January 31, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DONALD CLAY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 96-12-0488.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 10, 2011 -
Before Judges Sapp-Peterson and Ostrer.
A jury convicted defendant of first-degree carjacking, N.J.S.A. 2C:15-2; first and second-degree robbery, N.J.S.A. 2C:15-1a(1) and (2); fourth-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-9; and third-degree escape, N.J.S.A. 2C:29-5. On November 16, 1998, the court imposed an aggregate custodial sentence of thirty years with a five-year period of parole ineligibility, to be served consecutive to a juvenile sentence for armed robbery that defendant was already serving. The conviction and sentence imposed were upheld on direct appeal. State v. Clay, No. A-2691-98 (App. Div. October 20, 2000). The Supreme Court denied defendant's petition for certification. State v. Clay, 167 N.J. 630 (2001). On October 21, 2008, nearly ten years after his conviction, defendant filed a pro se post-conviction relief (PCR) petition. On October 4, 2009, defendant supplemented his pro se petition with a certification and, the following month, submitted two additional certifications from Joyce Nadhir and Fern Davis.
In his certification, defendant stated that based upon his trial counsel's representation as to his maximum custodial exposure upon conviction, he rejected the plea offer extended to him in which the State would recommend a thirteen-year prison term with a five-year period of parole ineligibility if he pled guilty to carjacking and escape. Both Nadhir and Davis, in their certifications, indicated that pending his trial, defendant had many discussions with them during which he explained that his trial counsel advised him to reject the plea offer, since a conviction would not result in a jail term of more than fifteen years with a five-year period of parole ineligibility.
Judge John J. Coyle, Jr. conducted oral argument on the petition on February 5, 2010, and issued a written opinion on March 26, 2010, denying defendant's petition. Citing Rule 3:22-12(a), the judge found that defendant's petition was time-barred and that defendant failed to set forth any facts demonstrating excusable neglect or exceptional circumstances justifying a relaxation of the filing requirements of the rule. The present appeal followed.
On appeal, defendant raises the following points for our consideration:
DEFENDANT'S PETITION SHOULD NOT HAVE BEEN PROCEDURALLY BARRED UNDER RULE 3:22-12. POINT TWO
THE [PCR] COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
THE [PCR] COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL. POINT FOUR DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR [PCR] (NOT RAISED BELOW).
Rule 3:22-12 provides in pertinent part that no petition [for PCR] shall be filed pursuant to this rule more than 5 years after the date of entry pursuant to Rule 3:21-5 of the judgment of conviction that is being challenged unless it alleges facts showing that the delay beyond said time 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 of the time bar would result in a fundamental injustice.
The rule quoted above became effective February 2010, after the petition was filed but before oral argument was conducted. As amended, the rule makes it more difficult to obtain relief from the five-year time bar by adding a further requirement. In addition to establishing excusable neglect, a petitioner must also demonstrate the reasonable probability that if the actual assertions set forth in the petition "were found to be true, enforcement of the time bar would result in fundamental injustice." Ibid. Because a procedural rule is generally deemed applicable to actions pending on its effective date, State v. Reevey, 417 N.J. Super. 134, 148, n.2 (App. Div. 2010) (citations omitted), we have quoted the new rule. The trial court, however, decided defendant's petition under the former, excusable neglect standard. Nonetheless, "fundamental justice," as a factor in determining whether the five-year time bar should be relaxed, is not a new concept or consideration. See, e.g., State v. Williams, 309 N.J. 117, 121 (App. Div. 1998) (holding that enforcement of statutory time bar to post-conviction claims the petitioner failed to raise in prior proceedings would result in "fundamental injustice").
In contending that he is entitled to relief from the five-year procedural bar under this rule, defendant claims that his papers were lost in a fire at Northern State Prison, and it took years for him to reconstruct the record. He does not, however, indicate which papers were destroyed, why those particular papers were needed in order to file a timely petition, what efforts he undertook to secure replacement papers or to reconstruct the relevant record and when that was accomplished. As Judge Coyle observed, "[d]efendant did not attempt to file a petition and ask for extended time due to hardship, nor did he show any other inclination to make this petition until 2008." Therefore, the judge properly concluded that defendant failed to demonstrate excusable neglect or exceptional circumstances that would warrant relaxation of the time limits under the rule.
Additionally, a number of the allegations advanced in defendant's petition were raised and rejected on direct appeal.
Specifically, as to his contention the evidence did not support his conviction for carjacking and his claim that the sentence imposed was excessive, we concluded these contentions were without sufficient merit to warrant discussion in a written opinion. Clay, supra, A-2691-98, slip. op. at 11. Rule 3:22-5 provides: "A prior adjudication upon the merits of any ground for relief is conclusive[.]" Consequently, the prior disposition of these contentions precludes defendant from relitigating these claims in a subsequent PCR proceeding.
Finally, although not specifically addressed by the PCR judge, the record demonstrates it was highly unlikely that relaxation of the rule would result in defendant prevailing on his claim of ineffective assistance of counsel. A defendant's claim of ineffective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which have been adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). In order to obtain relief based upon a claim of ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient and that counsel's deficient performance prejudiced his defense. Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 692).
Here, the trial record shows that defendant was fully aware of his custodial exposure beyond fifteen years. Trial counsel, during argument on an evidentiary issue, stated to the court that his client was "facing 30 years." At sentencing, defendant did not tell the court that he elected to proceed to trial because his maximum custodial exposure was limited to fifteen years. Rather, he advised the court he went to trial with the hope that he would not receive the maximum sentence if convicted: "I didn't plan for everything to turn out like this, but I was just, you know, praying and hoping that I don't get the maximum time for, you know, something that I didn't intentionally plan on doing." Moreover, prior to defendant's conviction on the underlying charge, he was already serving a custodial term at Jamesburg arising out of a juvenile delinquency adjudication for armed robbery. Thus, there was no justification for any belief by defendant that any sentence imposed would be on the lower end of the range of sentences that could be imposed upon conviction. Consequently, enforcement of the time bar does not "result in a fundamental injustice" to defendant and there is no basis to relax the time constraints in the interest of justice. State v. Mitchell, 126 N.J. 565, 580 (1992).
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