September 5, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
CORDELL HARPER, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 23, 2013
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 02-02-0446.
Joseph E. Krakora, Public Defender, attorney for appellant (Evelyn F. Garcia, Designated Counsel, on the brief).
James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Assistant Prosecutor, of counsel and on the brief).
Before Judges Lihotz and Ostrer.
Defendant appeals from the denial of his petition for post-conviction (PCR) relief. We affirm.
On February 28, 2002, defendant was indicted on counts of murder, N.J.S.A. 2C:11-3(a)(1)(2), possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), and unlawful possession of a weapon, N.J.S.A. 2C:39-5(d), arising from the December 31, 2001, killing of Helen Croudy. At the conclusion of a Mirandahearing on May 27, 2003, the court denied defendant's motion to suppress his confession, and defendant entered an open plea to the charges.
After merging the weapons charges, the court sentenced defendant on June 20, 2003, to fifty years on the murder charge subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appealed his sentence, and we affirmed. State v. Harper, No. A-6200-02 (App. Div. Jan. 8, 2004).
Almost seven years later,  defendant filed a pro se petition for PCR, claiming ineffective assistance of counsel because his trial attorney: incorrectly informed him that he had no right to appeal, and therefore no appeals were ever filed; failed to adequately investigate the circumstances surrounding the case; failed to advise him of his ability to negotiate the plea offered by the State; failed to explore a passion/provocation defense; failed to inform him of the consequences of an open plea, with defendant incorrectly assuming he would be sentenced to no more than thirty years; and failed to explain that his sentence would be subject to a period of parole ineligibility under NERA. Defendant was subsequently assigned PCR counsel, and argument was heard on March 31, 2011. On May 6, 2011, Judge Charles Middlesworth, Jr. denied the petition in a cogent written opinion, finding it was time-barred and lacked merit.
In the present appeal, defendant contends:
POINT I: THE POST-CONVICTION RELIEF COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT AN EVIDENTIARY HEARING BECAUSE DEFENDANT CLEARLY ESTABLISHED A PRIMA FACIE CASE THAT HIS TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL.
A. Defendant Established A Prima Facie [Case] Of Ineffective Assistance Because Counsel Permitted Defendant To Plead To An Open Indictment Without Adequate Counsel.
B. Counsel Failed to Advise Defendant Of His Right To Appeal And His Right To Petition For Post-Conviction Relief.
C. The Post-Conviction Relief Court Abused Its Discretion In Applying The Time Bar Pursuant to R. 3:22-12(a)(1).
POINT II: POST-CONVICTION RELIEF COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT III: COUNSELS' CUMULATIVE ERRORS RESULTED IN A MANIFEST INJUSTICE.
We reject these arguments.
Under Rule 3:22-12(a)(1), a first petition for PCR must be filed no more than five years after entry of the judgment of conviction "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." As the Supreme Court has explained:
There are good reasons for such a Rule. 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 serves to respect the need for achieving finality of judgments and to allay the uncertainty associated with an unlimited possibility of relitigation.
State v. Mitchell
126 N.J. 565
Defendant filed his petition out of time, nearly seven years after entry of the June 20, 2003 judgment of conviction, and he has shown no excusable neglect or exceptional circumstances warranting relaxation of the time bar. Defendant claims excusable neglect because he was unaware of the time-frame for filing. However, "[i]gnorance of the law and rules of court does not qualify as excusable neglect." State v. Merola, 365 N.J.Super. 203, 218 (Law Div. 2002), aff'd, 365 N.J.Super. 82 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). See also State v. Dillard, 208 N.J.Super. 722, 728 (App. Div.) ("it is likely that if we ruled that unfamiliarity with the five-year rule could be considered excusable neglect under R. 3:22-12 defendants would not be diffident about asserting their ignorance of the rule"), certif. denied, 105 N.J. 527 (1986). Moreover, enforcement of the time bar would not result in a fundamental injustice.
"To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of succeeding under the test set forth in" Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v. Goodwin, 173 N.J. 583, 596 (2002). First, defendant must prove that counsel's performance was deficient in that it "fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 690, 104 S.Ct. at 2064, 2066, 80 L.Ed.2d at 693, 695. Second, he must prove 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. Fritz, 105 N.J. 42, 58 (1987). "When a defendant has entered into a plea agreement, a deficiency is prejudicial if there is a reasonable probability that, but for counsel's errors, the defendant would . . . have decided to forego the plea agreement and would have gone to trial." State v. McDonald, 211 N.J. 4, 30 (2012). Accord State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009); State v. Maldon, 422 N.J.Super. 475, 482 (App. Div. 2011).
In evaluating a claim of ineffective assistance of counsel, "[j]udicial scrutiny of counsel's performance must be highly deferential." Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. Accord State v. DiFrisco, 174 N.J. 195, 220-21 (2002); State v. Martini, 160 N.J. 248, 266 (1999). "Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694.
Having reviewed the record, we agree with the trial court that defendant did not establish a prima facie case of ineffective assistance of counsel at plea or sentencing, and we further conclude that defendant made no such showing with respect to PCR counsel. Therefore, there is no need to remand for an evidentiary hearing, as defendant requests.
In terms of the plea, defendant made a reasonable and well-informed decision to plead guilty and not attempt a passion/provocation defense at trial. R. 3:9-2. The record reflects that defendant gave multiple versions of events to the police and other individuals before he ultimately confessed that, in Atlantic City on New Year's Eve 2001, he bludgeoned his sixteen-year-old, pregnant girlfriend with a hammer and a brick, and then dragged her body to the end of a jetty where he left her to die from blunt force trauma and submersion in the ocean water. In his statement to the police, defendant claimed the victim attacked him. However, as the prosecutor explained at sentencing, witnesses were prepared to testify to defendant's pre-designed plan to commit the murder because he wanted to pursue a relationship with another woman and did not want to pay child support.
Moreover, notwithstanding defendant's arguments on appeal, the record supports a finding that he was advised of the consequences of his open plea, including that his sentence could range from thirty years to life imprisonment, and that his sentence would be subject to NERA's eighty-five percent period of parole ineligibility. In fact, defendant wrote a letter to the court requesting that his sentence be "the minimum of 30 years."
Also contrary to defendant's argument on PCR, the record reflects that he was advised of his right to appeal. And, in fact, he filed an appeal of his sentence which we denied, recognizing that the sentence was not an abuse of discretion. He may not re-litigate the fairness of his sentence. R. 3:22-5.
The record also supports a finding of effective counsel at sentencing. Specifically, the court received: the pre-sentence report, which included statements from defendant and his mother; both written and oral argument from defense counsel, requesting imposition of a minimum sentence; both written and oral statements from defendant; and oral statements from defendant's supporters. The court was thus made aware of all of the factors about which defendant expresses concern, including his relative youth at the time of the crime, his lack of any prior criminal history, and his supportive upbringing and employment. Cf. State v. Hess, 207 N.J. 123, 147-55 (2011) (counsel ineffective at sentencing by failing to present mitigating evidence or argue for mitigating factors). Nevertheless, the court was convinced that the aggravating factors — the nature and circumstances of the offense, including that it was committed in an especially heinous, cruel, or depraved manner; the risk that defendant would commit another offense; and the need to deter defendant and others from violating the law — outweighed the mitigating factors, thus warranting a sentence above the minimum.
Finally, with respect to PCR counsel, defendant cites no arguments that counsel failed to make on his behalf, and thus he has not shown a prima facie case of ineffectiveness.