On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-08-3380.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and J. N. Harris.
Defendant Timothy Adams appeals the Law Division's denial of his application for post-conviction relief (PCR). We affirm.
After pleading guilty, defendant was convicted of a single count of making terroristic threats, a crime of the third degree. N.J.S.A. 2C:12-3(a). A plea arrangement was negotiated whereby the remaining counts in the indictment would be dismissed; defendant would receive a maximum sentence of three years incarceration; and the State would neither request an extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3(a), nor seek a minimum parole disqualifier of one-third of the base term pursuant to the Graves Act, N.J.S.A. 2C:43-6(c).
On January 22, 2002, at the plea allocution hearing, defendant swore under oath that two and one-half years earlier, on August 6, 1999, upon entering a convenience store in Newark, he encountered several other individuals, and threatened--with the intention of putting another person in fear of his life--to commit a crime of violence upon one of them. The Law Division judge engaged in a comprehensive and detailed dialogue with defendant at the hearing, ultimately satisfied with a firm conviction that defendant had entered a knowing, voluntary, and intelligent guilty plea.
Several weeks later at the time of sentencing, defendant's attorney advised the sentencing judge that defendant had supposedly developed evidence that could possibly prove that the victim of his crime was lying. Accordingly, defense counsel requested permission to withdraw his client's plea of guilty. The sentencing court, understandably without the foresight to predict the seven-years later decision in State v. Slater, 198 N.J. 145 (2009), determined that defendant's claim of innocence was a "mere assertion" and his plea was "voluntarily given." Thus, the court rejected the defendant's belated claim of a supposed new insight into the discovery materials and grand jury proceedings, and proceeded to sentence defendant to the previously agreed-upon term of three years incarceration.
Defendant appealed, limiting the issues to (1) the unsuccessful motion to withdraw his guilty plea and (2) the excessiveness of the sentence imposed. R. 2:9-11.*fn1 We affirmed the Law Division, State v. Adams, No. A-1014-03 (App. Div. Mar. 31, 2004), and the Supreme Court denied certification. State v. Adams, 181 N.J. 286 (2004).
On March 26, 2008--five years and eleven months after the entry of the judgment of conviction--defendant finally filed his PCR application. The case was assigned to and considered by the same judge who had previously sentenced defendant. In this PCR application, defendant reargued the same grievance concerning his motion to withdraw the guilty plea that he had advanced twice before: first at sentencing, and thereafter in his direct appeal. The Law Division denied the PCR application in an order dated October 23, 2008, finding that "it's simply a change of heart and nothing more." This appealed followed.
Before this court, defendant's counsel reprises the same argument concerning the request to withdraw the guilty plea. However, in a pro se supplemental brief filed on October 20, 2009--seven and one-half years post-conviction--defendant makes the following points for the first time:
POINT 1: POLICE MISCONDUCT TAINTED DEFENDANT'S CASE; ILLEGAL SEARCH AND SEIZURE, MIRANDA ISSUES, DEFENDANT WAS NOT QUESTIONED NOR STATEMENT TAKEN, ETC.
POINT 2: PRE-INDICTMENT DELAY OF [TWO] YEARS VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS.
POINT 3: INSUFFICIENT EVIDENCE PRESENTED TO THE GRAND JURY AND POOR DISCRETION BY THE PROSECUTION IN ...