September 28, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARTIN CARLUCCIO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 98-05-0953.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 29, 2011
Before Judges Alvarez and Nugent.
Defendant Martin Carluccio appeals from the June 19, 2009 denial of his application for post-conviction relief (PCR). For the reasons that follow, we affirm.
On October 2, 1998, defendant was sentenced, pursuant to a negotiated plea agreement, on a third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2), to a five-year probationary term with conditions. In establishing the factual basis for the guilty plea, defendant admitted that, while using a compound bow, he shot an aluminum arrow through the window of his former girlfriend's house. Due to probation violations, the sentence was ultimately converted to a three-year state prison term. No direct appeal was taken from the conviction.
On April 15 and June 13, 2008, nearly ten years after the initial sentence, defendant filed two petitions for PCR, one counseled and the other pro se. For reasons not clear from the record, only the uncounseled PCR petition appears to have been considered; it was denied on June 30, 2008. Defendant subsequently appealed, the denial was reversed, and the matter remanded so that defendant's application could be referred for representation to the Office of the Public Defender, Post-Conviction Relief Unit. On July 7, 2009, defendant's third application, made on the remand with the assistance of counsel, was denied as time-barred. Defendant now appeals.
Defendant's contentions are:
POINT ONE THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF ON PROCEDURAL GROUNDS POINT TWO DEFENDANT'S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE TO DEFENDANT POINT THREE THERE WAS NOT A SUFFICIENT FACTUAL BASIS FOR DEFENDANT'S PLEA TO THE CRIME OF AGGRAVATED ASSAULT Where a PCR petition is premised on the ineffective assistance of counsel, New Jersey courts are guided by the two-part Strickland/Fritz framework:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. [Strickland v. Washington,*fn1 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).]
The second prong of this test is satisfied by a showing that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. In the case of a defendant who enters a guilty plea, he or she must also demonstrate a reasonable probability that, but for counsel's errors, no plea would have been entered and "he [or she] . . . would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985).
Post-conviction relief constitutes "New Jersey's analogue to the federal writ of habeus corpus." State v. Preciose, 129 N.J. 451, 459 (1992). A defendant making a prima facie showing of entitlement to such relief, that is, "demonstrat[ing] a reasonable likelihood that his or her claim will ultimately succeed on the merits[,]" is generally entitled to an evidentiary hearing. State v. Marshall, 148 N.J. 89, 158 (1997) (citing Preciose, 129 N.J. at 463), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). Absent such a showing, however, no evidentiary hearing is required. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
In his first point, defendant argues that the trial court erred in concluding that his petition was time-barred. Rule 3:22-12 states that no PCR "petition shall be filed . . . more than five years after . . . entry . . . of the judgment . . . unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." The excusable neglect here is asserted to be defendant's lack of knowledge that he had the right to file such a petition and/or that the attorney he hired in 2008 did not follow through on a PCR application in his behalf, and was thereby negligent. Defendant does not explain why hiring an attorney eight years after the fact excuses him from the rule-bar.
Mere lack of knowledge of the existence of time limits does not exempt a defendant from the rule's proscription. See State v. Moran, 202 N.J. 311, 320 (2010); State v. Dugan, 289 N.J. Super. 15, 22 (App. Div.), certif. denied, 145 N.J. 373 (1996). Because we agree with the motion judge that defendant does not proffer facts legally supporting his claim of excusable neglect, we also agree that he has not established circumstances which warrant relaxation of the five-year time bar. Defendant's situation does not equate to exceptional circumstances. See State v. Afanador, 151 N.J. 41, 52 (1997).
The analysis in Cummings is instructive. In that case, the defendant's petition was filed nearly ten years after the judgment of conviction. 321 N.J. Super. at 165. The defendant contended the delay was attributable to his illiteracy and his lack of understanding that he had the option to seek "post-conviction relief." Id. at 166. But these "conclusory statement[s]" did not equate to excusable neglect. Id. at 166.
Defendant's alleged excusable neglect in this case is precisely the same as Cummings. He claims he did not know he had the right to file such a petition, and that the attorney he hired in 2008 failed to follow through on a PCR application on his behalf. Even if we accept defendant's assertion that his attorney in 2008 failed to properly pursue the matter, the eight-year delay before contacting counsel in the first instance is left unexplained and is unexcused.
To reiterate, as stated in Cummings, mere lack of knowledge of the existence of the right to file this petition does not constitute excusable neglect. 321 N.J. Super. at 166; Moran, supra, 202 N.J. at 320; Dugan, supra, 289 N.J. Super. at 22. Hence the PCR judge did not commit error in rejecting defendant's petition because of the five-year time bar. See e.g., State v. DeFrisco, 187 N.J. 156, 166-67 (2006), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).
The insufficiency of defendant's assertion of excusable neglect stands in stark contrast with the prejudice that would inure to the State if it were required to try the charges many years after the imposition of defendant's October 2, 1998 sentence. See State v. Murray, 162 N.J. 240, 249 (2000) (observing the public policy behind the five-year time bar includes passage of time increasing "the difficulties associated with a fair and accurate reassessment of the events," the societal need for finality in judgments, and the need to incur prompt filing before "it is too late for a court to render justice") (internal citations omitted).
Defendant makes two additional points, encompassed in his second point heading, not argued before the judge who decided the PCR motion. We nonetheless choose to briefly comment upon them. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). First, defendant avers that trial counsel did not provide him effective assistance because he failed to investigate whether the shooting occurred when the house was occupied. Without comment on whether this constitutes a meritorious defense, we merely note that defendant has provided nothing but his bare assertion that counsel did not investigate and that the house was unoccupied. It is well-established that bare assertions are insufficient for PCR relief. See Cummings, supra, 321 N.J. Super. at 164.
Second, defendant contends that the factual basis he established when
he entered his guilty plea was insufficient for the crime of attempt
to commit aggravated assault and that accordingly he should be
permitted to withdraw his guilty plea. Defendant is not making an
actual claim of innocence, but points out that no details were
elicited regarding whether anyone was home when he shot an arrow
through the window. This does not satisfy the requirements of State v.
Slater, 198 N.J. 145
(2009). In order to succeed in setting aside a guilty plea, among
other things, a defendant must affirmatively raise a "colorable claim
of innocence." Id. at 158. That has not occurred here. The fact that
defendant did not specifically state that anyone was in the house at
the time of the shooting is not the equivalent of a claim of
innocence. Accordingly, we affirm.