March 1, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NELSON GARCIA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 97-04-0398.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 9, 2010 - Decided Before Judges Payne and Baxter.
Defendant, Nelson Garcia, appeals from an order denying his petition for post-conviction relief (PCR) as untimely. On appeal, he raises the following issues:
THE COURT'S RULING THAT THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WAS PROCEDURALLY BARRED BY THE 5 YEAR TIME BAR OF R. 3:22-12 WAS CONTRARY TO THE CRITERIA CONTROLLING THE "EXCUSABLE NEGLECT" EXCEPTION.
POINT II TRIAL COUNSEL'S FAILURE TO PROVIDE DR. WEISS WITH THE DEFENDANT'S MENTAL HEALTH RECORDS IN ORDER TO PRESENT AND DEVELOP A DIMINISHED CAPACITY DEFENSE SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT III DEFENDANT'S PETITION WAS NOT PROCEDURALLY BARRED BY R. 3:22-12 BECAUSE A SENTENCE THAT IS IMPOSED WITHOUT THE COURT CONSIDERING ALL APPLICABLE MITIGATING FACTORS IS ILLEGAL SINCE IT IS NOT IN ACCORDANCE WITH THE SENTENCE AUTHORIZED BY LAW.
POINT IV 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 V DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.
The other issues to which reference is made in Point V are the following:
THE TRIAL COURT'S REFUSAL TO PERMIT DR. WEISS TO TESTIFY DENIED MR. GARCIA HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO COMPULSORY PROCESS, TO PRESENT A DEFENSE, TO DUE PROCESS OF LAW AND TO A FAIR TRIAL. U.S. CONST., AMENDS. VI AND XIV; N.J. CONST. (1947) ART. I PARS. 1, 9, AND 10.
POINT II THE PROSECUTOR'S REFERENCE IN THE PRESENCE OF THE JURY TO A PSYCHIATRIC EVALUATION BARRED FROM BEING ENTERED INTO EVIDENCE SO SEVERELY PREJUDICED THE JURY AND VIOLATED THE RULES OF EVIDENCE SO AS TO MERIT A DETERMINATION OF MISTRIAL.
POINT III MR. GARCIA DID NOT MEET THE CRITERIA OF MENS REA AS DEFINED IN STATE V. BREAKIRON, 108 NJ 591, 598-599 (1987) AND, BY DENYING DEFENDANT'S EXPERT TESTIMONY, THE COURT DID NOT PERMIT DEFENSE COUNSEL OPPORTUNITY TO ESTABLISH THIS TO THE JURY.
POINT IV DENIAL OF EXPERT TESTIMONY FOR DEFENDANT WAS DUE, IN PART, TO INEFFECTIVE COUNSEL [BY] COUNSEL'S OWN ADMISSION AND TO THE COURT'S SELF-SERVING INTEREST IN TRIAL EXPEDIENCY AT THE EXPENSE OF DEFENDANT'S RIGHTS AND PURSUIT OF HIS DEFENSE.
POINT V DEFENDANT'S CONTENTION OF TRIAL ERROR ESTABLISHES CUMULATIVE ERROR THUS DENYING HIM A FAIR TRIAL.
Defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1) and (2), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, on evidence that he had bludgeoned to death his male housemate. At trial, defendant contended that he had awakened after a night of sex, drugs and drinking to find the victim, an acknowledged homosexual, committing fellatio on him. Upon realizing that he was being violated, defendant, who was heterosexual, went "nuts" and killed the victim in an act of passion/provocation manslaughter. The jury did not accept defendant's defense.
Defendant was sentenced on December 18, 1998 to life in prison with a thirty-year period of parole ineligibility for the murder. The weapons conviction was merged into that for murder. We affirmed defendant's conviction in an unreported opinion, State v. Garcia, No. A-1730-99 (App. Div. May 30, 2002), and certification was denied. State v. Garcia, 174 N.J. 366 (2002).
On June 21, 2005, approximately eighteen months after the five-year period for filing of PCR petitions established by Rule 3:22-12(a) had expired, defendant filed a petition for PCR pro se. The petition was denied as untimely on June 27, 2005. However, on September 20, 2005, in response to defendant's motion before us to proceed on appeal as an indigent and for assignment of counsel, an order was entered remanding the matter to the Law Division "for reconsideration of the petition after the assignment of counsel, who can assert a basis for relaxation of the time limits embodied in Rule 3:22-12."
On remand, the court permitted briefing on the issue of timeliness and ordered a hearing on that issue, which occurred initially on December 7, 2007. However, because PCR counsel did not have discovery from Mark Furey, an attorney allegedly retained to file a PCR petition on defendant's behalf, the matter was adjourned to March 7, 2008. At that time, PCR counsel offered a brief on the issue of timeliness and the October 4, 2007 certification of defendant, which stated,
I, Nelson Garcia, filed my application for PCR after the deadline for the following reasons:
1. Ignorance of the law.
2. Sometimes it takes a month to get into law library. Prison policy does not take into account deadlines that prisoners need to file motions. In addition, there are strict time limits for legal research.
3. I thought that attorney applied for PCR when he was actually filing for an appeal.
4. Attorney Mark Furey [sic] was hired to argue PCR but he missed the deadline. I was refunded all of my legal fees.
5. I signed a form to release my records to Mr. Hilkevich (paralegal) on 10/29/03. This was done before the five year limit.
Additionally, counsel presented documentary evidence that, on October 29, 2003, defendant had authorized the release of unspecified records to "Mr. Jhon," who appears to have been John S. Hilkevich, Ph.D., the Director of Spiritual Resource Services, a Christian organization providing, among other things, prison ministry and social and legal services to those in need. In 2003, Hilkevich was serving a prison sentence, and he was allegedly acting as a paralegal. Additionally, counsel offered a form PCR petition executed by defendant and an unexecuted form request for appointment of counsel for purposes of PCR, both dated December 1, 2003, *fn1 together with an unexecuted transmittal letter dated December 13, 2003, purporting to transmit defendant's PCR petition for filing to the Superior Court in Ocean County. No evidence of mailing or receipt was provided, and the record does not indicate any further action taken at the time. Additionally the prosecutor has represented that the PCR petition did not appear in the prosecutor's files and was not recorded on the State's calendaring system, promis gavel.
Counsel also provided a letter from Hilkevich to Mark Fury, dated June 14, 2005, shortly before defendant's untimely PCR petition was filed, stating:
Enclosed is a copy of Nelson Garcia's PCR I prepared. I am going to personally file it on Friday, June 17.
I'm providing it to you for your review and consideration for oral argument. You will recall our discussion and your willingness to represent Nelson before the court for a fee we have yet to finalize.
I trust you will find merit in this PCR and that we can soon arrange for your representation.
The record reflects that, by check dated July 19, 2005, Hilkevich paid Fury a fee of $2,500.
A January 15, 2006 letter from Hilkevich to Fury noted that Fury had visited defendant in prison. However, in a letter dated September 21, 2006 from Fury to defendant, Fury stated his understanding that he was retained only to argue defendant's PCR petition, not to re-file it, and that he had never been informed of a hearing date. The letter continued: "When Mr. Hilkevich wrote me in June to say your PCR had been denied, I was . . . surprised. I would have thought that you would have forwarded any scheduling information to my office." As a consequence of his inability to argue on defendant's behalf Fury agreed to refund the remainder of Hilkevich's retainer to Hilkevich, which he did.
After hearing argument in the matter, the PCR judge denied relief, ruling that defendant had failed to demonstrate the exceptional circumstances that would have warranted relief from the bar under State v. Mitchell, 126 N.J. 565, 579-80 (1992). In reaching this conclusion, the judge, citing State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div. 1998)*fn2 , found that ignorance of the law provided no excuse and that failure to understand the law regarding the time to file was equally unavailing as an excuse under State v. Dugan, 289 N.J. Super. 15, 22 (App. Div.), certif. denied, 145 N.J. 373 (1996).
Addressing defendant's statement regarding the inaccessibility of the library, the judge noted that defendant had substantially missed the PCR petition filing deadline, and he concluded that "[i]t is doubtful that a delay of this magnitude [wa]s caused by denial of prison library access." The judge also rejected the claim that defendant was relying on others to file his petition who failed to perform as anticipated. He held that no evidence supported the conclusion that defendant was relying on Hilkevich in the period before
December 2003 to file a PCR petition, and he had failed to do so; and that evidence of Hilkevich's activities on defendant's behalf commenced with a document dated June 14, 2005, which was six and one-half years after defendant's sentence was imposed. An order denying PCR was signed on March 7, 2008. This appeal followed.
Our review of the record in this matter satisfies us that defendant's PCR petition, filed eighteen months after the deadline established by Rule 3:22-12, was untimely, and that defendant failed to offer exceptional circumstances that would justify relief from the rule's bar pursuant to Rule 1:1-2. Mitchell, supra, 126 N.J. at 579-80; see also State v. Afanador, 151 N.J. 41, 52 (1997) (discussing standard). We concur with the PCR judge's ruling that ignorance of the law and of the time limits applicable to the filing of PCR petitions provide insufficient grounds to justify our recognition of defendant's untimely petition. Further, any difficulty defendant may have as the result of lower intelligence or difficulty reading or writing is insufficient to excuse the late filing. State v. Cummings, 321 N.J. Super. 154, 166 (App. Div.), certif. denied, 162 N.J. 199 (1999). We are also satisfied that defendant did not establish that he perfected his claim in 2003, and that his efforts in 2005 through John Hilkevich occurred long after the applicable five-year period had expired.
In reaching our conclusion, we have considered "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." Afanador, supra, 151 N.J. at 52. In that connection, we have reviewed defendant's substantive arguments, most of which were or should have been raised on direct appeal and are therefore barred in this context.*fn3 R. 3:22-4 and 3:22-5. None is of sufficient importance to require our review at this point.
We note in this regard that defendant has made a claim in Point II of his counseled brief that counsel was ineffective under standards established by Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) and adopted in New Jersey by State v. Fritz, 105 N.J. 42, 58 (1987), because he failed to supply defendant's examining psychiatrist with mental health records pertaining to defendant's youth in support of a diminished capacity defense. However, our review of those records satisfies us that the records provide no support for such a defense.
In defendant's remaining argument, set forth in Point III of his counseled brief, he claims that his sentence was illegal, and thus our review is required pursuant to Rule 3:22-2(c). However, the argument that defendant makes concerns the alleged excessiveness of his sentence as the result of the judge's purported failure to consider applicable mitigating factors. Thus, the rule is inapplicable. State v. Acevedo, ___ N.J. ___, ___ (2011) (slip op. at 7) (excessiveness of sentence is not a ground for relief through a petition for PCR, but instead is a claim that must be raised on direct appeal) (quoting State v. Clark, 65 N.J. 426, 536-37 (1974)).*fn4