State of New Jersey v. Dana Tokley

• Court: New Jersey Superior Court Appellate Division
• Decided: November 22, 2023
• Docket: A-2975-21
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2975-21

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANA TOKLEY,

Defendant-Appellant. _______________________

Submitted October 31, 2023 – Decided November 22, 2023

Before Judges Whipple, Mayer and Paganelli.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 99-01-0246.

Dana Tokley, appellant pro se.

Grace C. MacAulay, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Dana Tokley appeals from an April 28, 2022 order denying his

third petition for post-conviction relief (PCR). We affirm. The facts leading to defendant's conviction for robbery and possession of

a weapon for an unlawful purpose are detailed in our decision affirming the

conviction. See State v. Tokley, No. A-4725-99 (App. Div. Oct. 4, 2002). The

New Jersey Supreme Court denied defendant's petition for certification. State

v. Tokley, 176 N.J. 270 (2003).

Defendant filed his first PCR petition in 2003. After conducting a three-

day evidentiary hearing, the PCR judge entered an August 8, 2006 order denying

the petition. Defendant appealed, and we affirmed the denial of defendant's PCR

petition. State v. Tokley, No. A-6536-05 (App. Div. Jan. 2, 2009). Defendant

filed a petition for certification, which the Supreme Court denied. State v.

Tokley, 199 N.J. 133 (2009).

In 2014, defendant filed a motion for a new trial based on newly

discovered evidence. The judge denied the motion, finding the purported new

evidence would not have changed the jury's verdict. We affirmed the denial of

defendant's motion for a new trial. State v. Tokley, No. A-4482-14 (App. Div.

Mar. 20, 2017). The Supreme Court denied defendant's petition for certification.

State v. Tokley, 230 N.J. 616 (2017).

In August 2018, defendant filed a second PCR petition, alleging

ineffective assistance of counsel and asserting newly discovered evidence. The

A-2975-21 2 PCR judge denied this petition as time barred. The judge also concluded the

petition was "facially without merit." Defendant did not appeal from the denial

of his second PCR petition.

Defendant filed a third PCR petition on November 11, 2019. However,

the petition was denied as deficient.

On April 20, 2022, defendant filed an amended third PCR petition, raising

the same issues asserted in his 2019 petition. In the amended third petition,

defendant claimed "[n]ewly discovered evidence reveal[ed] [he] was never

booked or arraigned on the charges for which he was convicted; thereby

substantially depriving him of state or federal constitutional rights and/or

demonstrating that the trial and sentencing courts lacked jurisdiction."

In an April 28, 2022 order, the PCR judge denied defendant's third petition

as untimely. As the PCR judge explained, "[defendant's] third petition was not

filed within one year of any of the three events contemplated by R. 3:22-

12(a)(2)." Additionally, the judge found defendant did not "assert[] a new

constitutional avenue under which [he] should be afforded relief" and "fail[ed]

to assert newly recognized [c]onstitutional rights within one year prior to filing."

Regarding defendant's newly discovered evidence claim, the PCR judge

stated:

A-2975-21 3 At the time of [defendant's] petition, it had been roughly [twenty-one] years since [he was] charged and [twenty] years since [his] conviction. This information was readily available and could have been discovered by [defendant] prior to one year of the filing of this petition, which was filed on November 11, 2019 and then again on April 20, 2022. Therefore, [defendant's] third petition for post-conviction relief does not fall within the one-year time limitation as set out by R. 3:22-12(a)(2)(B) and as such, is time barred.

On appeal, defendant raises the following argument:

BECAUSE DEFENDANT WAS NEVER ARRAIGNED ON THE CHARGES FOR WHICH HE STANDS CONVICTED, THE TRIAL COURT LACKED JURISDICTION TO TRY HIM UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.

Specifically, defendant alleges a deprivation of his constitutional rights

during the pre-trial phase of his case because he was not fingerprinted or

arraigned. Defendant claims he first discovered evidence regarding purported

improprieties in his arraignment in 2019. We reject defendant's arguments.

We apply a de novo standard of review when a PCR court does not conduct

an evidentiary hearing. State v. Blake, 444 N.J. Super. 285, 294 (App. Div.

2016) (citing State v. Harris, 181 N.J. 391, 420-21 (2004)). When petitioning

for PCR, a defendant must establish entitlement to "PCR by a preponderance of

A-2975-21 4 the evidence." State v. O'Donnell, 435 N.J. Super. 351, 370 (App. Div. 2014)

(citing State v. Preciose, 129 N.J. 451, 459 (1992)).

The rules governing PCR petitions are set forth in Rule 3:22. Second or

subsequent PCR petitions must comply with the requirements of Rules 3:22-4(b)

and 3:22-12(a)(2). To avoid dismissal of a subsequent PCR petition, a defendant

must present evidence to satisfy one of three enumerated exceptions: a new rule

of constitutional law; newly discovered evidence; or ineffective assistance of

prior PCR counsel. R. 3:22-4(b)(2). Even when a defendant's PCR contentions

fit within these exceptions, a second or subsequent PCR petition must be timely

filed. R. 3:22-4(b)(1).

"[N]o second or subsequent petition shall be filed more than one year after

. . . the date on which the factual predicate for the relief sought was discovered,

if that factual predicate could not have been discovered earlier through the

exercise of reasonable diligence. . . ." R. 3:22-12(a)(2)(B). The one-year time

limitation for second or subsequent petitions is non-relaxable. R. 3:22-12(b).

Rule 3:22-4(b)(1) requires dismissal of a second or subsequent petition if not

timely under Rule 3:22-12(a)(2).

A-2975-21 5 Defendant's third amended petition submitted in 2022 was not filed within

one year of his alleged discovery of new evidence in 2019. Therefore, the

petition is time barred under Rule 3:22-12(a)(2)(B).

Additionally, defendant failed to submit a certification or affidavit

attesting to the purported improprieties in his arraignment. Nor did defendant

establish why the arraignment information could not have been discovered

earlier through the exercise of reasonable diligence. Thus, even if defendant's

third PCR petition was not time barred, his arguments based on alleged newly

discovered information related to his arraignment fail under Rule

3:22-4(b)(2)(B).

To the extent we have not addressed any of defendant's remaining

arguments, those arguments are without sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(2).

Affirmed.

A-2975-21 6