RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3971-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES E. ZOLA,
Defendant-Appellant. _________________________________
Submitted August 21, 2018 – Decided August 27, 2018
Before Judges Messano and Geiger.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Accusation No. 90-02-0102.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
Angelo J. Onofri, Mercer County Prosecutor, attorney for respondent (Laura C. Sunyak, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant James E. Zola was found guilty of capital murder
and other offenses and sentenced to death. State v. Zola, 112 N.J. 384, 390-91 (1988). The Court affirmed defendant's
convictions but vacated the death sentence and remanded the matter
for retrial of the penalty phase. Id. at 439-40. Thereafter,
defendant and the State entered into a plea bargain, whereby
defendant's convictions were vacated in return for his guilty
pleas to murder, kidnapping and first-degree robbery. In February
1990, without preparation of a Pre-Sentence Investigation Report
(PSI),1 defendant pled guilty and was sentenced the same day to
life imprisonment with a thirty-year period of parole
ineligibility on the murder conviction, a thirty-year term with a
fifteen-year period of parole ineligibility on the kidnapping
conviction, and a fifteen-year term with a five-year period of
parole ineligibility on the robbery conviction. Although the
judgment of conviction (JOC) reflects each sentence was to run
consecutively, it nevertheless states the "total" sentence was
life imprisonment with a fifty-year period of parole
ineligibility.2 Defendant did not appeal his conviction or
sentence.
On December 9, 2011, defendant filed a pro se petition for
post-conviction relief (PCR) which in large part challenged events
1 It is unclear whether any PSI report was ever prepared. 2 In its brief, the State agrees that defendant's sentence was a life term with fifty years of parole ineligibility.
2 A-3971-16T4 at his trial. However, defendant also asserted that he did not
knowingly and voluntarily plead guilty, and plea counsel provided
ineffective assistance. In supplemental certifications filed
after the appointment of PCR counsel, defendant claimed he was
under the influence of "psychotropic medications" that affected
his judgment and understanding at the time of his plea, plea
counsel never told defendant he waived his right to appeal, and
he was sentenced without preparation of a new PSI report.
Defendant also furnished the report of psychiatrist Dr. Daniel P.
Greenfield, who opined that defendant was plausibly "confused and
sedated" at the time he pled guilty. However, absent further
documentation, Dr. Greenfield could not opine "with a degree of
reasonable medical probability" that defendant was in fact
"confused and cognitively impaired" at the time of the plea or
that defendant would not otherwise have pled guilty but for the
effect of his medications.
Defendant explained his delay in filing the PCR petition was
due to excusable neglect, specifically, the effect of his
medications. Dr. Greenfield offered no opinion on this issue.
PCR counsel advanced additional contentions at oral argument,
asserting defendant's lack of access to his trial file occasioned
by the lapse in time was an additional basis for the delay. Counsel
argued defendant's sentence was excessive and, at the least,
3 A-3971-16T4 defendant should be resentenced after completion of a current PSI
report.
Judge Robert W. Bingham, II, issued a comprehensive written
opinion that accompanied the order denying defendant's petition.
Although there was no transcript of the plea allocution or
sentencing, Judge Bingham noted the plea form, which defendant
legibly signed, indicated his understanding of the charges, waiver
of his rights, including his right to file an appeal and his
sentence exposure.
Judge Bingham cited Rule 3:22-12(a)(1), which prohibits the
filing of a PCR petition more than five years after entry of the
JOC under attack unless the delay was the result of "excusable
neglect," and defendant's allegations, if true, raise a
"reasonable probability" that "enforcement of the time bar would
result in a fundamental injustice." Ibid. Judge Bingham concluded
the petition was "fatally untimely."
Judge Bingham nonetheless addressed all of defendant's IAC
claims as to plea counsel. He noted that because the Court
affirmed defendant's convictions and only remanded the matter for
a new penalty phase trial, defendant's claim that he would not
have pled guilty but for plea counsel's deficient advice was
specious. Judge Bingham also rejected the contention that plea
counsel failed to investigate defendant's psychological state at
4 A-3971-16T4 the time of the plea, noting the jury had rejected defendant's
diminished capacity defense at trial, and Dr. Greenfield offered
no opinion supporting defendant's current claim. In sum, the
judge rejected any argument that defendant's guilty plea was not
knowingly and voluntarily entered.
Judge Bingham refused to consider defendant's claims of trial
error, concluding they either could have been raised on direct
appeal but were not, or were otherwise adjudicated on direct
appeal. See R. 3:22-4 and -5. He rejected defendant's argument
regarding the sentence, noting that the sentence was not illegal
or otherwise cognizable on PCR review. R. 3:22-2(c).
Finally, Judge Bingham rejected defendant's contention that
he should be resentenced because no PSI report was completed prior
to sentencing. Although such reports are mandatory, State v.
Mance, 300 N.J. Super. 37, 66 (App. Div. 1997), the Rule in effect
when defendant was convicted did not require a PSI report when a
defendant was sentenced to death. R. 3:21-2(a) (1990). The judge
reasoned that because the trial judge presided over the taking of
defendant's guilty plea, and defendant had remained incarcerated
between the trial and subsequent sentencing, there was no reason
to grant PCR relief solely to resentence defendant.
5 A-3971-16T4 Before us, defendant first contends that we must remand the
matter to the Law Division to reconstruct the record of his guilty
plea. We disagree.
At the PCR hearing, the parties stipulated that a transcript
of the proceedings could not be produced despite diligent efforts.
Apparently, a transcript had never been produced, and the
stenographic notes from the plea proceedings could not be located
more than two decades later. Defendant acknowledges that the
passage of time has resulted in the unavailability of both the
trial judge and trial prosecutor, both now deceased. It is unclear
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RECORD IMPOUNDED
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-3971-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES E. ZOLA,
Defendant-Appellant. _________________________________
Submitted August 21, 2018 – Decided August 27, 2018
Before Judges Messano and Geiger.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Accusation No. 90-02-0102.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
Angelo J. Onofri, Mercer County Prosecutor, attorney for respondent (Laura C. Sunyak, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant James E. Zola was found guilty of capital murder
and other offenses and sentenced to death. State v. Zola, 112 N.J. 384, 390-91 (1988). The Court affirmed defendant's
convictions but vacated the death sentence and remanded the matter
for retrial of the penalty phase. Id. at 439-40. Thereafter,
defendant and the State entered into a plea bargain, whereby
defendant's convictions were vacated in return for his guilty
pleas to murder, kidnapping and first-degree robbery. In February
1990, without preparation of a Pre-Sentence Investigation Report
(PSI),1 defendant pled guilty and was sentenced the same day to
life imprisonment with a thirty-year period of parole
ineligibility on the murder conviction, a thirty-year term with a
fifteen-year period of parole ineligibility on the kidnapping
conviction, and a fifteen-year term with a five-year period of
parole ineligibility on the robbery conviction. Although the
judgment of conviction (JOC) reflects each sentence was to run
consecutively, it nevertheless states the "total" sentence was
life imprisonment with a fifty-year period of parole
ineligibility.2 Defendant did not appeal his conviction or
sentence.
On December 9, 2011, defendant filed a pro se petition for
post-conviction relief (PCR) which in large part challenged events
1 It is unclear whether any PSI report was ever prepared. 2 In its brief, the State agrees that defendant's sentence was a life term with fifty years of parole ineligibility.
2 A-3971-16T4 at his trial. However, defendant also asserted that he did not
knowingly and voluntarily plead guilty, and plea counsel provided
ineffective assistance. In supplemental certifications filed
after the appointment of PCR counsel, defendant claimed he was
under the influence of "psychotropic medications" that affected
his judgment and understanding at the time of his plea, plea
counsel never told defendant he waived his right to appeal, and
he was sentenced without preparation of a new PSI report.
Defendant also furnished the report of psychiatrist Dr. Daniel P.
Greenfield, who opined that defendant was plausibly "confused and
sedated" at the time he pled guilty. However, absent further
documentation, Dr. Greenfield could not opine "with a degree of
reasonable medical probability" that defendant was in fact
"confused and cognitively impaired" at the time of the plea or
that defendant would not otherwise have pled guilty but for the
effect of his medications.
Defendant explained his delay in filing the PCR petition was
due to excusable neglect, specifically, the effect of his
medications. Dr. Greenfield offered no opinion on this issue.
PCR counsel advanced additional contentions at oral argument,
asserting defendant's lack of access to his trial file occasioned
by the lapse in time was an additional basis for the delay. Counsel
argued defendant's sentence was excessive and, at the least,
3 A-3971-16T4 defendant should be resentenced after completion of a current PSI
report.
Judge Robert W. Bingham, II, issued a comprehensive written
opinion that accompanied the order denying defendant's petition.
Although there was no transcript of the plea allocution or
sentencing, Judge Bingham noted the plea form, which defendant
legibly signed, indicated his understanding of the charges, waiver
of his rights, including his right to file an appeal and his
sentence exposure.
Judge Bingham cited Rule 3:22-12(a)(1), which prohibits the
filing of a PCR petition more than five years after entry of the
JOC under attack unless the delay was the result of "excusable
neglect," and defendant's allegations, if true, raise a
"reasonable probability" that "enforcement of the time bar would
result in a fundamental injustice." Ibid. Judge Bingham concluded
the petition was "fatally untimely."
Judge Bingham nonetheless addressed all of defendant's IAC
claims as to plea counsel. He noted that because the Court
affirmed defendant's convictions and only remanded the matter for
a new penalty phase trial, defendant's claim that he would not
have pled guilty but for plea counsel's deficient advice was
specious. Judge Bingham also rejected the contention that plea
counsel failed to investigate defendant's psychological state at
4 A-3971-16T4 the time of the plea, noting the jury had rejected defendant's
diminished capacity defense at trial, and Dr. Greenfield offered
no opinion supporting defendant's current claim. In sum, the
judge rejected any argument that defendant's guilty plea was not
knowingly and voluntarily entered.
Judge Bingham refused to consider defendant's claims of trial
error, concluding they either could have been raised on direct
appeal but were not, or were otherwise adjudicated on direct
appeal. See R. 3:22-4 and -5. He rejected defendant's argument
regarding the sentence, noting that the sentence was not illegal
or otherwise cognizable on PCR review. R. 3:22-2(c).
Finally, Judge Bingham rejected defendant's contention that
he should be resentenced because no PSI report was completed prior
to sentencing. Although such reports are mandatory, State v.
Mance, 300 N.J. Super. 37, 66 (App. Div. 1997), the Rule in effect
when defendant was convicted did not require a PSI report when a
defendant was sentenced to death. R. 3:21-2(a) (1990). The judge
reasoned that because the trial judge presided over the taking of
defendant's guilty plea, and defendant had remained incarcerated
between the trial and subsequent sentencing, there was no reason
to grant PCR relief solely to resentence defendant.
5 A-3971-16T4 Before us, defendant first contends that we must remand the
matter to the Law Division to reconstruct the record of his guilty
plea. We disagree.
At the PCR hearing, the parties stipulated that a transcript
of the proceedings could not be produced despite diligent efforts.
Apparently, a transcript had never been produced, and the
stenographic notes from the plea proceedings could not be located
more than two decades later. Defendant acknowledges that the
passage of time has resulted in the unavailability of both the
trial judge and trial prosecutor, both now deceased. It is unclear
whether plea counsel was still available, but, the record fails
to include any certification from her, and, therefore, no alleged
facts that dispute Judge Bingham's conclusions.
We also note that defendant never sought this relief from
Judge Bingham. See State v. Robinson, 200 N.J. 1, 20 (2009)
(noting "the obvious need to create a complete record and to
preserve issues for appeal"). Nor did defendant move for this
relief while the appeal was pending. See R. 2:5-3(f).
More importantly, missing transcripts do not implicate due
process rights unless a defendant can demonstrate due diligence
to correct the deficiency and resulting prejudice. State v.
Bishop, 350 N.J. Super. 335, 347 (App. Div. 2002). Here, defendant
can do neither. He waited more than two decades to present his
6 A-3971-16T4 petition. Additionally, his claims, which center on the effect
medications had on his mental state when he pled guilty, are bald
assertions in light of Dr. Greenfield's equivocal report. See
State v. Porter, 216 N.J. 343, 355 (2013) (noting a PCR defendant
"must allege specific facts and evidence supporting his
allegations"). There is no showing of prejudice.
Defendant also argues he was entitled to an evidentiary
hearing on his petition, specifically contending it was not time-
barred, or alternatively, that he demonstrated excusable neglect
for the late filing, plea counsel was ineffective, his guilty plea
was not knowing and voluntary and the sentence was excessive due
to misapplication of State v. Yarbough, 100 N.J. 627 (1985). All
these contentions lack sufficient merit to warrant discussion in
a written opinion, Rule 2:11-3(e)(2), and we affirm substantially
for the reasons expressed by Judge Bingham's thoughtful opinion.
Lastly, defendant argues the failure to order a PSI report
violated N.J.S.A. 2C:44-6, which makes preparation of the report
mandatory. See also R. 3:21-2(a) (requiring completion of PSI
report prior to sentencing). As a result, defendant contends his
sentence was "illegal," and his challenge was not time-barred.
See R. 3:21-10(b)(5) (permitting an application to correct an
illegal sentence to be filed at any time). Notably, the State
fails to address this argument in its brief.
7 A-3971-16T4 In State v. Richardson, 117 N.J. Super. 502, 505 (App. Div.
1971), the defendant refused to cooperate with the probation
department in preparation of the PSI report, resulting in no report
being furnished to the court prior to sentencing. Interpreting
prior versions of the statute and Rule consistent with current
iterations, we accepted the defendant's argument that a sentence
imposed without a PSI report was "illegal." Id. at 504-05. We
also rejected the State's contention that the defendant had waived
his right to a PSI report, "hold[ing] that as a general rule, a
defendant cannot waive the mandatory provision that such an
investigation and report must be submitted to the court before the
imposition of sentence." Id. at 506.
We are therefore constrained to vacate the sentences imposed
on defendant and remand the matter to the trial court for
preparation of a PSI report and resentencing. Given the reason
for our remand, in accordance with the Court's guidance in State
v. Randolph, 210 N.J. 330 (2012), the judge shall consider the
appropriate sentence "as [defendant] stands before th[e] court at
the moment of resentencing." Id. at 349. We further note that
"where the sentence imposed in the first instance was illegal, a
defendant has no basis to argue that imposition of a harsher
sentence on appeal is prohibited." State v. Eckert, 410 N.J.
8 A-3971-16T4 Super. 389, 407 (App. Div. 2009) (citing State v. McCourt, 131
N.J. Super. 283, 287-88 (App. Div. 1974)).
Lastly, the remand shall provide the opportunity for the
court to clarify what may have been a purely technical error in
the judgment of conviction, which standing alone would not require
the substantive resentencing that we have now ordered. Randolph,
210 N.J. at 351 (citing State v. Tavares, 286 N.J. Super. 610, 616
(App. Div. 1996) (distinguishing "abbreviated resentencing
proceedings for the purpose of correcting technical errors")). As
noted, although the judge imposed consecutive sentences, the only
consecutively imposed feature of the sentence was the total period
of parole ineligibility; the judgment of conviction did not
aggregate the consecutive terms for kidnapping and robbery onto
the life sentence imposed for murder. In resentencing defendant,
the judge shall have the opportunity to address this anomaly.
Affirmed in part, reversed in part. The sentences imposed
are vacated and the matter is remanded for resentencing.
9 A-3971-16T4