July 3, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHAWN PETERSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 99-06-1021, 99-06-1022, 99-06-1023, and 99-06-1024, 99-07-1183, and 99-07-1211.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 19, 2012
Before Judges Axelrad and Parrillo.
Defendant Shawn Peterson appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
In Hudson County alone in 1999, defendant was facing siX pending indictments charging him with a total of ten first- degree armed robberies and numerous related offenses. On October 7, 1999, he pled guilty to nine of these armed robberies and on November 16, 1999, received an aggregate fifteen-year term with an eighty-five percent period of parole ineligibility, No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to run concurrent with an eighteen-year term imposed in Bergen County for armed robberies defendant committed in that jurisdiction.*fn1 Defendant filed the instant PCR petition*fn2 on March 5, 2009, seeking to vacate the Hudson County sentence, nine years and four months after its imposition. In his petition, defendant claimed he was denied the effective assistance of counsel, who failed to file a motion to consolidate all the indictments from three counties, failed to file a Notice of Appeal, and failed to file a timely PCR petition. A hearing was held on October 22, 2009, at the conclusion of which the PCR court denied defendant's petition as both out-of-time, Rule 3:22-12(a), and substantively lacking in merit. As to the former, Judge Callahan found:
[Defendant] waited almost ten (10) years from his judgment of conviction to file; thus, he filed exactly four (4) years and four (4) months late. As [defendant] has waited an exceedingly long time to file his petition, and considering that over ten years has passed since his conviction, and approximately eleven (11) years since the crimes were committed, pursuant to R. 3:22-12(a), this Court cannot consider [defendant's] motion for PCR.
R. 3:22-12(a) permits a [defendant] to avoid application of the five (5) year time bar if the petition "alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." . . .
In the matter at bar, [defendant's] motion for PCR is more akin to the situation in [State v.] Goodwin [173 N.J. 583 (2002)] than the situation in [State v.] Norman [405 N.J. Super. 149 (App. Div. 2009)] as this [defendant] has failed to explain how his attorneys' decision not to file appeals and/or decline to represent him contributed to his extensive delay in filing his petition for post-conviction relief. Goodwin, [supra], 173 N.J. at 595.
In addition, upon consideration of the Norman/[State v.] Afanador [151 N.J. 41 (1997)] factors in determining whether excusable neglect exists, such factors weigh greatly against [defendant]. First, [defendant's] filing well exceeds the five (5) year time bar by four (4) years and four (4) month[s] and . . . [defendant] has not provided "compelling, extenuating circumstances" to justify such a delayed filing. Therefore, the extent of the delay is great. The second part of the first factor relates to the cause of the delay. [Defendant] contends that his delay is due to "excusable neglect" caused by ineffective assistance of counsel. [Defendant's] contention however, is without merit.
. . . In this case, no evidence has been provided to this Court showing that the attorney was retained to file for PCR. Consequently, this Court finds that the $5,000 paid to [the attorney] was a consultation fee and not a fee to cover the aforementioned lengthy tasks.
The second Norman/Afanador factor in considering "the prejudice to the state" also weighs greatly against [defendant]. It is clear that these crimes occurred over eleven (11) years ago and . . . the prejudice against the State in trying these armed robberies over 11 years later is clear. . . .
Finally, the third Norman/Afanador factor, "the import of the [defendant's] claim in determining whether there has been an 'injustice' sufficient to relax the time limits" is also not in favor of [defendant]. As explained above, [defendant] did not suffer an injustice, rather he is a [defendant] who sat on his rights until four (4) years and four (4) months after his conviction.
As noted, the PCR court found that defendant's PCR claims were not only procedurally barred, but without substantive merit. On this point, Judge Callahan concluded:
In the matter at bar, [defendant] alleges ineffective assistance of counsel of his attorneys at various stages including trial, appellate, and PCR counsel. [Defendant] first argues his trial/plea counsel . . . was ineffective because he did not move to join/consolidate the indictments from the various counties for trial. . . .
[A]lthough R. 3:25A-1 permits defendants to move to consolidate charges from different counties for resolution, such consolidation would not have affected the outcome as [defendant] received concurrent sentences. An attorney's failure [to move] for consolidation however, does not constitute ineffective assistance of counsel unless the defendant can show that a more favorable disposition would likely have resulted. State v. Rountree, 388 N.J. Super. 190, 213 (App. Div. 2006), certif. den[ied], 192 N.J. 66 (2007). [Defendant] has not and cannot show a more favorable disposition would likely have resulted because this Court sentenced [defendant] to serve fifteen (15) years to run concurrent to the eighteen (18) year sentence imposed by Bergen County
. . . In fact, based on the facts and circumstances known to [counsel] at that time, it would have been a frivolous motion as the plea agreement required that the Bergen and Hudson sentences run concurrent. As such, [defendant] would not have received a more favorable sentence.
Second, [defendant] asserts [his attorney] was ineffective because he did not file a notice of appeal upon [defendant's] request. However, [defendant's] assertion is unsupported by any facts or evidence.
Finally, [defendant] argues his privately retained PCR attorney . . . were ineffective because they did not file a notice of appeal or a motion for PCR on his behalf. . . . [E]ven if their acts had constituted "deficient performances" for not filing PCR motions, the second prong of Strickland [v. Washington, 466 U.S. 669, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] cannot be met. [Defendant] cannot, and did not show how [counsels'] performances prejudiced [defendant] because as discussed herein, [defendant's] PCR claims are meritless as the performances of the underlying trial attorneys were not ineffective and therefore, [defendant's] claim for PCR would be and is denied.
On appeal, defendant raises the following issues for our consideration:
I. It was Judicial Error to Deny the Motion for Post-Conviction Relief.
II. The Defendant is Entitled to a Remand to the Trial Court for an Evidentiary Hearing to Determine the Merits of his Contention that He was Denied the Effective Assistance Of Counsel.
III. The Defendant is Entitled to a Remand to the Trial Court for an Evidentiary Hearing to Determine the Merits of his Contention that He was Denied the Effective Assistance of Post-Conviction Relief Counsel.
IV. All Points Raised by Defendant-Appellant in Any and All Prior and Subsequent Submissions to the Court Are Incorporated by Reference into This Brief.
In addition, defendant pro se raises the following arguments:
I. Defendant is Entitled to Consolidation of All Charges Rel[ie]ving Him From Imposition of Extended Term Sentence Conclusion.
II. Defendant's Sentence is Excessive:
A. The Trial Court Erroneously And Improperly Balanced The Aggravating And Mitigating Factors
B. The Court Made Findings of Facts to Enhance The Sentence Conclusion
III. Passaic County Unduly Delayed In Indicting, Arraignment and Prosecution of the Defendant's Charges which [U]nfairly Advantaged [t]he State and Artificially Created a Prior Record Against the Defendant Resulting in the Imposition of an Extended Term Sentence Conclusion.
IV. Defendant was Denied Effective Assistance of Counsel in All Matters.
We have considered all these issues and find them of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). Accordingly, we affirm substantially for the reasons stated by Judge Callahan in his comprehensive and thoughtful written opinion of November 13, 2009.