October 10, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
MARK EVANS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 30, 2013
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 90-05-1562 and 90-06-1782.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael J. Confusione, Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
Before Judges Espinosa and Hoffman.
Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Defendant entered a guilty plea to two counts of first-degree robbery, N.J.S.A. 2C:15-1, pursuant to a plea agreement in which defendant stipulated he was subject to an extended term sentence pursuant to N.J.S.A. 2C:44-3(a). In 1991, he was sentenced to concurrent terms, an aggregate sentence of life imprisonment with a minimum parole ineligibility period of fifteen years. In his statement of reasons, the sentencing judge stated that the sentence was imposed "with the clear understanding that in the event the defendant was accepted into an in-patient drug treatment program after having served five years the sentence would be modified to one of probation conditioned upon his successful completion of the program." Defendant did not file a direct appeal from this conviction and sentence.
In 1995, defendant filed a motion to modify his sentence. His motion was granted and he was sentenced to two concurrent five-year terms of probation, with the condition that he successfully complete an in-patient drug program. In 1997, defendant was charged with a violation of probation for failing to remain drug-free. His probation was not revoked at that time. Probation was continued, again with the condition that he successfully complete a drug treatment program.
Defendant was charged with a second violation of probation in 2000, based upon his failure to report to his probation officer and convictions for possession of a controlled dangerous substance and robbery. The court revoked his probation and, pursuant to State v. Williams, 299 N.J.Super. 264 (App. Div. 1997), defendant was remanded to serve the balance of the sentence originally imposed. Defendant filed an appeal from this order but withdrew it prior to its disposition on the merits.
Defendant filed another motion to change custody so he could enter a drug treatment program pursuant to Rule 3:21-10(b)(1) in 2007. That was denied in December 2007. He filed another motion for change of custody in 2008, which was also denied. In addition, defendant filed a motion to withdraw the guilty plea he had entered in 1991. After reviewing defendant's motion in light of the factors set forth in State v. Slater, 198 N.J. 145, 157-58 (2009), the trial judge denied the motion and set forth his reasons in a written opinion.
In 2009, defendant filed a notice of appeal in which he only identified the order denying his motion to change custody. However, his brief also presented arguments regarding the denial of his motion to withdraw his guilty plea. Although the issue regarding the withdrawal of his guilty plea was not properly before us, we addressed both his appeal from the denial of his motion to change custody and his challenge to the denial of his motion to withdraw his guilty plea. In an unpublished opinion, State v. Evans, No. A-3430-08 (App. Div. Feb. 9, 2010), we affirmed the denial of his motion and stated that "there is no merit to his arguments" regarding the withdrawal of his guilty plea. Id. at n.2.
Defendant filed a PCR petition pro se in February 2010. He argued he received ineffective assistance of counsel because his attorney allowed him to plead guilty and made inadequate argument on his behalf at sentencing. Counsel was assigned to him and an amended petition and brief in support of his petition was filed. Defendant also filed a supplemental letter brief pro se. The PCR judge denied the petition, without an evidentiary hearing, in December 2011.
In this appeal, defendant presents the following arguments:
THE COURT SHOULD REVERSE THE DENIAL OF DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AND REMAND THIS MATTER FOR AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS.
1. DEFENDANT'S PETITION IS NOT BARRED.
2. DEFENDANT ESTABLISHED AT LEAST PRIMA FACIE EVIDENCE OF INEFFECTIVE ASSISTANCE OF COUNSEL.
3. AT THE VERY LEAST, DEFENDANT'S CLAIMS WARRANTED AN EVIDENTIARY HEARING IN THE COURT BELOW.
Defendant raises the following arguments in his pro se supplemental brief:
N.J.S.A. 2C:44-3a IS UNCONSTITUTIONAL TO THE EXTENT STATE V. DUNBAR REQUIRES A JUDGE TO FIND A FACTOR LEADING TO THE IMPOSITION OF DISCRETIONARY PERSISTENT OFFENDER EXTENDED TERM SENTENCE. U.S. CONST., AMENDS. V, VI. XIV; N.J. CONST. ART. 1 PAR. 1-10.
THE DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHT TO TRIAL BY JURY AS GUARANTEED UNDER THE SIXTH, FOURTEENTH AND THIRTEENTH AME[N]DMENTS, UNITED STATES CONSTITUTION, AND UNDER ARTICLE I, PARAGRAPH 8, 9, AND 10 OF THE NEW JERSEY CONSTITUTION (1947) BASED UPON THE IMPOSITION OF AN ILLEGAL EXTENDED TERM SENTENCE PURSUANT TO ([N.J.S.A.] 2C:44-3(A), PERSISTENT OFFENDER ACT.
Because this is defendant's first PCR petition, it is governed by Rule 3:22-12(a)(1), which provides:
[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 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 we have noted, the initial judgment of conviction was entered in 1991 and the judgment of conviction that followed the revocation of defendant's probation was entered in 2000. Therefore, the petition here was clearly filed well beyond the five-year period required by the rule.
Defendant seeks to avert the five-year time limit for the filing of his petition by arguing that his decade-long failure to file his petition was due to excusable neglect. "The concept of 'excusable neglect' encompasses more than simply providing a plausible explanation for a failure to file a timely PCR petition." State v. Norman, 405 N.J.Super. 149, 159 (App. Div. 2009). To be entitled to a relaxation of the rule based upon excusable neglect, the petitioner must "allege facts demonstrating that the delay was due to the defendant's excusable neglect" and, "[i]f the petitioner does not allege sufficient facts, the Rule bars the claim." State v. Mitchell, 126 N.J. 565, 576 (1992).
Defendant contends that much of the delay was caused by "the complex, multi-tiered litigation that had taken place in both Camden and Atlantic Counties." This argument does not constitute facts that support a claim of excusable neglect.
In addition, defendant argues that his petition is reviewable because "enforcement of the time bar would result in a fundamental injustice." R. 3:22-12(a)(1).
In defining fundamental injustice, the courts will look to whether the judicial system has provided the defendant with fair proceedings leading to a just outcome. "Fundamental injustice" will be found if the prosecution or the judiciary abused the process under which the defendant was convicted or, absent conscious abuse, if inadvertent errors mistakenly impacted a determination of guilt or otherwise "wrought a miscarriage of justice for the individual defendant." The standard goes beyond constitutional infringements to any circumstances deemed "unjust." Although a petitioner would not have to prove that the issue of concern cost him the case, "to establish injustice there should at least be some showing that . . . [the alleged violation] played a role in the determination of guilt. ... To conclude otherwise would exalt form over substance."
[State V. Martini, 187 N.J. 469, 481-82 (2006) (quoting State v. Mitchell, 126 N.J. 565, 587 (1992) (alterations in original) (citations omitted)).]
Defendant has failed to show that the deficiencies he alleges now played a role in the determination of his guilt. Because his petition falls short of showing that enforcement of the time bar will result in a fundamental injustice, it is procedurally barred.