September 12, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIAM MENTER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 94-10-1390.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 25, 2012
Before Judges Cuff and St. John.
Defendant William Menter appeals from the July 15, 2010 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm the denial of his petition substantially for the reasons set forth by Judge Venable in her written opinion filed on July 15, 2010.
In pre-trial proceedings, defendant filed a motion to dismiss certain counts of his indictment. First, defendant argued the grand jury was presented with inadequate evidence to support the counts against him. Second, defendant asserted that the evidence submitted was deficient in that it was hearsay. Third, defendant maintained that the prosecutor presented the charges to the grand jury in such a way that the panel unreasonably "deferred to the prosecutor's judgment." Finally, defendant moved to strike two of the aggravating factors the State intended to prove at the penalty phase of trial in order to support a sentence of death.*fn1
The court denied defendant's motion to strike aggravating factor three (attempted aggravated sexual assault).*fn2 However, the court restricted the State to the theory that defendant intended to, and did in fact, cause Latisha Roberts extreme mental suffering by killing her family. In a published opinion, the motion judge, subject to the restriction, denied defendant's motion. State v. Menter, 293 N.J. Super. 330 (Law Div. 1995).
Defendant then entered a plea of guilty. In exchange for defendant's plea, the State agreed to withdraw the aggravating factors and not seek the death penalty on the three counts of capital murder. The State further agreed to recommend that a life sentence with thirty years of parole ineligibility be imposed on defendant for each murder count. Additionally, the State agreed to recommend that a sentence of twenty years with ten years of parole ineligibility be imposed on defendant for the attempted murder count. However, the State reserved the right to recommend that the sentences imposed for each of the murder counts and the attempted murder count run consecutively to each other. Lastly, the State agreed to dismiss some of the remaining counts of the indictment.
Defendant entered a guilty plea for three counts of murder, contrary to the provisions of N.J.S.A. 2C:11-3(a)(1); one count of attempted murder, a crime of the first-degree, contrary to the provisions of N.J.S.A. 2C:11-3; one count of aggravated assault, a crime of the second-degree, contrary to the provisions of N.J.S.A. 2C:12-1(b)(1); one count of aggravated assault, a crime of the third-degree, contrary to the provisions of N.J.S.A. 2C:12-1(b)(2); one count of possession of a weapon for an unlawful purpose, a crime of the third-degree, contrary to the provisions of N.J.S.A. 2C:39-4(d); and one count of unlawful possession of a weapon, a crime of the fourth-degree, contrary to the provisions of N.J.S.A. 2C:39-5(d).
On April 18, 1996, defendant was sentenced on the first murder count to State prison for a term of life imprisonment with thirty years of parole ineligibility; on the second murder count to a consecutive term of life imprisonment with thirty years of parole ineligibility; and on the third murder count to a consecutive term of life imprisonment with thirty years of parole ineligibility. Additionally, a term of twenty years with ten years of parole ineligibility was imposed on the attempted murder count consecutive to the murder sentences. A concurrent term of five years was imposed on the possession of a weapon for an unlawful purpose count and a concurrent term of eighteen months was imposed on the unlawful possession of a weapon count. The remaining counts of the indictment were either dismissed or merged. The aggregate sentence imposed on defendant was three life terms with ninety years of parole ineligibility, plus a twenty-year term with ten years of parole ineligibility.
Defendant's conviction stemmed from the murder of three members of the Roberts family and the attempted murder of a fourth member, at their home in Jersey City. In his allocution, when he set forth the factual basis for his plea of guilty, defendant admitted using a box cutter to slash the throats of all four victims numerous times. He admitted that his purpose in doing so was to cause the death of each victim. He also admitted going to the Roberts' home "to do bodily harm to the Roberts family."
Defendant filed a notice of appeal limited to sentencing issues. The matter was listed on our excessive sentence oral argument (ESOA) calendar for July 21, 1999. After oral argument, we denied defendant's request for a reduction in the custodial sentences imposed.
Defendant filed a PCR petition on January 14, 2010, which was denied.
Defendant appeals from the denial of his PCR petition, and raises the following issues for our consideration:
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE IMPROPRIETY OF HAVING THE DEFENDANT'S DRUG-INDUCED PROGRAMMED GUILTY PLEA ACCEPTED WARRANTED RELAXATION OF THE 5 YEAR TIME BAR UNDER THE "EXCUSABLE NEGLECT" EXCEPTION OF RULE 3:22-12 AND UNDER THE "INJUSTICE" CLAUSE OF RULE 1:1-2.
THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING THE DEFENDANT'S PETITION BECAUSE TRIAL COUNSEL'S FAILURE TO INFORM THE DEFENDANT OF THE RESULTS OF DR. GOLDSTEIN'S EVALUATION AND TO DISCUSS WITH HIM A POSSIBLE DEFENSE OF DIMINISHED CAPACITY, AND TRIAL COUNSEL'S DEFICIENT PERFORMANCE AT SENTENCING, SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL.
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.
A. DEFENDANT'S FAILURE TO RECEIVE THE COURT ORDERED BILL OF PARTICULARS VIOLATED DEFENDANT'S DUE PROCESS RIGHT TO A FAIR TRIAL.
B. TRIAL COUNSEL'S USE OF PRIVILEGED MEDICAL INFORMATION FAVORABLE TO THE DEFENSE TO EXPEDITE A PLEA VIOLATED DEFENDANT'S DUE PROCESS RIGHT TO A FAIR TRIAL.
C. APPELLATE COUNSEL WAS INEFFECTIVE.
D. THE DEFENDANT'S PLEA SHOULD BE SET ASIDE.
Rule 3:22-12 provides that, with the exception of a petition to correct an illegal sentence, "[n]o . petition 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." In this case, defendant alleges "excusable neglect" resulting from the circumstances surrounding his plea allocution. Defendant asserts that he ". . . was sedated and on Prozac when the plea colloquy occurred." Defendant also claims "that the [plea] hearing was a drug-sedated programmed manipulated proceeding." Defendant offers no proof supporting this assertion. Defendant also offers no facts supporting excusable neglect for the five-year period after his sentencing.
In the context of post-conviction relief, a court should only relax the bar of Rule 3:22-12 under exceptional circumstances. "The court should consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an 'injustice' sufficient to relax the time limits." Mitchell, supra, 126 N.J. at 580. "Absent compelling, extenuating circumstances, the burden of justifying a petition filed after the five-year period will increase with the extent of the delay." Ibid. As time passes, justice becomes more elusive while the necessity for preserving finality and certainty of judgments increases. Id. at 576. See also State v. D.D.M., 140 N.J. 83 (1995) (holding seven and eleven year delays in filing PCR sentencing claims excessive absent compelling circumstances); State v. McQuaid, 147 N.J. 464,497 (1997) (holding that defendant's request for PCR seven years after guilty plea from which defendant gained substantial benefit does not demonstrate manifest injustice pursuant to Rule 3:21-1).
Defense counsel argues that defendant should be exempt from the time requirement of Rule 3:22-12 because of his psychological treatment during the criminal proceedings.
However, no specific facts have been adduced with regard to defendant's mental state to show that his psychological treatment would have prevented him from entering his plea of guilty, or prevented him from pursuing all his rights and remedies either on appeal or within the five years provided by the PCR statute.
Our Supreme Court has observed that:
As time passes after conviction, the difficulties associated with a fair and accurate reassessment of the critical events multiply. Achieving "justice" years after the fact may be more an illusory temptation than a plausibly attainable goal when memories have dimmed, witnesses have died or disappeared, and evidence is lost or unattainable . . . . Moreover, the Rule [3:22-12] serves to respect the need for achieving finality of judgments and to allay the uncertainty associated with an unlimited possibility of relitigation. The Rule therefore strongly encourages those believing they have grounds for post-conviction relief to bring their claims swiftly, and discourages them from sitting on their rights until it is too late for a court to render justice.
In the context of post-conviction relief, a court should relax Rule 3:22-12's bar only under exceptional circumstances . . . . Absent compelling, extenuating circumstances, the burden of justifying a petition filed after the five-year period will increase with the extent of the delay. [Mitchell, supra, 126 N.J. at 575-76, 580.]
After over thirteen years, considering the "increased burden" of justifying the grant of post-conviction relief, defendant has not presented the compelling and extenuating circumstances necessary to demonstrate excusable neglect for the delay in filing his PCR petition.
In her comprehensive written opinion, the PCR judge determined that "[e]ven if the Court were to relax the time bar and review this matter on the merits, the relief requested by petitioner would be denied." We agree and find defendant's contentions to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).
We add the following comments. Defendant asserts that his counsel was deficient because counsel failed to advise him of the results of Dr. Goldstein's evaluation, which he contends could have formed the basis of a diminished capacity defense or formed the basis of a mitigating factor at sentencing. Dr. Goldstein's evaluation was considered by the sentencing judge and was part of defendant's pre-sentence report. Additionally, the report states that defendant's "emotions over-rode both his cognitive abilities as well as his sense of control and his actions represent spontaneous, affective acting out rather than a calm, controlled decision." However, defendant's actions and plea allocution contradict this opinion. Defendant went to the Roberts home armed with a weapon, with the intent, as he stated, "to do bodily harm to the Roberts family."