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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...