February 24, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WAYNE A. DAVIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 00-04-0689.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 26, 2011 - Decided: Before Judges Cuff and Sapp-Peterson.
Defendant Wayne A. Davis is serving a seventy-year term of imprisonment with a twenty-five year period of parole ineligibility following his conviction of armed robbery of a woman at a bus stop in the early morning hours in Freehold. Defendant appeals from an order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
On appeal, defendant raises the following arguments:
POINT I -THE COURT ERRED IN FAILING TO APPLY
THE "INJUSTICE" CRITERIA OF R. 1:1-2 TO RELAX THE PROCEDURAL 5 YEAR TIME BAR BECAUSE THE DEFENDANT'S PETITION FOR CERTIFICATION ON DIRECT APPEAL WAS NOT DENIED IN ITS ENTIRETY BY THE SUPREME COURT UNTIL NOVEMBER 17, 2007. (RAISED IN PART BELOW).
POINT II -THE COURT ERRED IN DENYING POST- CONVICTION RELIEF WITHOUT FIRST CONDUCTING A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S FAILURE TO PRESENT EXPERT TESTIMONY AT THE PRETRIAL MIRANDA HEARING TO SHOW HOW THE ALCOHOL AND COCAINE INGESTED BY THE DEFENDANT RENDERED HIM UNABLE TO FULLY COMPREHEND THE CONSEQUENCES OF HIS WAIVER RESULTED IN A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER BOTH PRONGS OF THE STRICKLAND/FRITZ TEST.
POINT III -THE COURT'S RULING DENYING POST-
CONVICTION RELIEF VIOLATED THE DEFENDANT'S FEDERAL CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE [OF] COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE DEFENDANT'S STATE CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY ART. I., PAR. 10, OF THE NEW JERSEY CONSTITUTION.
POINT IV -DEFENDANT REASSERTS ALL OTHER ISSUES
RAISED IN SUPPORT OF POST-CONVICTION RELIEF.
Defendant filed his petition for PCR on August 13, 2007, five years and nine months after entry of the judgment of conviction. Judge Mellaci held that Rule 3:22-12 barred the petition. The judge found defendant could not establish excusable neglect because defendant admitted he was not aware of the PCR procedure.
The five-year limitation period should be relaxed "only under exceptional circumstances." State v. Mitchell, 126 N.J. 565, 580 (1992). A petitioner who files a late PCR petition must do "more than simply provid[e] a plausible explanation" for his failure to meet the five-year limitation. State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). Rather, defendant must "articulate facts that demonstrate a serious question about his or her guilt or the propriety of the sentence imposed and . . . provide factual evidence to support it . . . ." Mitchell, supra, 126 N.J. at 580.
Here, defendant simply concedes ignorance of the availability of the procedure and no knowledge of the applicable limitations. While defendant's candor is commendable, his excuse falls woefully short of establishing excusable neglect.
On appeal, defendant advances the protracted direct appeal proceedings as a reason for the delay. This argument ignores defendant's stated reason before Judge Mellaci. This argument also fails because defendant actually filed his petition three months before denial of his petition for certification, and the pendency of a direct appeal does not toll the time to seek PCR. State v. Dugan, 289 N.J. Super. 15, 19 (App. Div.), certif. denied, 145 N.J. 373 (1996).
Judge Mellaci also addressed the merits of defendant's petition. Defendant contended trial counsel was ineffective because he should have produced an expert at the Miranda*fn1
hearing. According to defendant, the expert would have opined that defendant's cocaine ingestion prior to apprehension rendered his post-arrest statements involuntary.
Judge Mellaci held that defense counsel's representation fell well within the wide range of professionally competent assistance. The judge found that defense counsel effectively cross-examined the police officers to support the contention that defendant was high at the time of his arrest. Judge Mellaci also rejected the opinion offered in support of the PCR petition as a net opinion. He found that the opinion relied on facts not reflected in the record of the trial or suppression hearing. Finally, the judge noted the conviction also rested on strong eyewitness identification.
An evidentiary hearing will not be conducted unless defendant establishes a prima facie case. To establish a prima facie case, the "defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits." R. 3:22-10(b); see also State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel . . . . Thus, when petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certi- fications based upon the personal knowledge of the affiant or the person making the certification. [State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999) (emphasis added).]
Indeed, the court is barred from granting an evidentiary hearing "for the purpose of permitting a defendant to investigate whether additional claims for relief exist for which defendant has not demonstrated a reasonable likelihood of success[.]" R. 3:22-10(d)(3); see Marshall, supra, 148 N.J. at 158.
Here, the expert opinion produced by defendant does not raise questions about the strategy adopted by defense counsel at the Miranda hearing. The expert opines that defendant was too high to knowingly and voluntarily waive his right to remain silent. Yet, the facts on which he relies are not supported by the record, particularly defendant's testimony at the Miranda hearing about the amount of cocaine he had ingested. An opinion is no stronger than the facts on which it rests. State v. Vandeweaghe, 351 N.J. Super. 467, 480 (App. Div. 2002), aff'd, 177 N.J. 229 (2003). When the facts find no support in the record, a judge assessing whether defendant has established a prima facie case is free to disregard the opinion.
Moreover, defense counsel vigorously prosecuted the suppression motion. He forcefully cross-examined the police officers who apprehended and questioned defendant and elicited testimony from defendant and his girlfriend about his activities prior to arrest. In short, defense counsel presented a full record from which the trial judge could assess defendant's intoxication at the time of his arrest and his ability to knowingly and voluntarily waive his right to remain silent.
Having canvassed the record in its entirety, we are satisfied that Judge Mellaci properly invoked the Rule 3:22-12 procedural bar and correctly assessed the petition as failing to demonstrate a prima facie case warranting an evidentiary hearing.
We, therefore, affirm the March 20, 2009 order denying defendant's PCR petition.