February 2, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DEMOTT W. HARRELL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 00-02-0218.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 13, 2011
Before Judges Cuff and St. John.
Defendant DeMott Harrell appeals from the Law Division's October 14, 2010 denial of his third petition for post-conviction relief (PCR) alleging ineffective assistance of trial counsel, appellate counsel, and PCR counsel. We affirm.
On November 8, 1999, in Middlesex County, defendant robbed a victim at knifepoint. On November 9, 1999, he robbed another individual at knifepoint in Somerset County. On that same day, he was arrested for the Middlesex County robbery. On February 24, 2000, defendant was indicted for the Middlesex County robbery. In or about the same month, defendant was indicted for the Somerset County robbery. On June 19, 2000, the Somerset County indictment was transferred to Middlesex County for disposition, and on July 24, 2000, pursuant to a negotiated plea agreement, defendant pled guilty to one count of armed robbery from each indictment.
On October 6, 2000, defendant was sentenced, pursuant to the plea agreement, to concurrent terms of nineteen years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant was given 333 days of jail credit. On defendant's appeal, we affirmed his sentence on March 13, 2002 (No. A-0268-01). The Supreme Court denied certification on June 11, 2002, State v. Harrell, 174 N.J. 40 (2002).
In August 2002, defendant filed his first PCR, which was denied. He asserted, among other things, ineffective assistance of trial counsel. Defendant appealed, and we affirmed. (A-1029-03). The Supreme Court denied certification on May 25, 2005, State v. Harrell, 183 N.J. 590 (2005).
In 2005, defendant filed a second PCR, which was denied on December 13, 2005. Defendant appealed, and we again upheld the denial of post-conviction relief. (A-4502-05). Defendant contends he filed for certification with the Supreme Court in 2006 and the Court denied his petition.*fn1
In 2010, defendant filed his third PCR, which was denied on October 14, 2010. The PCR judge determined that the petition was time-barred pursuant to Rule 3:22-12. It is from that order defendant appeals.
On appeal, defendant renews the argument that: (l) he established a prima facie case of ineffective assistance of trial counsel during plea negotiations; and (2) his appellate counsel and PCR counsel were ineffective in failing to protect his rights.
We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420-21 (2004) (citing Mickens- Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004)); Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Where no evidentiary hearing has been held, we "may exercise de novo review over the factual inferences drawn from the documentary record by the [PCR judge]." Id. at 421 (citing Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991)). Thus, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court[.]"
Ibid. Where no credibility determinations have been made, "we invoke our original jurisdiction in the review of th[e] matter." Ibid. Such a review is appropriate here as there was no evidentiary hearing and no credibility determinations were made.
This PCR application was filed ten 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. This rule was amended effective February 1, 2010 in several respects.*fn2
Paragraph (a)(1) was designated to apply to first petitions for relief making the defendant's excusable neglect exception subject to a reasonable probability of fundamental injustice test. Paragraph (a)(2) was designated for subsequent petitions, establishing a one year limitation from discovery of a factual predicate, Supreme Court ruling, or denial of application due to ineffective assistance of counsel. [Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 3:22-12 (2012).]
Rule 3:22-4(b) requires that a second or subsequent petition shall be dismissed unless:
(1) it is timely under R. 3:22-12(a)(2); and
(2) it alleges on its face either:
(A) that the petition relies on a new rule of constitutional law, made retroactive to defendant's petition by the United States Supreme Court or the Supreme Court of New Jersey, that was unavailable during the pendency of any prior proceedings; or
(B) that the factual predicate for the relief sought could not have been discovered earlier through the exercise of reasonable diligence, and the facts underlying the ground for relief, if proven and viewed in light of the evidence as a whole, would raise a reasonable probability that the relief sought would be granted; or
(C) that the petition alleges a prima facie case of ineffective assistance of counsel that represented the defendant on the first or subsequent application for post-conviction relief.
To establish an ineffective assistance of counsel claim, a defendant must satisfy a two-pronged test. First, he must show that counsel's performance "fell below an objective standard of reasonableness," such that he "was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Second, he must show that "there is a reasonable probability 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. Accord State v. Loftin, 191 N.J. 172, 197-98 (2007).
Defendant presents no facts to support even a prima facie contention of ineffective assistance of trial, appellate, or PCR counsel, his arguments are without merit and, as such, warrant little discussion. R. 2:11-3(e)(2). He does not identify any new rule of constitutional law or other facts that would excuse his failure to raise these issues on a timely basis. Therefore, defendant's petition is time-barred.