January 20, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GEORGE BRATSENIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 79-01-1215.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 8, 2010
Before Judges Fuentes and Nugent.
Defendant George Bratsenis appeals from the March 13, 2009 order denying his petition for post-conviction relief (PCR). We affirm.
On July 31, 1980, a Monmouth County Grand Jury charged defendant in Indictment Number 79-01-1215 with unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count one); unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count two); possession of a controlled dangerous substance, N.J.S.A. 24:21-20a(1) (count three); unlawful possession of a weapon with a purpose to use it unlawfully, N.J.S.A. 2C:39-4(a) (count four); unlawful possession of a weapon with a purpose to use it unlawfully, N.J.S.A. 2C:39-4(a) (count five); and unlawful possession of a weapon, N.J.S.A. 2C:39-7 (count six). On January 30, 1981, defendant was sentenced to a five-year prison term after having pled guilty to unlawful possession of a weapon (count two) in exchange for the State dismissing the remaining counts of the indictment. According to the PCR court, defendant appealed his conviction on January 30, 1981. The appeal was denied and the conviction affirmed.*fn1 On May 12, 2008, defendant, representing himself, filed a PCR petition seeking to set aside his guilty plea.*fn2
In his PCR petition defendant claimed, "I was not advised of my right to trial either in my plea form, or voire dire as evidenced by my using a LR-27 plea form ...." Counsel was subsequently assigned and on February 27, 2009, defendant supplemented his petition and claimed he was innocent. He asserted that he pled guilty because his lawyer told him he had already "served the majority of the time in the county jail and would probably get time served." He also asserted that the refusal to permit him to withdraw his plea would be extremely prejudicial because "it is the second of three 'strikes' which made me persistent offender eligible and thus I am serving a twenty-five ... year sentence."*fn3
Defendant argued before the PCR court that his trial counsel was ineffective in not advising him of the constitutional rights he was waiving by pleading guilty; including his right to a trial, to confront witnesses, and to compulsory process. Defendant also argued he had been prejudiced by counsel's ineffective assistance because as a result of the plea, he is now serving an extended prison term on an unrelated offense in another county. Lastly, defendant argued that his petition is not time barred by the five-year time limitation of Rule 3:22-12 because he has asserted constitutional issues.
On March 13, 2009, the PCR court denied defendant's petition. The court determined that the PCR petition was untimely, having been filed long after the five-year deadline in Rule 3:22-12. The court found that the judgment of conviction was twenty-seven years old, defendant "offer[ed] no examples of excusable neglect or examples of why enforcement of that five year time bar would result in manifest injustice," "no records exist in the Prosecutor's Office, in the Public Defender's Office or even in the Attorney General's Office," and the State would be unable to prosecute the case.
The PCR court also determined that defendant had not demonstrated sufficient grounds to withdraw his guilty plea, finding "[h]e really has not asserted a colorable claim of innocence." The court explained, "[d]efendant's new claim that he is innocent of the charge to which he pled guilty is nothing more than ... a bare assertion and he has not attempted to give his assertion any support whatsoever."
On June 10, 2009, defendant filed a notice of appeal from the March 13, 2009 order. On appeal, defendant raises the following issues:
THE LOWER COURT SHOULD HAVE GRANTED THE DEFENDANT'S POST CONVICTION RELIEF PETITION, BASED ON INEFFECTIVE ASSISTANCE OF COUNSEL, BECAUSE 1.) THE DEFENDANT PRESENTED EXCEPTIONAL CIRCUMSTANCES TO PERMIT RELIEF FROM THE FIVE YEAR LIMITATION OF R. 3:22-12 AND 2.) THE DEFENDANT'S PLEA ATTORNEY COMMITTED A SERIOUS AND PREJUDICIAL ERROR BY FAILING TO INSURE THAT THE PLEA COURT ADDRESSED THE DEFENDANT ABOUT THE CONSTITUTIONAL RIGHTS WAIVED WITH A GUILTY PLEA.
Defendant filed his PCR petition more than twenty-seven years after his conviction. When he filed his petition, Rule 3:22-12 provided:*fn4
A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to the Rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.
Defendant claims he has demonstrated excusable neglect and exceptional circumstances because "significant constitutional rights were at stake; that the cause of the filing delay was not attributable to [him]; and ... although re-prosecution would be difficult, [he] had completed the sentence imposed and the interests of justice required the relaxation of R. 3:22-12."
"A [PCR] petition is time-barred if it does not claim excusable neglect, or allege the facts relied on to support that claim." State v. Cann, 342 N.J. Super. 93, 101-02 (App.Div.) (citing State v. Mitchell, 126 N.J. 565, 577 (1992)), certif. denied, 170 N.J. 208 (2001). "R. 3:22-12's time-bar should only be relaxed under exceptional circumstances." Id. at 102 (citing State v. Afanador, 151 N.J. 41, 52 (1997)). "The court 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." Mitchell, supra, 126 N.J. at 580. As the Supreme Court explained:
There are good reasons for such a Rule. As time passes after conviction, the difficulties associated with a fair and accurate reassessment of the critical events multiply. Achieving "justice" years after the fact may be more an illusory temptation than a plausibly attainable goal when memories have dimmed, witnesses have died or disappeared, and evidence is lost or unattainable. Those difficulties have not gone unnoticed by our courts. See, e.g., State v. Dillard, 208 N.J. Super. 722, 727 (App.Div.) ("with the passage of time it may become more difficult to rule upon the allegations in a petition for post-conviction relief ...."), certif. denied, 105 N.J. 527 (1986); State v. Marshall, 244 N.J. Super. 60, 69 (Law Div. 1990) (faced with the potential prospect of evaluating the constitutionality of a twenty-two-year-old conviction, "it would be a practical impossibility ... to conduct a proper hearing"). Moreover, the Rule serves to respect the need for achieving finality of judgments and to allay the uncertainty associated with an unlimited possibility of relitigation. The Rule therefore strongly encourages those believing they have grounds for post-conviction relief to bring their claims swiftly, and discourages them from sitting on their rights until it is too late for a court to render justice.
[Mitchell, supra, 126 N.J. at 575-76.]
As the trial court explained, the delay here is more than twenty-seven years. The transcript of the plea hearing is no longer available, so defendant's constitutional claims cannot be properly evaluated. The State can no longer prosecute the case because of the time lapse and consequent loss of evidence. Additionally, defendant's assertion that he is innocent is unsupported and self-serving. Defendant has demonstrated neither excusable neglect nor exceptional circumstances that warrant consideration of his PCR petition more than twenty-seven years after his plea. His petition is time-barred under Rule 3:22-12.
Defendant also claims he was denied effective assistance of counsel. Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid. See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
"To set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases, and (ii) that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." State v. DeFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996) (internal quotations and citations omitted).
The PCR court aptly characterized defendant's claim of innocence as a "bare assertion." Defendant does not deny that he possessed the gun that was the basis for his guilty plea, nor does he offer any explanation to support his claim of innocence. In exchange for defendant pleading guilty, the State dismissed other charges that could have resulted in a significantly greater sentence if defendant were tried and convicted on all charges. Thus, even if we assume the first Strickland prong has been satisfied, defendant has not satisfied the second Strickland prong. Consequently, we affirm the PCR court's denial of defendant's petition.