September 26, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TAMEEK T. AVERY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-05-1779.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 14, 2011
Before Judges Axelrad and Sapp-Peterson.
Defendant Tameek Avery appeals from the Law Division's April 9, 2010 denial of his second petition for post-conviction relief (PCR) alleging ineffective assistance of trial counsel and request for an evidentiary hearing. We affirm.
The record reflects that defendant was convicted by a jury in 1997 of first-degree aggravated manslaughter, a lesser-included offense of murder (count one); first-degree felony murder (count two); first-degree robbery (counts three, six and seven); third-degree unlawful possession of a weapon (count four); and second-degree possession of a weapon for an unlawful purpose (counts five and nine).*fn1 After merging counts one, three, and five with count two, Judge Codey sentenced defendant to a term of life with a thirty-year period of parole ineligibility. Then, after merging count nine with counts six and seven, the court imposed a twenty-year term of imprisonment with a ten-year term of parole ineligibility on count six. The court imposed the same sentence on count seven and made the sentences on counts six and seven concurrent with each another but consecutive to the sentence imposed on count two, which involved another victim. On count four, the court imposed a five-year period of imprisonment to run concurrent to count two.
We affirmed defendant's conviction and sentence in an unreported opinion. State v. Avery, No. A-6053-96T4 (App. Div. June 11, 1998). The Supreme Court denied certification. State v. Avery, 156 N.J. 411 (1998).
By order and written opinion of December 8, 2000, Judge Codey denied defendant's first PCR petition that alleged the court's erroneous identification and felony-murder charges violated his due process right to a fair trial and challenged his sentence as illegal. We affirmed in an unreported opinion. State v. Avery, No. A-2576-00T2 (App. Div. Oct. 17, 2002). The Supreme Court denied certification. State v. Avery, 178 N.J. 375 (2003).
On or about December 28, 2010, defendant filed a second PCR asserting ineffective assistance of trial counsel in failing to inform him during the pre-trial conferences that he was facing consecutive sentences if he lost and failure of the trial judge to do the same during plea cut-off. By letter of April 9, 2010, Judge Codey denied defendant's petition as procedurally barred and without merit. This appeal ensued.
On appeal, defendant renews the arguments that: (l) he established a prima facie case of ineffective assistance of trial counsel during plea negotiations and error by the court in not informing him of the potential sentence exposure warranting an evidentiary hearing under State v. Preciose, 129 N.J. 451, 462-63 (l992); (2) he provided sufficient evidence of "excusable neglect" to warrant relaxation of the five-year time-bar of Rule 3:22-12; and (3) he asserted a serious constitutional violation constituting an exception to the procedural bar of Rule 3:22-4 as a claim that could have been, but was not, raised on direct appeal or in his first PCR. Defendant also argues, for the first time, that his first PCR counsel was ineffective in failing to raise the issue of insufficient plea consultation.
Defendant's arguments are without merit and, as such, warrant little discussion. R. 2:11-3(e)(2). This PCR application was filed thirteen years after the judgment of conviction, far outside of the five-year period for first PCR petitions, see R. 3:22-12(a)(1), and not within one year of any of the circumstances set forth in Rule 3:22-12(a)(2) pertaining to second or subsequent PCR petitions. Defendant has not presented any justifiable reason, let alone established excusable neglect, for his significant delay in asserting his insufficient plea consultation claim. See State v. Afanador, 151 N.J. 41, 52 (1997) (holding that only exceptional circumstances will permit relief from the procedural bar and the court must consider prejudice to the State, the importance of petitioner's claim, and the extent of, and the reason for, the delay).
On direct appeal, defendant unsuccessfully challenged, as an abuse of discretion, the court's imposition of consecutive sentences. It is clear defendant could have, but did not, assert the current claim in his direct appeal or in his first PCR. Accordingly, defendant is procedurally barred by Rule 3:22-4(a) from raising it thirteen years after his conviction.
Moreover, defendant has failed to demonstrate that enforcement of the procedural bar would result in a fundamental injustice warranting relief within the intendment of Rule 3:22-4(a)(2). Defendant's current claim that he would have taken the State's plea offer of thirty years imprisonment with thirty years of parole ineligibility if he had known he was facing multiple consecutive sentences is a baseless, self-serving allegation with no factual support in the record. Defendant never raised this issue to trial counsel, the trial court, on direct appeal to us, or on certification to the Supreme Court. Furthermore, defendant did not raise this issue in his first PCR petition in which he also filed his own pro se brief, which undermines his newly-minted claim that PCR counsel was ineffective in not advancing this argument. Nor did defendant raise this issue to us in his appeal of the denial of his first PCR petition or to the Supreme Court in his petition for certification.
In addition, defendant provides no details as to the dates, circumstances, or content of the discussions he and trial counsel had regarding the proposed plea or any plausible explanation of why defendant waited over a decade to bring what he deems to be a claim of such constitutional magnitude to the court's attention. Accordingly, defendant's claims of ineffective assistance of counsel and court error fail both procedurally and substantively.