April 6, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Monmouth County, Indictment No. 92-01-0009.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 10, 2010
Before Judges Stern and Sabatino.
Defendant was convicted on August 20, 1993, of two counts of first degree aggravated sexual assault, two counts of second degree sexual assault, three counts of endangering the welfare of a child, two counts of terroristic threats, possession of a weapon for an unlawful purpose and promoting prostitution.
Several counts were dismissed during trial and the defendant was acquitted on some of the charges. On March 8, 1996, we affirmed the convictions but remanded for re-sentencing of the aggregate forty-six year sentence, with twelve years to be served before parole eligibility, as originally imposed. We did so in light of the imposition of five consecutive sentences, three of which had parole ineligibility terms imposed on presumptive sentences. We also ordered the unmerger of two of the endangering convictions.
On remand, the trial judge imposed the same aggregate sentence, and on a second appeal, we vacated the ineligibility term on the promoting prostitution count because age and the solicitation of a sixteen year old to have sex in exchange for drugs were elements of the offense. We also remanded to reconsider the sentence imposed on one of the first degree aggravated sexual assaults because the judge imposed an ineligibility term which was not mandatory as this offense occurred before the prior conviction for sexual assault.
On February 27, 1998, the sentence was imposed for a third time.*fn1 The judge again imposed a fifteen-year sentence with five years before parole eligibility for the two aggravated sexual assaults, this time as a discretionary matter with respect to count one. However, the judge imposed no period of parole ineligibility on the other four year consecutive sentences.
Thus, the new sentence aggregated forty-six years in the custody of the Commissioner of Corrections with only ten years of parole ineligibility. On April 13, 1999, we affirmed that judgment. Defendant's petition for certification was denied on November 24, 1999. State v. G.C., 162 N.J. 489 (1999).
The State's brief explains what happened thereafter:
A couple [of] months later, on or about April 24, 2000, defendant filed in the Law Division a pro se motion for post-conviction relief, alleging ineffective assistance of counsel. The motion was deemed non-conforming because it lacked a proposed order and defendant did not sign certain documents among his paperwork. The court dismissed the motion without prejudice on May 31, 2000.
On July 10, 2006, defendant filed another pro se motion for post-conviction relief. Counsel was assigned and, on January 24, 2008, defendant filed an amended petition, a supplemental brief, supporting certifications, and a report by Dr. Daniel Greenfield which concluded defendant had "cognitive limitations" that support a finding of "excusable neglect" for his untimely post-conviction relief filing.
On February 6, 2008, the State filed a cross-motion to dismiss defendant's petition on the ground it was procedurally out-of-time. A hearing was held [on] March 14, 2008, at the conclusion of which the . . . [judge] granted the State's motion, and signed an order to this effect.
[record citations omitted.]
The State further developed the details concerning the first petition:
Defendant's first attempt to petition for post-conviction relief is evidenced by a pro se application, handwritten on prison forms, dated December 28, 1998. In this petition, defendant alleged "ineffective assistance of counsel" as the basis for relief.
Defendant[,] subsequently[,] supplemented this paperwork with a typewritten (but unsigned) notice of motion, supporting certification and proof of service, all dated January 31, 2000. In the January 2000 paperwork, defendant alleged he was deprived of the effective assistance of trial and appellate counsel. Defendant also explained that he filed his initial pro se petition on or about December 28, 1998[,] in the Appellate Division. The appellate court returned the paperwork to defendant's attorney, who sent it back to defendant. Defendant then asked the Public Defender's Office to file his post-conviction relief petition but it declined, because defendant's direct appeal was ongoing and so the trial court lacked jurisdiction to entertain a PCR application. When defendant learned the Public Defender had not filed his petition, he filed it himself, according to court records, on April 24, 2000. As noted in the above recitation of procedural history, defendant's motion was deemed non-conforming because it lacked a proposed order and signatures of defendant. The court dismissed the motion without prejudice on May 31, 2000.
[record citations omitted.]
After the defendant filed the present PCR petition, dated May 26, 2006,*fn2 counsel was assigned and an amended petition was filed in January 2008. This petition was accompanied by a certification of defendant who claimed the victims lived with him while their mother was terminally ill and that Joan Miller, another caretaker, would have testified they "were very dishonest children." In an accompanying document, Ms. Miller certified about the various wrongdoings by the victims while they were living with her. The certification stated:
3. When [K] and [P,] [sisters,] were living at my house in 1989, [P] got some kind of check from her mother (I do not know if it was for Social Security disability or what), and she gave it to me to cash after signing it. I cashed it at my bank and kept the money because I was paying for the food and living expenses for these two (2) children without receiving anything from their mother, [S]. [P] was so angry that she called the police-when they came to the house and told her that she could not press charges for this, I gave her half of the money from the check.
4. [P] was a very dishonest person and spent time with others like her. For example, one day she came to the house with a shopping cart full of food from the A&P, which she and her boyfriend admitted stealing. I told her to return it, but I do not know if they did. [K] also tried to get money from an older man named Joe D'Agostino, who was set on fire, and her boyfriend ended up going to prison for what happened. . . . [Trial counsel] never investigated this. In another one of her very strange and dishonest moves, [P] pretended to be missing or dead, and her picture showed up on milk cartons; she bragged about this to me when I was living in Aberdeen as if it were some kind of funny joke.
5. In another incident, [defendant] and his cousin . . . and I had to go to Newark or New York to pick up [K], [P] and their brother, [B], because they had been arrested (I do not remember the charges). We brought them all back to my house. [P] and [B] especially resented [defendant] because he wanted them to stay out of trouble and keep away from people doing drugs.
6. I never saw [defendant] sexually assault anyone or do anything to harm these children in any way. [Defendant] tried to give them some kind of stable life as best he could, but [P] especially was dishonest, hung out with bad people and could not be controlled.
7. I gave [trial counsel] a great deal of information about [P] in particular. Most of the time, he just would not listen to me. I was more than willing to testify about the things I have set forth in this Certification, and I am still willing to be a witness for [defendant].*fn3
The petition was also accompanied by a report of Dr. Daniel Greenfield, a psychiatrist, who certified that:
On the basis of my interview/examination of Mr. [C] and the other sources of information for this evaluation, and with respect specifically to the issue of whether or not from a clinical/psychiatric/ neuropsychiatric/addiction medicine perspective, Mr. [C]'s ongoing and chronic clinical condition provides a basis for "excusable neglect" in his not having filed an application for "Post-Conviction Relief" ("PCR") in the above-referenced matter, it is my psychiatric/ neuropsychiatric/addiction medicine opinion-- held with a degree of reasonable medical probability--that it does. Specifically, because of Mr. [C] cognitive limitations, he was not able to grasp important and subtle concepts concerning his filing a PCR application during the required time frame, and he failed to do so because of that inability. This point, and others concerning forensic psychiatric/ neuropsychiatric/addiction medicine issues in this evaluation, is discussed in further detail in my evaluation report in this matter, appended to this report as Exhibit "B."
Doctor Greenfield explained why defendant's mental condition including "borderline intellectual functioning/mild mental retardation" and schizophrenia impacted adversely on his ability to file a timely petition "during the five-year period following his conviction" and during the "required time frame" and thus constituted "excusable neglect."*fn4 According to defendant, the judge improperly dismissed the petition as time barred. On the other hand, the State contends that the fact that defendant is "mildly retarded" and lacks the "sophistication" to understand the rules "does not satisfy the excusable neglect standard." Moreover, according to the State, [o]ur Supreme Court has suggested that a defendant's mental or psychological infirmity and/or treatment may support a excusable neglect finding [only] where it is factually substantiated that the defendant's mental state and psychiatric condition actually "prevented [the defendant] from pursuing his rights and remedies."
[quoting State v. D.D.M., 140 N.J. 83, 100-102 (1995).]
The State also notes that because of the time bar, the judge did not rule on the merits. However, the judge did note that if Ms. Miller (a friend of the victims' mother) had been called at trial, her hostile relationship with defendant (which apparently resulted in the issuance of a restraining order she obtained against defendant) might have been developed to attack her credibility or led to testimony prejudicial to defendant about the restraining order, and that under the law existing at the time, the character evidence she would have developed against the victims would have been inadmissible. After concluding that defendant did not demonstrate "excusable neglect," the judge added:
Secondly, I find that on the broader issue as to whether or not it would be in the interest of justice to grant this, I find that that has not been proven, either.
However, defendant asserts the right to an evidentiary hearing regarding "counsel's reasons for his apparent lack of investigation of Joan Miller's accusations against the alleged victims" and why counsel did not call her as a witness during trial.
We remand for further proceedings because relaxation of the five-year time bar is warranted under these extraordinary and unique facts. See R. 3:22-12(a). The parties assume that the petition was filed thirteen years after the entry of judgment. Defendant "acknowledges that his date of conviction was August 20, 1993," and the State contends that "[t]he trial court properly found as a fact that defendant's petition [filed on July 10, 2006,] was almost eight years out of time." According to the State, "[c]onsistent with R. 3:22-12(a), defendant's time for challenging [the judgment which was entered on August 23, 1993,] by post-conviction relief petition expired on August 22, 1998."
The premise may be accurate. See State v. Dugan, 289 N.J. Super. 15 (App. Div.), certif. denied, 145 N.J. 373 (1996). While dated August 20, 1993, so as not to deprive defendant of institutional credits as of that day, defendant was resentenced on the second remand on February 13, 1998. The judgment which was ultimately sustained was entered that day. It constituted the judgment of conviction which defendant now attacks. See R. 3:21-5(b). We affirmed that judgment, and that judgment only, on April 13, 1999, and the petition of January 31, 2000, was filed within five years of the 1998 judgment. Moreover, there was an earlier petition dated December 28, 1998, which defendant endeavored to file even before the proceedings on direct appeal concluded on April 13, 1999. However, the Public Defender declined to represent him thereon because of the pending appeal.
If that matter were properly processed, counsel would have been assigned on the first PCR, as required by the rule, and he or she could have resolved the technical errors in the motion papers to achieve a filing of the petition within five years of the 1998 judgment. See R. 3:22-6(a). See, e.g., State v. Picciotti, 231 N.J. Super. 111 (App. Div. 1989).*fn5
Under the totality of these circumstances in which defendant sought PCR even before the direct appellate process was complete, and given Dr. Greenfield's report, the petition should be considered on the merits, and we remand for further proceedings in the Law Division. Ms. Miller has certified that she would have testified that defendant and the victims lived with her and that they were dishonest and disliked defendant for criticizing them and their lifestyle and for demanding that they obey the law. After hearing from the parties, the judge must reconsider letting defendant call Ms. Miller on the PCR, the admissibility of her proffered attack on the credibility of the victims, if she testified at trial, and its impact under the Strickland test. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987). Defendant should also be permitted to request the opportunity to take the testimony of trial counsel. While the law at the time of trial suggested counsel may well have decided not to call Ms. Miller as a matter of "trial strategy," his decisions must be evaluated in light of the claims that character evidence, and an attack of the victims' credibility, was admissible while the relationship between Ms. Miller and defendant could have been excluded.
Reversed and remanded for further proceedings. We do not retain jurisdiction.