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State v. Alston

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 29, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANDREW ALSTON, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 91-05-0276/88-12-1459.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 24, 2010

Before Judges Rodríguez and Chambers.

In these back-to-back appeals, which we consolidate for purposes of this opinion, defendant Andrew Alston appeals from the denial of two second petitions for post-conviction relief involving two separate indictments, Indictment No. 88-12-1459 and Indictment No. 91-05-0276. State v. Alston, No. A-3398-08. He also appeals from the denial of his application for a medical release from prison. State v. Alston, Docket No. A-1664-08. We affirm the denial of the petitions for post-conviction relief, and remand the application for a medical release from prison.

I.

We will first address the appeal from the denial of the two petitions for post-conviction relief. State v. Alston, No. A-3398-08. On appeal, defendant, in his brief filed by counsel, raises the following issues:

POINT I

THE PCR COURT ABUSED ITS DISCRETION IN RULING THAT BOTH OF THE DEFENDANT'S PETITIONS FOR CERTIFICATION WERE PROCEDURALLY BARRED BY THE 5 YEAR TIME BAR OF R. 3:22-12 BECAUSE THE PRIOR FINDING BY THE APPELLATE DIVISION THAT THESE METTERS [sic] WERE "PLAGUED" BY "PROCEDURAL CONFUSION" SATISFIED THE EXCUSABLE NEGLECT EXCEPTION TO THE RULE.

POINT II

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE DEFICIENT PERFORMANCES BY BOTH TRIAL COUNSEL AND THE RESULTING PREJUDICE TO THE DEFENDANT SATISFIED THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT III

THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT IV

DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.

(A)

One of defendant's second petitions for post-conviction relief involves his convictions under Indictment No. 88-12-1459. These charges arose out of a raid conducted pursuant to a search warrant on December 23, 1987, at premises located on Princeton Avenue in Trenton where CDS and related items were seized.

Defendant was convicted by a jury on March 14, 1991, of third degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); second degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (count two); and third degree possession of a controlled dangerous substance with intent to distribute within 1,000 feet of a school zone, N.J.S.A. 2C:35-7 (count four).*fn1 Defendant received a custodial sentence of fourteen years with six and one-half years of parole ineligibility on count two and a concurrent sentence of five years with three years of parole ineligibility on count four. Count one was merged.

On direct appeal, we affirmed the convictions. State v. Alston, No. A-393-91 (App. Div. Jan. 28, 1993) (slip op. at 6). However, in doing so, we expressly declined to rule on defendant's criticism of defense counsel's failure to call two alibi witness, indicating that the issue should be addressed in a post-conviction relief application. Ibid. We, however, remanded the case for resentencing because of the mandatory merger of the school zone offense, count four, under State v. Dillihay, 127 N.J. 42 (1992). Ibid. At resentencing, the trial court merged various offenses and resentenced defendant on count two to a term of fourteen years imprisonment with six and one half years of parole ineligibility.

On August 2, 1994, defendant filed a pro se petition for post-conviction relief raising ineffective assistance of counsel claims, which the trial court denied after holding an evidentiary hearing. We affirmed that decision. State v. Alston, No. A-2329-95 (App. Div. May 8, 1997).

In October 2001, defendant filed a second petition for post-conviction relief, raising a Brady violation, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963), which was denied by the trial judge. Due to procedural confusion in the trial record, we remanded without addressing the merits of the petition. State v. Alston, No. A-3037-02 (App. Div. Apr. 13, 2006) (slip op. at 7). On remand, counsel was assigned to defendant. The trial court denied defendant's application. Defendant now appeals that decision to this court.

On appeal, defendant contends that his trial counsel was ineffective for conducting an inadequate pretrial investigation because counsel failed to interview a witness, Irene Upshur, whom he maintained would provide exculpatory information.

We conclude that the trial court correctly ruled that the petition is time barred under Rule 3:22-12(a), because it was filed more than five years after the judgment of conviction. No exceptional circumstances or excusable neglect are present that would warrant extension of this time period. Pressler, Current N.J. Court Rules, comment 3 on R. 3:22-12 (2010).

Although the trial court did find that defendant's petition was time barred, it, nonetheless, considered the merits of the petition. It noted that the record had no statement from this witness, but rather only an investigator's report of an interview with her which contained both limited exculpatory and inculpatory material. Indeed, this witness had originally been listed as a witness for the State. As a result, the trial court concluded that "it is not clear that it would be ineffective to bypass her as a witness" and that the evidence against defendant was "substantial."

We have considered defendant's arguments in light of the record and applicable law and are satisfied that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm for substantially the reasons set forth in Judge Ostrer's opinion rendered from the bench.

(B)

We now turn to Indictment No. 91-05-0276. This indictment arose out of a series of purchases of CDS by an undercover officer from defendant and others at Cleveland Avenue in Trenton in 1989 and 1990. On April 22, 1992, defendant was convicted by a jury of seventeen drug related charges. At sentencing, the trial judge merged various counts and sentenced defendant on the following counts: first degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1), (count three); second degree employing a juvenile in a drug distribution scheme, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-6, (count five); second degree distribution of CDS, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2), (count seven); and third degree distribution of CDS, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3), (count twelve). The trial court sentenced defendant to twenty years with ten years of parole ineligibility on count three and provided that this sentence would run consecutively to defendant's sentence on Indictment No. 88-12-1459 discussed above. The trial court also sentenced defendant to a consecutive sentence of ten years with five years of parole ineligibility on count seven. The sentences on the remaining counts were concurrent. In light of the lengthy sentence, the trial court denied the State's application for an extended term.

We affirmed the conviction and sentence, although we remanded for a correction in the judgment of conviction to properly reflect the merging of counts in accordance with State v. Dillihay, supra, 127 N.J. 42. State v. Alston, No. A-5912-91 (App. Div. Aug. 17, 1994) (slip op. at 6, 7). While defendant raised an ineffectiveness of counsel claim in his direct appeal, we declined to address whether he had met the standard for a petition for post-conviction relief. Id. at 7. The Supreme Court denied certification on October 19, 1994. State v. Alston, 138 N.J. 271 (1994).

Defendant brought his first post-conviction relief petition pro se on May 14, 1997. It was denied by the trial court, and we affirmed that decision. State v. Alston, No. A-1980-98 (App. Div. July 5, 2000). The Supreme Court denied certification on October 31, 2000. State v. Alston, 165 N.J. 608 (2000).

In April 2002, defendant filed pro se his second petition for post-conviction relief. This petition was decided at the trial level at the same time as the petition on Indictment No. 88-12-1459 discussed above. The trial judge denied both petitions. On appeal, due to the confusion in the record between the two petitions at the trial level, we remanded the case to the trial court for a rehearing. State v. Alston, No. A-3037-02 (App. Div. Apr. 13, 2006). On remand, counsel was appointed for defendant. The trial court denied the petition, and defendant now appeals to this court.

In his second petition for post-conviction relief on the charges under Indictment No. 91-05-0276, defendant contended that his trial counsel failed to investigate and produce five witnesses who would have provided exculpatory information. He included with his petition, certifications from two co-defendants. One was from the juvenile, who stated that defendant was not involved in the CDS activity. The other witness, a co-defendant, stated that he was not involved with CDS activity with defendant but he did say that he saw CDS being delivered to defendant and that he heard defendant argue over the price of cocaine with another individual. Defendant stated in his certification that he understood his attorney would call these individuals as witnesses, but the attorney did not do so.

The trial court properly denied the petition as time barred under Rule 3:22-12(a), in that it was filed more than five years after the judgment of conviction. We recognize that this testimony relates to material matters in the case, particularly that of the juvenile since defendant was convicted of employing a juvenile in a scheme to distribute CDS. However, the potential availability and usefulness of these witnesses, by his own admission, was known to defendant at the time of his trial. Thus, this issue could have been raised in defendant's first post-conviction relief application. We find no exceptional circumstances or excusable neglect present that would warrant extension of this time period. Pressler, supra, comment 3 on R. 3:22-12. On the merits, the trial court noted the strong evidence against defendant and the potential credibility problem of calling a juvenile who was a drug dealer.

We have considered defendant's arguments in light of the record and applicable law and are satisfied that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm for substantially the reasons set forth in Judge Ostrer's opinion rendered from the bench.

In sum, we affirm the denials of both second petitions for post-conviction relief.

II.

We now address defendant's second appeal, State v. Alston, No. A-1664-08. Defendant appeals from the trial court order of October 23, 2008, denying without prejudice his motion for resentencing pursuant to Rule 3:21-10(b)(2) due to his medical condition. The Rule allows the court to amend "a custodial sentence to permit the release of a defendant because of illness or infirmity." Ibid.

In July 2008, defendant was advised that he was likely in his last six months of life due to cancer. As a result, he applied for medical parole under N.J.A.C. 10A:71-3.53, and he filed a pro se motion for a change of sentence under Rule 3:21-10(b)(2). The trial court appointed the Public Defender to represent defendant on the motion.

In a written decision dated October 23, 2008, the trial court denied the Rule 3:21-10(b)(2) motion without prejudice, noting that defendant had failed to show that he lacked certain essential medical services in prison. However, recognizing that it did not have all of the facts, the trial court denied the application without prejudice stating that "the Public Defender did not have ample opportunity to conduct an investigation, to obtain an independent medical examination or certifications, to establish the nature of the defendant's condition, or to present evidence regarding the necessity for release, either for curative or palliative treatment." The trial court observed at oral argument that when considering palliative care for a person in the concluding stages of an illness, "contact with family members in final days is what enables someone to bear the burden of a disease."

On appeal, defendant raises the following single point in the brief filed by counsel:

POINT I

THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON THE RESENTENCING MOTION. (Not Raised Below)

In his pro se brief, defendant raises the following point:

THE LAW DIVISION ABUSED ITS DISCRETION BY FAILING TO CONSIDER THE PREJUDICE TO DEFENDANT BY THE LONG PASSAGE OF TIME AFTER

THIS COURT'S REMAND, AS IT IMPACTED UPON THE MOTION FOR MEDICAL RELEASE.

The record before us indicates that shortly after the oral arguments before the trial court, defendant's medical parole application was denied because his prognosis had improved. An inmate with six months or less to live may qualify for medical parole. N.J.S.A. 30:4-123.51c; N.J.A.C. 10A:71-3.53. Although his illness was still considered terminal, defendant's prognosis had improved and then exceeded six months, thereby making defendant ineligible for medical parole.

It is apparent that due to the changing nature of defendant's medical status and the lack of a complete investigation by the Public Defender's Office, much of the information before the trial court was incomplete and out-of-date. Accordingly, in order that the matter can be decided on an updated and complete record, we remand to the trial court to reopen the application, and the Public Defender's Office should continue representation of defendant. The trial court should handle this remand on an accelerated basis.

Remanded. We do not retain jurisdiction.


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