June 29, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GERARD PASCALE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 96-02-0194.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 31, 2012
Before Judges Sapp-Peterson and Ostrer.
Defendant appeals from the trial court's November 17, 2010 order denying, without an evidentiary hearing, his November 16, 2009 petition for post-conviction relief from his 1997 conviction for first-degree murder and other charges. Judge James Den Uyl held that defendant's petition was time-barred, R. 3:22-12, and defendant failed to present a prima facie case of ineffective assistance of counsel warranting an evidentiary hearing or other relief. We affirm.
On August 2, 1995, defendant shot his former fiancee, Kathleen O'Conner in the back of the head, killing her. After being found competent to stand trial, defendant was tried before a jury in May 1997. Defendant did not dispute that he killed O'Conner. Instead, he relied on the defense that as a result of mental illness, he lacked the capacity to form the requisite knowing and purposeful state of mind that was an element of the offense. Defendant and the State presented competing experts on the issue.
At the conclusion of trial, defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1), first-degree felony murder, N.J.S.A. 2C:11-3a(3), second-degree burglary, N.J.S.A. 2C:18-2, second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a, and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. After appropriate mergers, the trial judge sentenced defendant on June 6, 1997 to an aggregate life term on the murder count, with a thirty-year period of parole ineligibility, concurrent with a five-year term on the third-degree weapon conviction, and consecutive to a ten-year term, with five years of parole ineligibility on the burglary conviction.
We affirmed the conviction in a decision issued October 4, 1999. State v. Pascale, No. A-0269-97 (App. Div. Oct. 4, 1999). We rejected without discussion, pursuant to Rule 2:11-3(e)(2), defendant's assertions, for the first time on appeal, that the court erred in allowing the State's expert to express certain opinions about defendant's account of the shooting, and in allowing certain arguments in opening and summation; but we remanded for the trial court to reconsider its decision to impose consecutive sentences. Id., slip op. at 2, 2-5. The Supreme Court denied certification. State v. Pascale, 163 N.J. 12 (2000). Thereafter, the trial court amended the judgment of conviction to provide a concurrent sentence on the burglary count.
On November 16, 2009, over twelve years after his original sentence, defendant filed his pro se petition for PCR, in which he argued no appeal was filed on his behalf, his attorney failed to notify him of his right to appeal and failed to file a notice of appeal, and the court should relax procedural bars to his petition. By order entered January 4, 2010, the Office of the Public Defender was assigned to represent defendant, and a case management conference was scheduled for April 2010. In a brief in support of defendant's petition, assigned counsel supplemented the grounds for relief by asserting ineffective assistance of appellate counsel in failing to confer with him regarding alleged trial errors, including alleged error in the court's instructions on diminished capacity.*fn1 The State responded in August 2010, and oral argument was heard by Judge Den Uyl on November 17, 2010.
In a thorough eighteen-page oral opinion, Judge Den Uyl denied the petition. He stated:
The Petition for Post Conviction Relief is time-barred under Rule 3:22-12 . . . . There is nothing in Petitioner's certification that alleges facts that touch on the issue of excusable neglect.
The Petitioner's brief and reply brief rely on the report and findings of diminished capacity defense expert witness Dr. Daniel Greenfield who interviewed the defendant in the Ocean County Jail on May 17, 1996, and issued a report dated September 3, 1996, with his findings. Even assuming his findings are correct, they do not address the issue of excusable neglect and pertain to the Petitioner's mental state pretrial 14 years ago and, as such, are so dated as to have no probative value on the issue of the mental state of the Petitioner for the time frame at issue here.
I also note that on March 11, 1997, 10 months after Dr. Greenfield examined the Petitioner on the issue of diminished capacity, psychiatrist Mahood Ghahramani, M.D. examined the Petitioner on the issue of competency to stand trial and opined in his report of April 3, 1997, that he had made significant improvement and was capable of standing trial. Although this report and finding are equally dated and have no probative value, these findings addressed the defendant's mental state in a context closely aligned with excusable neglect and are more recent and would negate the viability of extrapolating based on the findings of Dr. Greenfield one year earlier in 1996.
Judge Den Uyl went on to find defendant had failed to articulate facts that demonstrated a serious question about his guilt such that enforcement of the time bar would result in a fundamental injustice. He nonetheless addressed the merits of the petition. The judge noted the evidence was overwhelming that defendant caused the victim's death, the alleged failure of appellate counsel to confer was not per se ineffective, and, in any event, defendant failed to "demonstrate prejudice and how if these issues regarding jury instructions were raised, the result would have been different."
On appeal, defendant raises the following points:
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO BE PROTECTED FROM A TRIAL IN WHICH THE JURY WAS UNABLE TO FAIRLY ASSESS THE DEFENSE OF DIMINISHED CAPACITY WAS VIOLATED.
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE CONSEQUENCES THAT THE VIOLATION OF DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO HAVE THE JURY FAIRLY ASSESS THE DEFENSE OF DIMINISHED CAPACITY HAD ON THE INTEGRITY OF THE CRIMINAL JUSTICE SYSTEM, AND ON THE DEFENDANT'S RIGHT TO A FAIR TRIAL, WARRNTED THE RELAXATION OF R. THE 5 YEAR TIME BAR UNDER THE "INJUSTICE" CLAUSE OF R. 1:1-2.
SINCE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL, THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING.
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.
After considering the record and briefs, we affirm substantially for the reasons expressed by Judge Den Uyl in his well-reasoned oral opinion. We add the following brief comments.
Rule 3:22-12 provides in pertinent part:
[N]o petition [for post-conviction relief] 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.
In addition to establishing excusable neglect, a petitioner must also
demonstrate the reasonable probability that if the factual assertions
set forth in the petition "were found to be true, enforcement of the
time bar would result in fundamental injustice." Ibid.*fn2
The "fundamental injustice" requirement does not replace the
"excusable neglect" requirement; it supplements it. The Rule may not
be relaxed. R. 1:3-4(c). The deadline runs from the date of the
"judgment of conviction that is being challenged." R. 3:22-12(a); see
also State v. Milne, 178 N.J. 486, 494-95 (2004) (applying prior
The Rule is designed to promote finality. See, e.g., State v. Echols, 199 N.J. 344, 357 (2009); State v. Mitchell, 126 N.J. 565, 576 (1992) (discussing prior rule, noting limitation period for filing PCR is intended to "strongly encourage those believing they have grounds for post-conviction relief to bring their claims swiftly, and [to] discourage them from sitting on their rights until it is too late for a court to render justice."). The petitioner must offer more than a "bare allegation" to avoid the five-year procedural bar. Ibid.
Judge Den Uyl correctly observed the record is devoid of any cognizable evidence that would excuse defendant's failure to file his petition within the five year period. Defendant's pro se certification is silent on the reasons for delay, and includes no claim that defendant was so disabled by mental illness that he could not comply with the procedural requirements of the Rule. Dr. Greenfield's opinion of diminished capacity is, as Judge Den Uyl noted, dated and irrelevant to the issue. Presumably, defendant could have obtained his own medical and psychiatric records if they demonstrated a continuing disability relevant to the claim of excusable neglect. He did not.
Defendant's claim of fundamental injustice lacks sufficient merit to warrant further discussion. Rule 2:11-3(e)(2).