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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0139-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
K.A.,
Defendant-Appellant.
___________________________________________
Submitted October 10, 2017 – Decided November 9, 2017
Before Judges Messano and O'Connor.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-05-1614.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).
Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant K.A.1 appeals from the denial of his petition for
post-conviction relief (PCR) following an evidentiary hearing.
For the reasons that follow, we affirm.
I
In April 2008, defendant pled guilty to first-degree
aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(a).
Specifically, he admitted he had vaginal intercourse with his
daughter when she was fifteen years of age. In July 2008, he
was sentenced to a seventy-four year term of imprisonment,
subject to an eighty-five percent period of parole
ineligibility; the date of the judgment of conviction was August
1, 2008. Defendant appealed his sentence, which was reviewed
before an Excessive Sentence Oral Argument (ESOA) Panel.
Finding the sentence manifestly excessive and unduly punitive,
we remanded for resentencing. State v. Ali, No. A-4887-08 (App.
Div. June 28, 2010).
On October 22, 2010, the trial court resentenced defendant
to a fifty-year term of imprisonment, subject to an eighty-five
percent period of parole ineligibility. Defendant appealed but,
in October 2011, his sentence was affirmed by an ESOA Panel.
State v. Ali, No. A-5611-10 (App. Div. Oct. 20, 2011). On
1 To protect the victim's privacy, we refer to defendant by his initials. 2 A-0139-16T1 October 23, 2012, our Supreme Court denied defendant's petition
for certification. State v. Ali, 212 N.J. 431 (2012).
On October 15, 2014, defendant filed a petition for PCR,
and subsequently filed an amended petition for PCR. In those
petitions, defendant claims that, well before trial, the State
extended a plea offer to defendant, the terms of which were as
follows. In exchange for pleading guilty to first-degree
aggravated sexual assault, the State would recommend a twenty
year term of imprisonment, subject to an eighty-five percent
period of parole ineligibility, and dismiss the remaining
charges.2 Defendant claims his attorney discouraged him from
accepting the offer, advising he should hold out for a better
plea arrangement. Swayed by his attorney's advice, defendant
rejected the plea offer.
Defendant alleges that, after the jury was selected, the
State offered him "an open plea of twenty years to life." When
his attorney convinced defendant he could persuade the court to
sentence defendant to a fifteen-year term of imprisonment,
2 In addition to the charge to which he ultimately pled, defendant had been charged with three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); five counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14- 2(a)(2); two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b); one count of second-degree endangering the welfare of a child; and two counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a). 3 A-0139-16T1 defendant decided to accept the open plea. Defendant was then
sentenced to a seventy-four year term of imprisonment, which was
later reduced to a fifty-year term. Defendant claims that had
he known at the time the first plea offer was tendered that he
was exposed to a sentence of greater than twenty years, he would
have accepted such offer. He also asserts his attorney failed
to warn him that, with six convictions on his record, he was
eligible for a discretionary extended term.
In his petitions, defendant acknowledges his initial PCR
petition was filed more than five years after the entry of the
judgment of conviction and, thus, was untimely. See Rule 3:22-
12(a)(1). He claimed his delay in filing the petition was due
to excusable neglect, and that enforcement of the time bar would
result in a fundamental injustice. See Rule 3:22-12(a)(1)(A).
Defendant admits that when the Supreme Court denied his
petition for certification in October 2012, he knew he had to
file a PCR petition before August 1, 2013. In preparation for
that filing, in November 2012, defendant contacted an
organization that provides legal assistance to prisoners. This
entity assisted defendant by providing a paralegal to prepare
his PCR petition, but the paralegal was fired in April 2013.
Another paralegal took over the file, but he was transferred to
another prison shortly thereafter. 4 A-0139-16T1 Defendant was then placed in administrative segregation for
violating a prohibited act. While in segregation, he was
advised by another inmate "not trained in law" that defendant
had five years from the time he was re-sentenced to file a PCR
petition. Thus, defendant assumed he had until October 22, 2015
to file his petition. Defendant also claims it took a year to
retrieve his paperwork from the last paralegal who had been
helping him, why his petition was filed out of time.
After reviewing the parties' pleadings, the PCR court
ordered an evidentiary hearing. The witnesses at the hearing
were defendant, his attorney (attorney), and the assistant
prosecutor (prosecutor) who handled this matter for the State.
On the question whether the petition was time-barred,
defendant's testimony was essentially consistent with what he
stated in his verified petitions. The court found the petition
time-barred, noting neither inaccurate legal advice about nor
ignorance of the deadline within which to file a petition is
excusable neglect. Further, the court noted defendant failed to
articulate how the failure to have certain paperwork, the
contents of which defendant failed to divulge, impaired his
ability to file a timely petition. In addition, the court noted
defendant was not asserting in his petitions that he was in fact
5 A-0139-16T1 innocent of the charge to which he pled or challenging his
sentence.
The court also addressed the substantive issues. Before
recounting the material testimony the PCR court found credible
on such issues, we provide some background facts. Defendant
impregnated the victim and she terminated the pregnancy. Some
of the fetal tissue was preserved by the staff at the medical
facility at which the termination took place, and the State
ultimately had the tissue tested to determine if defendant was
the father of the fetus. Before it made its first plea offer,
the State provided defendant with a report from a "DNA expert."
The report was not included in the record, but we surmise from
other documents provided that the expert claimed sufficient
evidence existed to conclude defendant was the father of the
fetus.
However, the attorney noted the expert's opinion was not
stated to be within a reasonable degree of medical probability.
The attorney deemed this omission significant because, without
sufficient medical or scientific evidence to link the fetus to
defendant, proof defendant sexually assaulted his daughter was
going to be limited to the credibility of her testimony. To
preclude the State from having sufficient time to correct the
deficiency in the expert's report before trial, the attorney 6 A-0139-16T1 purposely did not bring the subject flaw to the State's
attention until the parties appeared for jury selection.
When the parties ultimately appeared to pick a jury, the
attorney informed the court defendant was objecting to the
admission of the expert's testimony because of the subject flaw
in his opinion. However, jury selection was postponed for a few
days and, in the interim, the State obtained an amended expert's
report correcting the deficiency in the expert's opinion.
After the jury was selected but before opening statements,
the attorney moved to bar the expert's testimony. The attorney
argued it was unfair to allow the expert to testify to any
opinion that first appeared in the expert's amended report
because the report was served on the eve of trial. The court
rejected defendant's argument.
The attorney then challenged the chain of custody of the
fetal tissue, which was used to establish the expert's opinion
defendant was the father of the fetus. After a hearing, the
court found no flaw existed in the chain of custody.
Immediately thereafter the parties engaged in plea negotiations
and defendant pled guilty that day.
The material evidence the PCR court found credible at the
evidentiary hearing was as follows. Before the matter was
listed for trial, the State made a plea offer that defendant 7 A-0139-16T1 plead to first-degree aggravated sexual assault, and the State
would recommend a twenty year term of imprisonment, with an
eighty-five percent ineligibility period, and dismiss the
remaining charges. The attorney advised defendant to reject the
offer because of the flaw in the DNA expert's opinion, and
further informed defendant that if he declined the offer, the
attorney would attempt to negotiate a prison term of fifteen to
twenty years. The attorney also told defendant he wanted to
challenge the chain of custody of the fetal tissue. Defendant
rejected the offer, which was subsequently withdrawn.
After a jury was selected, the court rejected defendant's
motion to bar the DNA expert's testimony, as well as his
challenge to the chain of custody of the fetal tissue. The
State then made its second offer. That offer was defendant
plead to first-degree aggravated assault, but all other terms of
the plea deal would be open. Before the attorney discussed this
offer with defendant, he and the prosecutor met with the trial
judge in chambers.
The attorney claimed the court indicated it would sentence
defendant to a term of imprisonment between twenty-six and
twenty-eight years. The prosecutor asserted the court made no
mention of how it intended to sentence defendant. The PCR court
did not explicitly resolve who was the more credible. However, 8 A-0139-16T1 the court found the attorney in fact advised defendant he was
exposed to an "extreme sentence," but also informed defendant
that, based upon the court's comments in chambers, defendant
probably would be sentenced to between twenty-six and twenty-
eight years in prison.
The PCR court noted that, during the plea hearing but
before defendant pled guilty, the attorney, the prosecutor, and
the court stated defendant would be exposed to a term of
imprisonment from twenty years to life by accepting the State's
offer. Moreover, defendant admitted he understood he was
exposed to a sentence of twenty years to life if he pled guilty.
The court found credible defendant's concession at the PCR
hearing that the attorney did in fact inform him before he pled
guilty that his sentence could be twenty years to life in prison
and, further, the attorney did not promise any particular
result. In addition, the court noted defendant signed a notice
informing him he was subject to an extended term and defendant
acknowledged he had six previous convictions before he pled
guilty.
The PCR court determined defendant knew before he pled to
the open plea that his sentencing exposure was twenty years to
life. Thus, even if his attorney told him the court indicated
in chambers it would impose a prison term of only twenty-six to 9 A-0139-16T1 twenty-eight years, defendant was aware the court could impose a
far greater term of imprisonment. The court ultimately
concluded:
[I]n the context of an open plea, where no result was promised or guaranteed, and where the – where the defendant was told and understood his full sentencing exposure, does not constitute deficient performance as contemplated by Strickland.
Accordingly, even if [the attorney] was ineffective in failing to advise the defendant of his sentence exposure under the open plea, and I find that that's not, in fact, the case, defendant failed to prove that he was prejudiced by this deficiency because the court adequately informed the defendant of his exposure at the plea hearing.
On April 15, 2016, the court entered an order denying
defendant his request for post-conviction relief.
II
On appeal, defendant presents the following arguments for
our consideration.
POINT I – THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, UPON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-12(a)(1).
POINT II – THE TRIAL COURT ERRED IN DENYNG THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF FOLLOWING THE EVIDENTIARY HEARING SINCE THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION ARISING OUT OF HIS GUILTY PLEA, WHILE THE FACTUAL FINDINGS MADE BY THE TRIAL COURT UNDERLYING ITS 10 A-0139-16T1 DENIAL WERE NOT SUPPORTED BY THE RECORD ESTABLISHED AT THE HEARING.
A
Rule 3:22-12(a)(1) states a defendant's first petition for
PCR shall be filed no more than five years after the entry of
the judgment of conviction. However, a court may relax the
five-year time bar "if the petition alleges facts showing the
filing was untimely due to defendant's excusable neglect and
there is a reasonable probability that, if defendant's factual
assertions were found to be true, enforcement of the time bar
would result in a fundamental injustice." See Rule 3:22-
12(a)(1)(A).
Here, the judgment of conviction was entered on August 1,
2008 and defendant's first and only petition for PCR was filed
on October 15, 2014. Therefore, his petition is procedurally
barred as untimely unless the delay was due to defendant's
excusable neglect and there is a reasonable probability
enforcement of the time-bar would result in a fundamental
injustice. Ibid.
"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). If the petitioner fails to allege sufficient
11 A-0139-16T1 facts, this rule bars the claim. State v. Mitchell,
126 N.J. 565, 576 (1992). A defendant's lack of sophistication
in the law does not relax the time-bar. State v. Murray, 162
N.J. 240, 246 (2000).
Defendant fails to provide any facts to show his failure to
timely file his petition was due to excusable neglect.
Defendant admitted he knew well in advance of the five-year
deadline he had to file a petition before August 1, 2013.
Defendant claims that after the two paralegals ceased working on
his file, another inmate told him he had five years from the
date of his resentencing, which was on October 22, 2010, to file
a PCR. However, defendant does not provide any plausible reason
why his reliance on the inmate's advice should be deemed
excusable.
Defendant also claims he needed to retrieve his paperwork
from the second paralegal, but defendant does not provide any
reason why that was necessary in order for him to fill out and
file a timely petition. As the PCR court pointed out, the forms
for self-represented litigants were simple and easy to complete.
Defendant asserts for the first time on appeal that neither
the court that originally sentenced him, his trial attorney, nor
appellate counsel informed him of the time restriction within
which to file a PCR petition. However, because this issue was 12 A-0139-16T1 not raised before the PCR court, "[g]enerally, an appellate
court will not consider issues, even constitutional ones, which
were not raised below." State v. Galicia, 210 N.J. 364, 383
(2012).
Notwithstanding, for defendant's benefit we observe that
when defendant was originally sentenced, the court was not
required to inform defendants of the time within which a PCR
petition had to be filed, as presently required by Rule 3:21-
4(h). More important, even if the court had an obligation to
advise defendant of the time limitations in Rule 3:22-12(a)(1),
the result would have been the same because defendant knew he
was required to file his petition before August 1, 2013.
Therefore, the PCR court correctly found defendant failed to
show there existed excusable neglect for failing to timely file
his PCR petition.
Defendant contends enforcement of the time bar would result
in a fundamental injustice because he received ineffective
assistance from the attorney. Although the failure to timely
file a petition in the absence of excusable neglect obviates the
necessity of considering this issue, see Rule 3:22-12(a)(1)(A),
for the sake of completeness we note, even if there were
excusable neglect, for the reasons set forth below defendant
fails to show the attorney rendered ineffective assistance. 13 A-0139-16T1 B
We turn to defendant's second argument point, which
contends the court's factual findings are not supported by the
record, and the attorney failed to render effective assistance.
We readily dispense with the former contention by noting the PCR
court's findings are amply supported by the evidence adduced
during the evidentiary hearing. Before addressing the
contention counsel was ineffective, we review the law governing
our review.
The standard for determining whether counsel's performance
was ineffective for purposes of the Sixth Amendment was
formulated in Strickland v. Washington, 466 U.S. 668, l04 S. Ct.
2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court
in State v. Fritz, l05 N.J. 42 (l987). In order to prevail on a
claim of ineffective assistance of counsel, defendant must meet
a two-prong test. The first prong is counsel's performance was
deficient and he made errors so egregious that counsel was not
functioning effectively as guaranteed by the Sixth Amendment to
the United States Constitution. Strickland, supra, 466 U.S. at
687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
The second prong is the defect in performance prejudiced
defendant's rights to a fair trial such that there exists a
"reasonable probability that, but for counsel's unprofessional 14 A-0139-16T1 errors, the result of the proceeding would have been different."
Ibid. If a defendant has pled guilty, the second prong a
defendant must fulfill is "'there is a reasonable probability
that, but for counsel's errors, [the defendant] would not have
pled guilty but would have insisted on going to trial.'" State
v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (quoting State v.
DiFrisco, 137 N.J. 434, 457 (1994)).
"[J]udicial scrutiny of the attorney's performance must be
highly deferential." State v. Chung, 210 N.J. Super. 427, 434
(App. Div. 1986). Further,
[e]very effort must be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct and to evaluate the conduct from counsel's perspective at the time. Id. at 689, 104 S. Ct. at 2065. Furthermore, an appellate court reviewing counsel's performance must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 690, 104 S. Ct. at 2066.
[Ibid.]
Having reviewed the record and the applicable legal
principles, we are satisfied defendant failed to show the
attorney was ineffective.
In his brief, defendant clarifies his allegations of
15 A-0139-16T1 ineffectiveness are the attorney: (1) failed to appreciate the
strength of the State's case when it made its first plea offer
and advise defendant to accept this plea offer; (2) advised him
to reject "a 20 year plea offer and instead enter into an 'open'
plea subjecting him to a sentence between 20 years and life
imprisonment, further advising him he could obtain a much more
beneficial sentence under such an 'open' plea;" and (3) failed
to advise him of the adverse ramifications of entering into an
open plea.
We are not persuaded by any of these arguments. There is
no evidence the attorney failed to appreciate the strength of
the State's case when the State extended its first plea offer,
or that he was ineffective for failing to recommend defendant
accept this offer. When the first offer was made, the posture
of the case was very different from what it was by the time the
second offer was extended. When the second offer was made, the
State's case was far stronger; the State had just come into
possession of evidence that established the causal link between
the fetus and defendant, conclusively showing defendant had
vaginally penetrated his daughter.
The State did not have that evidence at the time the first
offer was extended. At that earlier point in the litigation,
the State's case was dependent upon whether the jury would find 16 A-0139-16T1 the victim credible, a form of proof far less potent than what
the amended expert's report provided. At that point, defendant
had appreciably more bargaining power to negotiate a plea
agreement. Mindful of the weaknesses in the State's case, the
attorney advised defendant to reject the initial plea offer so
he could attempt to secure a more favorable one. Defendant has
not provided any persuasive reason why counsel was ineffective
for recommending this course of action at that time.
There is no credible evidence to support defendant's claim
the attorney advised him to reject "a 20 year plea offer and
instead enter into an 'open' plea subjecting him to a sentence
between 20 years and life imprisonment, [and] further advis[ed]
him he could obtain a much more beneficial sentence under such
an 'open' plea." The attorney never advised defendant to reject
a twenty-year plea offer in order to accept an open plea in its
stead. At the time the attorney advised defendant to accept the
open plea, the offer to plea to the twenty-year term of
imprisonment no longer existed. The two plea offers were made
at two very different points during the prosecution of this
case.
Similarly, there is no credible evidence the attorney
failed to advise defendant of the adverse ramifications of
entering into the open plea. In fact, there is considerable 17 A-0139-16T1 evidence the attorney advised defendant of the sentencing
consequences of the open plea.
Finally, to the extent we have not addressed any of
defendant's arguments, it is because they were without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2).
Affirmed.
18 A-0139-16T1