun count. Defendant's appeal of his sentence was denied on February 20, 2002, as an excessive sentence oral argument.
Defendant claims that he filed a pro se petition for PCR in November 2005, just within the Rule's five-year time bar. R. 3:22-12(a). In support of this claim, he proffers a copy of the May 17, 2006 letter he wrote to the Office of the Public Defender in which he says that he filed a petition at the end of the prior year within the five-year time bar, and received no response from the court. The only filed PCR petition in the record was stamped "received" on December 19, 2006, over six years after defendant's sentence date.
Defendant pro se submitted a memorandum of law and certification in support of the December 19, 2006 petition. Counsel for defendant subsequently filed a letter brief and amended verified petition on September 21, 2007. In that brief, counsel asserts that the petition was not time-barred because defendant filed in November 2005, despite the absence of any corroborating documentation. Counsel also averred that trial counsel was ineffective due to his failure to consult with defendant prior to sentencing and to argue additional mitigating factors at sentencing. That contention dovetailed with defendant's pro se PCR claim that counsel was ineffective because he was either "precluded from arguing for a lesser term" or failed "to advance any argument in support of a lesser term."
On February 1, 2008, Judge Petrolle denied defendant's application for PCR without evidentiary hearing.*fn1 He noted preliminarily that defendant did not establish that the PCR petition was filed in a timely manner, or any excusable neglect for his failure to file within the prescribed five-year term. Judge Petrolle went on to state, however, that since no prejudice inured to the State from this "second look" at the sentence, he would nonetheless consider the matter on the merits. In doing so, he said that defendant's conduct, if presented to the jury, "might very well have supported a finding of murder . . . . This was the most cold-blooded execution called an aggravated manslaughter that one could imagine." He highlighted that defendant's cooperation with the State, the fact that alcohol was involved, and that the prior night there had been a shooting incident in which the victims were the assailants, was factored into the plea agreement. The plea agreement was very beneficial to defendant, as it called for concurrent rather than consecutive sentences for two homicides. Judge Petrolle also stated that, contrary to defendant's claim, trial counsel at the sentence hearing specifically said that he conferred with his client prior to sentencing. Counsel represented on the record in open court that during his earlier meeting with defendant, he expressed remorse and wanted to apologize to the court for his failure to appear. Judge Petrolle concluded by saying that defendant was fortunate that only the negotiated sentence was imposed despite his failure to appear and that the contentions he was raising lacked merit because they lacked "any common sense."
Defendant appeals, raising essentially the same arguments:
POINT ONE MR. STITH IS ENTITLED TO RELIEF OR A HEARING ON HIS CLAIM THAT HIS TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT TWO MR. STITH'S PETITION FOR POST-CONVICTION RELIEF IS NOT TIME-BARRED BECAUSE HIS FAILURE TO FILE HIS PETITION WITHIN FIVE YEARS OF HIS CONVICTION WAS DUE TO EXCUSABLE NEGLECT, THERE WAS NO PREJUDICE TO THE STATE, AND BECAUSE THE INTERESTS OF JUSTICE WARRANT RELAXATION OF THE TIME BAR.
A. THE TIME BAR SHOULD BE RELAXED BECAUSE DEFENDANT'S DELAY IN FILING HIS PCR PETITION WAS DUE TO EXCUSABLE NEGLECT.
B. THE TIME BAR SHOULD BE RELAXED IN THE INTERESTS OF JUSTICE.
We briefly recite the relevant facts. On April 29, 1998, in Newark, defendant and two co-defendants shot John Denine Anderson*fn2 and Derek Powell in the back at point blank range as they lay on the ground. Anderson and Powell had been walked down an alley by defendant and his cohorts prior to the shooting. When defendant entered his guilty plea, he said he knew the men were unarmed.
Immediately after the bodies were discovered, a trail of blood led the investigating officers to a particular apartment where the three shooters were promptly apprehended. When the men were arrested, three handguns, cocaine and heroin were seized. Eyewitnesses to the shooting who testified during the grand jury proceedings said that the victims and defendant and his two co-defendants were fighting over contested drug turf.
On this appeal, defendant's claim that he filed just within the time bar is entirely uncorroborated, and we reject it. It strains credulity that, despite the purportedly timely filing of defendant's only PCR petition, he would not have followed up until seven months later, and done so merely by complaining to the Office of the Public Defender. In any event, only excusable neglect avoids the time bar; here, there are no assertions of excusable neglect even made. We therefore affirm Judge Petrolle's decision that the PCR motion fails as having been filed more than five years after sentence.
Even if the motion had been timely filed, it entirely lacks merit. The right to counsel means the right to adequate counsel as defined by Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984). A defendant must identify specific acts or omissions establishing unreasonable professional judgment, and must then establish that the specific acts or omissions had a prejudicial effect on the final outcome of the case. State v. Fritz, 105 N.J. 42, 58 (1987). No such showing is made here.
Trial counsel negotiated an extremely favorable plea bargain. Defendant received a concurrent sentence for two deaths accomplished in "the most cold-blooded execution called an aggravated manslaughter that one could imagine." Furthermore, despite failing to appear for sentence and being apprehended out-of-state, defendant's attorney negotiated with the State and convinced the court to proceed with the highly favorable sentence under the earlier plea agreement. Defendant was not indicted for bail-jumping. The court did not reject the plea bargain. Had these things occurred, obviously the potential sentencing consequences to defendant were far more onerous. The manner in which the shootings occurred was such that the court might have rejected the plea; however, trial counsel was able to argue effectively and convincingly to the court that defendant's youth, truthful testimony on behalf of the State, and remorse warranted imposition of the negotiated plea. We are hard-pressed to see how this outcome, under these circumstances, constitutes even a colorable claim of ineffective assistance of counsel.
The argument is also made that trial counsel should have argued for factors in mitigation other than defendant's lack of a prior criminal history, N.J.S.A. 2C:44-1b(7), and cooperation with authorities because he testified against a co-defendant, N.J.S.A. 2C:44-1b(12). Although Judge Petrolle referred to defendant's lack of a prior indictable criminal history, the judge also referred to defendant's prior juvenile history. No PSI was supplied with this record, so we have no other information than the statements made during the sentence hearing. Defendant contends that counsel should have asked the court to find that he "acted under a strong provocation," N.J.S.A. 2C:44-1b(3). Defendant established a factual basis during which he acknowledged he and his cohorts, each of whom had a gun, took two unarmed men down an alley with the intent to kill them. This assertion therefore lacks support in the record. He also contends that "substantial grounds" existed to justify the commission of the offense because he had been drinking that night, N.J.S.A. 2C:44-1b(4). Alcohol use, however, is not a basis for this mitigating factor. State v. Setzer, 268 N.J. Super. 553, 567 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994). Hence, counsel's failure to put forth either theory in support of additional mitigating factors is simply not ineffective assistance of counsel.
In fact, during the sentencing hearing, trial counsel kept his argument focused on the eminently reasonable goal of obtaining the benefit of the negotiated plea for his twenty-one-year-old client, despite defendant's failure to appear. We therefore conclude that there is no merit to defendant's contention that additional mitigating factors should have been argued, or that counsel was ineffective at the sentencing.