February 3, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID GOODWIN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 89-12-2517.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 11, 2011
Before Judges Yannotti and Skillman.
Defendant David Goodwin appeals from an order entered by the Law Division on January 4, 2010, denying his third petition for post-conviction relief (PCR). We affirm.
Defendant was tried before a jury and found not guilty of knowing and purposeful murder, N.J.S.A. 2C:11-3(a)(1); but guilty of felony murder, N.J.S.A. 2C:11-3(a)(3); armed robbery, N.J.S.A. 2C:15-1; unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). After appropriate mergers, the court sentenced defendant to thirty years of incarceration, with a thirty-year period of parole ineligibility for the felony murder, and a concurrent term of five years for unlawful possession of a weapon.
On direct appeal, we affirmed defendant's conviction and sentence. State v. Goodwin, No. A-3742-90 (App. Div. Mar. 12, 1993). The Supreme Court denied defendant's petition for certification. State v. Goodwin, 134 N.J. 475 (1993).
In January 1994, defendant filed his first petition for PCR, which the trial court denied by order entered on February 23, 1995. Defendant appealed and argued that the PCR judge should have disqualified herself and he was denied the effective assistance of trial, appellate and PCR counsel. We found no merit in these arguments and affirmed the denial of PCR. State v. Goodwin, No. A-3771-94 (App. Div. Nov. 17, 1997). The Supreme Court denied defendant's petition for certification. State v. Goodwin, 153 N.J. 214 (1998).
In August 1998, defendant filed his second petition for PCR. He claimed that he was denied the effective assistance of trial counsel because counsel failed to: properly investigate the circumstances of his original arrest; properly prepare defendant for trial; call character witnesses on defendant's behalf; and challenge the "admissibility" of the State's witnesses. He also claimed that he was denied the effective assistance of PCR counsel because counsel failed to: properly investigate the circumstances of the original arrest; take depositions from potential character witnesses regarding their availability for trial; secure an evidentiary hearing regarding the ineffectiveness of trial counsel; and take depositions of co-defendant and others regarding defendant's plea agreement. In addition, defendant alleged that he was not given a full and fair opportunity to review the trial evidence and present his case in violation of his right to due process.
The trial court entered an order dated July 29, 1999, denying defendant's petition. We reversed the trial court's order and remanded the matter for a hearing on defendant's claim that he was denied the effective assistance of counsel because his trial attorney did not challenge his arrest, the search of his vehicle or subsequent confession. State v. Goodwin, No. A-277-99 (App. Div. May 18, 2001) (slip. op. at 23-24).
The Supreme Court granted the State's petition for certification and reversed. State v. Goodwin, 173 N.J. 583 (2002). The Court held that defendant's second PCR petition was barred by Rule 3:22-12(a) because it had not been filed within five years after entry of the judgment of conviction and because defendant had not established that his failure to raise his claims within the time required was due to "excusable neglect." Id. at 589. The Court additionally determined that relaxation of the time bar was not required because of a some fundamental injustice or constitutional error. Id. at 595.
The Court also found that, even if the petition was not time-barred, the court did not err by denying PCR because defendant failed to establish a prima facie case of ineffective assistance of counsel. Id. at 596. The Court concluded that the police had probable cause to arrest defendant and, therefore, counsel was not ineffective for failing to challenge the arrest, the search of the vehicle or defendant's subsequent confession. Id. at 600-01.
Thereafter, defendant filed his third PCR petition, in which he raised the following contentions:
POINT 1 POST-CONVICTION RELIEF [RULES] 3:22-4 AND 3:22-12 DO NOT BAR THE COURT'S CONSIDERATION OF DEFENDANT'S CLAIM.
POINT 2 THE TRIAL COURT'S FAILURE TO DEFINE THE ELEMENTS OF CRIMINAL ATTEMPT IN THE JURY INSTRUCTION ON ROBBERY VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS AND FAIR TRIAL.
POINT 3 THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL AND THE RIGHT TO DUE PROCESS AS GUARANTEED UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WHERE THE TRIAL COURT ISSUED A DEFECTIVE JURY INSTRUCTION ON ACCOMPLICE LIABILITY.
POINT 4 THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL, ON DIRECT APPEAL, AND ON HIS FIRST PETITION FOR POST-CONVICTION RELIEF IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
POINT 5 HAVING DEMONSTRATED "GOOD CAUSE" THE DEFENDANT IS ENTITLED TO APPOINTMENT OF COUNSEL ON HIS THIRD PETITION FOR POST-CONVICTION RELIEF UNDER [RULE] 3:22-6(b).
The trial court issued a written opinion, in which it found that defendant's petition was barred by Rule 3:22-12(a) because it had been filed more than eighteen years after the entry of the judgment of conviction and defendant had not shown that his failure to raise the claims in a timely manner was due to "excusable neglect," or that his conviction was the result of some fundamental injustice or constitutional error.
The court additionally found that defendant's claims were barred by Rule 3:22-5 because his claims regarding alleged deficiences in the jury instructions had been resolved in the prior proceedings. The court further found that, even if the specific claims raised in this matter had not been adjudicated previously, the claims were barred by Rule 3:22-4 because they should have been raised in the earlier proceedings.
The court memorialized its decision in an order dated January 4, 2010. Defendant appeals and raises the following arguments for our consideration:
POINT I: THE DEFENDANT'S ROBBERY AND FELONY MURDER CONVICTIONS MUST BE REVERSED BECAUSE THE TRIAL JUDGE FAILED TO DEFINE THE ELEMENTS OF CRIMINAL ATTEMPT IN HIS JURY INSTRUCTIONS ON ROBBERY.
POINT II: DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE [OF] COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO OBJECT TO THE FAULTY JURY CHARGE AS TO ATTEMPT, WHEN HIS APPELLATE ATTORNEY FAILED TO RAISE THIS ISSUE ON DIRECT APPEAL, AND WHEN PCR COUNSEL FAILED TO RAISE THIS ISSUE IN DEFENDANT'S FIRST AND SECOND PCRS.
POINT III: DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF IS NOT TIME BARRED BY [RULE] 3:22-12.
A. [RULE] 3:22-12(c) IS NOT APPLICABLE TO THIS CASE.
B. THE INTERESTS OF JUSTICE REQUIRE THAT DEFENDANT'S PETITION NOT BE TIME BARRED BY [RULE] 3:22-12(a).
POINT IV: [RULE] 3:22-4 DOES NOT BAR DEFENDANT FROM RAISING THE TRIAL COURT'S FAILURE TO CHARGE THE ELEMENTS OF THE CRIME OF ATTEMPTED ROBBERY IN THIS PETITION FOR POST-CONVICTION RELIEF.
We are convinced from our review of the record that defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm the denial of defendant's third PCR petition substantially for the reasons stated by the PCR court in its written opinion. However, we add the following brief comments.
Rule 3:22-12(a) requires a defendant to file a petition for PCR within five years of the entry of the judgment or sentence unless the defendant shows that the delay "beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions [are] found to be true enforcement of the time bar would result in a fundamental injustice."
The trial court correctly found that defendant's petition was barred by Rule 3:22-12(a). As noted previously, the petition was filed more than eighteen years after the judgment of conviction was entered in this case. The trial court correctly found that defendant has not shown "how his trial, appellate, and PCR attorneys' alleged ineffective assistance of counsel contributed to [the] extensive delay in filing this petition[.]"
The court noted that defendant's petition was based on the claim that the trial judge erred by failing to provide an instruction on attempted robbery. The court pointed out that several courts had considered defendant's claims regarding deficiencies in the jury instructions, and defendant provided no plausible explanation for his failure to raise this issue in a timely manner.
The trial court also correctly found that, even if not time-barred, defendant's petition was barred by Rule 3:22-5 because issues regarding the correctness of the jury instructions had been resolved in the prior proceedings and, if the issue raised here had not been directly addressed in those proceedings, the claim was barred by Rule 3:22-4 because it should have been raised earlier.
Furthermore, the trial court aptly noted that, even if the jury had been instructed on and had convicted defendant of attempted robbery rather than robbery, this would not have affected his conviction of felony murder. As the court pointed out, the aggregate sentence and penalties imposed here would have been the same.
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