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State v. Creveling


September 1, 2010


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 98-01-0004.

Per curiam.



Submitted June 22, 2010

Before Judges Carchman and Parrillo.

Defendant Mark Creveling appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

These are the relevant facts adduced from the record. On August 17, 1997, defendant, who was then seventeen years old, touched the genitals of a six year old boy and was charged with aggravated sexual assault, N.J.S.A. 2C:14-2(b). Defendant voluntarily waived his juvenile status, see Cannel, New Jersey Criminal Code Annotated, Comment 4 on N.J.S.A. 2C:4-11, and the matter was transferred to the Law Division. Defendant entered a plea of guilty, and the State recommended a five year sentence. An evaluation conducted at the Adult Diagnostic and Treatment Center (ADTC) concluded that defendant was a compulsive and repetitive sex offender, a finding not challenged by defendant. On April 13, 1998, defendant was sentenced to a five year term at the ADTC.

At the time of the plea and sentence, the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, had not been enacted, and at neither time was defendant advised of the possibility of civil commitment pursuant to the SVPA.

At the completion of defendant's penal sentence, the State moved to commit defendant pursuant to the SVPA, which was then in effect, and defendant was involuntarily committed in March 2001. During defendant's commitment, the order of commitment has been reviewed periodically. At the most recent review, a finding was made that defendant continues to pose a danger to himself and others. Defendant neither appealed the original sentence nor the SVP commitment.

In June 2006, eight years after the imposition of his sentence, defendant filed for PCR alleging ineffective assistance of counsel. He claimed that his "incarceration" was unwarranted and that he had ineffective assistance of counsel. Among other claims, he asserts that his attorney failed to inform him of the possibility of a "retroactive sentence" under the SVPA.

In April 2007, defendant's petition was denied. Judge DeVesa concluded that defendant had failed to establish ineffective assistance of counsel and further that defendant's PCR was time-barred. The judge noted that defendant could avail himself of additional remedies, specifically appealing the SVP reviews determining that he is a danger to himself and others. This appeal followed.

On appeal, defendant raises the following issues:


A. PCR counsel failed to address the issue of time bar pursuant to R. 3:22-12 resulting in the court finding the matter time barred.

B. PCR counsel's argument was ineffective, relied erroneously upon State v. Bellamy and failed to raise the appropriate arguments that could afford the defendant appropriate relief for violations of due process and fundamental fairness.

C. PCR counsel produced none of the documentary evidence that she claimed trial counsel should have produced, resulting in the denial of the claim for ineffective assistance of counsel.


"[I]neffective assistance of counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." State v. Nunez-Valdez, 200 N.J. 129, 138 (2009) (quotations and citations omitted). New Jersey courts have adopted the Strickland*fn1 two part test to establish IAC: "the defendant must show that '[defense] counsel's performance was deficient;' and... 'there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 138-39 (quoting State v. Preciose, 129 N.J. 451, 460 (1992)); see also State v. Fritz, 105 N.J. 42, 58 (1987). The PCR process should begin anew if "the defendant's post-conviction relief attorney entirely failed to subject the prosecution's case to meaningful adversarial testing... [and] the attorney's representation of the defendant amounts to no representation at all[.]" State v. Velez, 329 N.J. Super 128, 135 (App. Div. 2000).

We review ineffective assistance of counsel claims de novo. State v. Harris, 181 N.J. 391, 419 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898. "Assessing IAC claims involves matters of fact, but the ultimate determination is one of law and... 'a trial court's interpretations of law and the legal consequences that flow from established facts are not entitled to any special deference.'" Ibid. (quoting Manalapan Realty v. Twp. Comm. Of Manalapan, 140 N.J. 366, 378 (1995)).

Defendant maintains that PCR counsel's failure to file an amended brief addressing the issue of the time-bar after the prosecutor argued the matter was time-barred warrants a finding of ineffective assistance of counsel. According to defendant, PCR counsel neither asked the judge to excuse the time-bar in the interest of justice nor attempted to establish excusable neglect.

We address the issue of the time-bar. A PCR shall be filed no later than "5 years after the date of entry pursuant to Rule 3:21-5 of the judgment of conviction that is being challenged...." R. 3:22-12(a). The time-bar may be relaxed if defendant establishes that the delay "was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice." Ibid.

The concept of excusable neglect encompasses more than simply providing a plausible explanation for a failure to file a timely PCR petition. To determine whether a defendant has asserted a sufficient basis for relaxing the Rule's time restraints, we "should consider 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). Excusable neglect provides the means for a court to address and correct a criminal judgment where "adherence to it would result in an injustice." State v. McQuaid, 147 N.J. 464, 485 (1997)[.] [State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009).]

Allegations of excusable neglect must be supported by sufficient facts to support such claims. State v. Goodwin, 173 N.J. 583, 595 (2002).

The time-line here belies any suggestion of excusable neglect. Defendant was originally sentenced on April 13, 1998, committed under the SVPA in March 2001 and did not file for PCR until June 2006. On its face, the timing supports the judge's conclusion that defendant's PCR was time-barred under Rule 3:22-12.

We find no basis for relaxation of the time-bar rule. "Unless otherwise stated, any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice." R. 1:1-2(a).

In considering whether to grant relief under R. 1:1-2, the motion judge must consider the extent and cause of the delay, the prejudice to the State, and the importance of petitioner's claim in determining whether there has been an injustice which calls for relaxation of the time limits.

Obviously the longer the time-span since the original trial the more difficult a retrial becomes. Therefore, absent compelling, extenuating circumstances, the burden of justifying a petition filed after the five-year period increases with the extent of the delay. [State v. Cummings, 321 N.J. Super. 154, 168 (App. Div.) (citations omitted), certif. denied, 162 N.J. 199 (1999).]

We will not relax the R. 3:22-12 time-bar for PCR unless defendant "alleges and demonstrates that he can provide clear evidence that an innocent party has mistakenly pleaded guilty or has received a manifestly improper sentence." State v. Mitchell, 126 N.J. 565, 583 (1992). The Court waived the five year time bar in Norman, supra, because there was no evidential support to sustain the defendant's guilty plea. 405 N.J. Super. at 160. Here, there is no commensurate demonstration of any similar injustice.

Defendant further alleges that PCR counsel should not have relied on State v. Bellamy, 178 N.J. 127 (2003), because that case did not apply to defendant. PCR counsel instead should have sought to prove ineffective assistance of plea counsel by arguing that plea counsel overbore defendant's will.

PCR counsel focused her argument on Bellamy, supra, where the Court held that the court must inform the defendant of the possibility of civil commitment when pleading to a sexual offense under the SVPA. 178 N.J. at 143. The Bellamy rule applies to "those cases pending in which the defendant has not yet exhausted all avenues of direct review." Ibid. Defendant had no direct appeal pending and had never appealed his conviction. The PCR judge held that "the rule applied in Bellamy clearly does not apply to this particular defendant."

Defendant claims that plea counsel failed to inform defendant of his right to challenge the ADTC findings. According to defendant, PCR counsel was ineffective because counsel did not explore plea counsel's failure or produce evidence contradicting the ADTC findings.

Whenever the defendant is convicted of an offense enumerated in N.J.S.A 2C:47-1 et seq., the court, before imposing sentence or making disposition of the offender under the provisions of said chapter, shall furnish to the prosecutor, defendant or defendant's attorney a copy of the report of the [ADTC], shall advise defendant of the opportunity to be heard thereon, and shall afford the defendant such hearing.

[R. 3:21-3].

Defendants are entitled to a Horne*fn2 hearing to challenge ADTC findings. See State v. Condon, 391 N.J. Super. 609, 612 (App. Div.), certif. denied, 192 N.J. 74 (2007); State v, N.G., 381 N.J. Super. 352, 357-58 (App. Div. 2005). At the Horne hearing, the defendant has a right to "to be confronted with the witnesses against him, with the right to cross-examine and with the right to offer evidence on his own behalf." Horne, supra, 56 N.J. at 375.

At the waiver proceedings, counsel discussed the waiver from family court to the Law Division and the ADTC report with defendant:

Q: And, then once the guilty plea is done, you - -you understand that a Judge in adult Court is going to ask that an evaluation be done by Avenel. Do you understand that?

A: Yes.

Q: To see if you're acceptable for their treatment.

A: Uh-huh.

Q: Do you understand that?

A: Yes.

Q: And if they are acceptable, that that is where you are going to go.

A: Yes.

Plea counsel further discussed the sentencing with defendant's father:

Q: And, I have also spoken with you and your wife, regarding Avenel?

A: Yes.

Q: And, I - - I've explained that, that would not occur until he would go into the adult court and then Avenel would do an evaluation on your son?

A: Yes.

Q: And if it's determined that that's the appropriate treatment, then that's what we're going to be committed to.

A: Yes.

Defendant now argues that the waiver proceedings reflect that plea counsel represented that defendant would be committed to a sentence in the ADTC without the option of a Horne hearing.

Defendant further claims that there is a conflicting report which finds that defendant is not a repetitive and compulsive sex offender. PCR counsel failed to produce the report to challenge the ADTC finding. Defendant argues that without producing the conflicting report, PCR counsel could not show that the ADTC findings could be reversed at a hearing.

Defendant, however, does not now produce a report of alternate findings and requests an evidentiary hearing based on speculation that there may be a conflicting report. Speculation is not sufficient. Defendant cannot create a reasonable probability that the outcome would be different based on the suggestion that a report may exist to counter the State's proofs.

Furthermore, commitment under SVPA is not limited to repetitive and compulsive sex offenders. N.J.S.A 30:4-27.26. Even if defendant had challenged the ADTC finding, he would still be eligible for involuntary commitment under SVPA.

We conclude that defendant's PCR claims were both time-barred and failed to meet the standards enunciated in Strickland.

We affirm substantially for the reasons set forth in Judge DeVesa's thoughtful and thorough oral opinion of April 27, 2007.


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