August 11, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CLIFFORD J. GRAF, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 85-07-945.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 2, 2011
Before Judges R. B. Coleman and Lihotz.
Defendant Clifford J. Graf, convicted in 1986 of murder, N.J.S.A. 2C:11-3(a)(2); felony murder, N.J.S.A. 2C:11-3(a)(3); armed robbery, N.J.S.A. 2C:15-1; third-degree theft, N.J.S.A. 2C:20-3(a); and third-degree unlawful possession of a handgun without first having obtained a permit to carry same, N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:58-4, appeals pro se from the Law Division's denial of his fourth petition for post-conviction relief (PCR). We affirm.
On March 7, 1986, the trial judge sentenced defendant to an aggregate term of life imprisonment plus four years with a thirty-two year period of parole ineligibility. We affirmed defendant's conviction in an unpublished opinion, State v. Graf, No. A-3940-85 (App. Div. April 14, 1988). The Supreme Court denied defendant's petition for certification, State v. Graf, 113 N.J. 337 (1988).
In 1989, defendant's first petition for PCR was denied by the Law Division. We remanded for an evidentiary hearing, at the conclusion of which the PCR court determined that trial counsel had not been ineffective. In an unpublished opinion, we affirmed the denial of defendant's PCR petition. State v. Graf, No. A-2928-92 (App. Div. Feb. 6, 1996). The Supreme Court denied defendant's petition for certification. State v. Graf, 144 N.J. 589 (1996).
Defendant also filed an application in the United States District Court for the District of New Jersey seeking a writ of habeas corpus. That application was denied on October 31, 1997. Graf v. Pinchak, No. 97-10-98 (D.N.J. Oct. 31, 1997).
On January 21, 1998, defendant filed his second petition for PCR. The Law Division concluded the petition was procedurally barred and dismissed it. We affirmed in an unpublished opinion, State v. Graf, No. A-3434-98 (App. Div. June 26, 2000), following which certification was denied by the Supreme Court. State v. Graf, 169 N.J. 605 (2001).
Defendant filed two federal habeas corpus applications, which were dismissed in due course.*fn1 In the interim, on August 31, 2007, defendant filed a third petition to correct an illegal sentence related to the imposition of consecutive terms. After a hearing, the Law Division denied the petition, reasoning that a Yarbough*fn2 violation does not give rise to an illegal sentence. We heard the matter on the excessive sentencing calendar and affirmed the denial of the petition. State v. Graf, No. A-3387-07 (App. Div. Apr. 29, 2009).
Defendant then filed this petition for PCR, which the Law Division denied on November 16, 2009. Judge Ira E. Kreizman concluded that defendant's petition was time-barred pursuant to Rule 3:22-12, since it was filed more than twenty years after his direct appeal and eighteen-years after the five-year filing period had expired. The judge explained that defendant's sentencing claims, including the asserted violation of Yarbough by double-counting aggravating factors and the not stating separate reasons for imposing consecutive sentences, were not cognizable on PCR as they amounted to excessive sentencing claims, rather than illegal sentencing claims. See State v. Flores, 228 N.J. Super. 586, 588 (App. Div. 1988) (concluding that allegations of improper consideration of aggravating and mitigating factors and consecutive sentencing guidelines were not cognizable on PCR), certif. denied, 115 N.J. 78 (1989). Judge Kreizman also rejected defendant's argument that the time bar should be relaxed due to defendant's excusable neglect, given that he was unaware of a violation of his sentence until recently. The judge analogized defendant's argument to ignorance of the law, which is not excusable neglect. See State v. Mitchell, 126 N.J. 565, 579 (1992). The judge further found that the time bar should not be relaxed in the interest of justice, and observed that "defendant seems to be filing a petition for ineffective assistance of counsel to just receive a second bite at arguing his excessive sentence which was, and should have been, argued on appeal."
In his pro se brief on appeal, defendant raises the following arguments:
POINT I: THE PCR COURT ERRONEOUSLY DENIED GRAF THE APPOINTMENT OF COUNSEL.
POINT II: THE PCR COURT ERRED BY DENYING THE PETITION.
A. The court's findings that Graf did not explain how counsel is ineffective is erroneous.
B. The court's reasoning that ignorance of the law is no excuse is misplaced.
C. The court felt that Graf was just raising the issues as another attempt to get his illegal sentence petition in front of the court again.
D. The exception to the procedural bars of Rule 3:22-12 and Rule 3:22-4.
POINT III: INEFFECTIVE ASSISTANCE OF DIRECT APPEAL COUNSEL.
POINT IV: PETITIONER ESTABLISHED EXCUSABLE NEGLECT, AND THE INTEREST OF JUSTICE REQUIRED THAT THE PETITION BE GRANTED.
POINT V: THE SENTENCING COURT VIOLATED THE YARBOUGH GUIDELINES BY FAILING TO STATE A SEPARATE REASON ON THE RECORD FOR A CONSECUTIVE SENTENCE.
POINT VI: THE SENTENCING COURT VIOLATED GRAF'S DUE PROCESS RIGHTS BY DOUBLE COUNTING THE DEATH OF THE VICTIM AS AN AGGRAVATING FACTOR.
POINT VII: IT WOULD NOT BE FUTILE TO REMAND THIS MATTER.
We have carefully considered these arguments and the applicable law, and we conclude that the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We agree with Judge Kreizman's analysis and decision; and we affirm for substantially the reasons expressed in his November 16, 2009 oral opinion. We briefly reiterate the relevant rules and standards of review.
Rule 3:22-12(a)(2) provides that, subject to certain exceptions not relevant to defendant's application, no petition for PCR shall be filed . . . more than 5 years after the date of entry . . . of the judgment of conviction that is being challenged unless it alleges facts showing 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 . . . would result in a fundamental injustice.
The five-year period is not tolled by the filing of appellate proceedings. State v. Dugan, 289 N.J. Super. 15, 19 (App. Div.), certif. denied, 145 N.J. 373 (1996). In assessing whether excusable neglect justifies the delay, courts 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) (citation omitted). "Absent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay." Ibid.
The analysis in State v. Cummings, 321 N.J. Super. 154 (App. Div. 1999), is instructive. In that case, the defendant's petition was filed nearly ten years after the judgment of conviction. Id. at 165. The defendant contended the delay was attributable to his illiteracy and his lack of understanding that he had the option to seek PCR. Id. at 166. These grounds were rejected as a basis for exemption from the five-year time bar as such "conclusory statements" could not constitute excusable neglect. Ibid.
We agree with the PCR judge that the eighteen-year delay was not occasioned by excusable neglect. As in Cummings, this defendant claims his failure to file within five years of his sentence is attributable to his lack of knowledge of the Yarbough guidelines and State v. Copling, 326 N.J. Super. 417, 441-42 (App. Div. 1999), certif. denied, 164 N.J. 189 (2000). That is simply not a sufficient basis to allow the late filing.
Additionally, the sentence about which defendant complains is not illegal and is therefore not properly raised by PCR. State v. Acevedo, 205 N.J. 40, 47 (2011) (explaining that "contentions regarding consecutive sentences or the absence of reasons for imposition of the consecutive sentences do not relate to the issue of sentence 'legality' and are not cognizable on PCR"). Sentences that are allegedly excessive but not illegal cannot be reviewed by way of PCR and are ordinarily remediable only by way of direct appeal. See State v. Clark, 65 N.J. 426, 436-37 (1974); State v. Pierce, 115 N.J. Super. 346, 347 (App. Div.), certif. denied, 59 N.J. 362 (1971).
In addition, the PCR judge appropriately applied Rule 3:22-4(a) to defendant's claims. In pertinent part, that rule bars a petitioner from raising as grounds for relief issues that could have previously been raised on appeal except where "enforcement of the bar to preclude claims, including [those] for ineffective assistance of counsel, would result in fundamental injustice."
R. 3:22-4(a)(2). We perceive no fundamental injustice in this case.
Defendant submits that appellate counsel was ineffective for failing to raise on direct appeal that his sentence was illegal under Yarbough since the trial judge allegedly (1) double-counted aggravating factors; and (2) failed to state reasons on the record in connection with imposing consecutive sentences. A review of our opinions addressing defendant's prior PCR petitions discloses that these claims have already been raised. To the extent, they were not so raised, defendant cites to nothing besides his own "ignorance of the law" to justify the delay in raising them in one of his prior PCR petitions. The petition was appropriately denied.
Finally, defendant claims appellate counsel failed to raise as error his consecutive sentences in light of our decision in Copling. Copling was decided in 1999, more than twelve years after defendant's sentence. Appellate counsel's performance cannot be deficient under Strickland/Fritz*fn3 based on law that was not in effect at the time. See State v. Fisher, 156 N.J. 494, 501 (1998).
Accordingly, we find defendant's claims are barred pursuant to Rule 3:22-4(a) and Rule 3:22-12.