STATE OF NEW JERSEY VS. GREGORY WILSON (78-07-0990, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2018 )


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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    NOT FOR PUBLICATION WITHOUT THE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-3197-16T2
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    GREGORY WILSON,
    Defendant-Appellant.
    ______________________________
    Submitted September 13, 2018 – Decided October 4, 2018
    Before Judges Vernoia and Moynihan.
    On appeal from Superior Court of New Jersey, Law
    Division, Atlantic County, Indictment No. 78-07-0990.
    Joseph E. Krakora, Public Defender, attorney for
    appellant (Andrew P. Slowinski, Designated Counsel,
    on the brief).
    Damon G. Tyner, Prosecutor, attorney for respondent
    (Mario C. Formica, Deputy First Assistant Prosecutor,
    of counsel and on the brief).
    PER CURIAM
    Defendant appeals the denial of his post-conviction relief (PCR) petition
    without an evidentiary hearing. He was sentenced on June 17, 1980 following
    his jury-trial convictions for Title 2A crimes of: rape, N.J.S.A. 2A:138-1 (count
    fourteen); lewdness, N.J.S.A. 2A:115-1 (count twelve); and assault with intent
    to rape, N.J.S.A. 2A:90-2 (count thirteen), and received a prison term of not less
    than seven but not more than ten years on count fourteen. 1 Defendant avers a
    prior appeal was filed on July 25, 1982 but that there is no record of a decision. 2
    Following defendant's move to California after his release from prison, and his
    discovery that he was subject to the registration requirements of the Sex
    Offender Registration Act, 3 California's version of Megan's Law, N.J.S.A. 2C:7-
    1 to 7-23, he filed a PCR – as the trial court found – on April 29, 2015.4
    Defendant argues:
    1
    The lewdness and assault counts merged with the rape charge.
    2
    The State, however, included in its appendix a copy of our decision in State
    v. Jasper, No. A-4447-79, State v. Wilson, No. A-4635-79 (consolidated) (App.
    Div. July 14, 1982).
    3
    
    Cal. Penal Code §§ 290
     to 290.024.
    4
    A stamped-filed date does not appear on the pertinent record-documents. As
    the State points out in its merits brief, defendant's certification in support of his
    PCR petition is dated February 5, 2016, handwritten next to defendant's
    signature.
    A-3197-16T2
    2
    POINT I
    THE PCR COURT SHOULD HAVE HELD THAT
    DEFENDANT'S CONSTITUTIONAL RIGHT TO
    EFFECTIVE ASSISTANCE OF COUNSEL WAS
    VIOLATED    BY     DEFENSE   COUNSEL'S
    INADEQUATE    REPRESENTATION   DURING
    TRIAL PROCEEDINGS.
    (A) DEFENDANT PRESENTED A SUFFICIENT
    SHOWING TO MEET THE FIRST PRONG OF THE
    STRICKLAND-FRITZ STANDARD.
    (B) DEFENDANT PRESENTED A SUFFICIENT
    SHOWING TO MEET THE SECOND PRONG OF
    THE STRICKLAND-FRITZ STANDARD.
    POINT II
    THE PCR COURT SHOULD HAVE GRANTED
    DEFENDANT AN EVIDENTIARY HEARING AS
    THERE WERE DISPUTED ISSUES OF FACT AND
    THE LAPSE OF TIME SINCE DEFENDANT'S
    TRIAL WOULD ACCRUE TO THE BENEFIT OF
    THE STATE MORE THAN TO DEFENDANT.
    POINT III
    THE PCR COURT SHOULD HAVE HELD THAT
    DEFENDANT ESTABLISHED A PRIMA FACIE
    CASE OF INEFFECTIVE ASSISTANCE OF
    APPELLATE COUNSEL.
    POINT IV
    THE PCR COURT SHOULD HAVE HELD THAT
    DEFENDANT''S PETITION WAS NOT BARRED AS
    UNTIMELY BY R. 3:22-12(a) AS DEFENDANT
    A-3197-16T2
    3
    COULD NOT HAVE FORESEEN THAT HE WOULD
    BECOME SUBJECT TO REGISTRATION AS A SEX
    OFFENDER MORE THAN THIRTY YEARS AFTER
    HIS CONVICTION.
    We affirm, concluding defendant's petition is time-barred, and that he failed to
    establish both a prima facie case of ineffective assistance of counsel to warrant
    an evidentiary hearing, and the ineffectiveness of either his trial or appellate
    counsel.
    Absent an evidentiary hearing, our review of the factual inferences drawn
    by the PCR court from the record is de novo. State v. Blake, 
    444 N.J. Super. 285
    , 294 (App. Div. 2016). Likewise, we review de novo the PCR court's legal
    conclusions. 
    Ibid.
    Defendant argues his petition is not time-barred because he "was unaware
    that his conviction in 1980 might become a basis for subjecting him to the
    requirements of California's Megan's Law until shortly before he filed his
    petition." He contends at the time of his conviction, "registration as a sex
    offender was not part of [his] sentence and he could not reasonabl[]y have
    foreseen that it would become part of his sentence more than thirty years later.
    Under these circumstances, the interests of justice warrant a relaxation of the
    time limits of R[ule] 3:22-12(a)."
    A-3197-16T2
    4
    We reject that basis as a reason to relax the strictures of Rule 3:22-12(a)(1)
    which, provide in pertinent part:
    no 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.
    "[A] court should relax Rule 3:22-12's bar only under exceptional
    circumstances. The court should consider the extent and cause of the delay, the
    prejudice to the State, and the importance of the petitioner's claim in determining
    whether there has been an 'injustice' sufficient to relax the time limits." State v.
    Mitchell, 
    126 N.J. 565
    , 580 (1992).
    Defendant's unfamiliarity with the Megan's Law registration requirements
    does not constitute excusable neglect. "Ignorance 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 o.b., 
    365 N.J. Super. 82
     (App. Div. 2003). Similarly,
    a defendant's "lack[] [of] sophistication in the law" is not excusable neglect.
    State v. Murray, 
    162 N.J. 240
    , 246 (2000).
    A-3197-16T2
    5
    Further, California enacted its version of Megan's Law in 1996,
    effectively putting defendant on notice of its requirements. Even if defendant's
    failure to file within five years of that date is deemed excusable, his failure to
    file within the prescribed time from his August 2007 arrest in California for
    failing to register is not, inasmuch as defendant had actual notice of the
    registration requirements following his arrest.
    Moreover, despite defendant's statement that he had no reason to contest
    his conviction until he became aware of the registration requirements, the PCR
    grounds he advanced existed well before his enlightenment. His ineffective
    assistance of trial counsel arguments were spawned prior to sentencing; and his
    ineffective assistance of appellate counsel arguments, after our July 1982
    decision at the latest. Nothing prevented defendant from timely advancing those
    arguments – unrelated to Megan's Law.
    We also conclude defendant's significant filing delay would obviously
    prejudice the State if it was required to reconstruct these matters for trial. Our
    Supreme Court recognized the "good reasons" underlying the time bar:
    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
    A-3197-16T2
    6
    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. The Rule therefore strongly
    encourages those believing they have grounds for post-
    conviction relief to bring their claims swiftly, and
    discourages them from sitting on their rights until it is
    too late for a court to render justice.
    [Mitchell, 
    126 N.J. at 575-76
    .]
    As the PCR judge found, the impact of the decades-long passage of time is
    profound. The death of defendant's trial counsel eliminated a source of evidence
    as to counsel's actions during the proceedings against defendant, and counsel's
    reasons for any of his actions, whether they be trial strategy or ineffective
    representation. The availability of witnesses and their ability to recollect events
    that occurred in June 1979 also become issues; as does the related concern about
    prejudice to the State's ability to meet its burden in light of the probable
    challenge at a present-day trial to its witnesses' ability to remember.
    Defendant's attempt to analogize our holding in State v. Maldon, 
    422 N.J. Super. 475
     (App. Div. 2011) is unavailing. There the defendant contended his
    trial counsel's failure to accurately explain a consequence of his guilty plea –
    the possibility of civil commitment as a sexually violent predator – amounted to
    ineffective assistance of counsel. 
    Id. at 481
    . We concluded that the defendant
    could not have filed a PCR petition because he did not know he could be civilly
    A-3197-16T2
    7
    committed until the State moved for commitment. 
    Id. at 482
    . Unlike here, the
    PCR issue directly related to the reason for that defendant's untimely filing.
    
    Ibid.
    The balance of defendant's arguments related to the time bar, including
    his reliance on our decisions in State v. J.J.,5 and State v. Jamgochian,6 are
    without sufficient merit to warrant discussion.      R. 2:11-3(e).   Defendant's
    petition is time barred.
    Even considering the substantive merits of defendant's petition, we are
    unpersuaded that either his trial counsel or appellate counsel was ineffective, or
    that the judge erred by denying his request for an evidentiary hearing.         To
    establish a PCR claim of ineffective assistance of counsel, a defendant must
    satisfy the test formulated in Strickland v. Washington, 
    466 U.S. 668
    , 687
    (1984), and adopted by our Supreme Court in State v. Fritz, 
    105 N.J. 42
    , 58
    (1987), first by "showing that counsel made errors so serious that counsel was
    not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment,"
    Strickland, 
    466 U.S. at 687
    ; then by proving he suffered prejudice due to
    counsel's deficient performance, 
    id. at 691-92
    . Defendant must show by a
    5
    
    397 N.J. Super. 91
     (App. Div. 2007).
    6
    
    363 N.J. Super. 222
     (App. Div. 2003).
    A-3197-16T2
    8
    "reasonable probability" that the deficient performance affected the outcome.
    Fritz, 
    105 N.J. at 58
    .
    Defendant claims a series of events demonstrate his trial counsel's
    ineffectiveness. He first met his trial counsel – retained by his cousin – while
    entering the courthouse. Counsel advised him he had already negotiated a plea
    agreement with the State that would require him to testify against his co-
    defendant. Because defendant had no prior plea discussions with counsel, he
    rejected the offer, advancing that the offer would have required him to testify
    falsely, and that he "feared the repercussions that would occur to him for
    cooperating with the police."      The rejection of the plea offer, defendant
    continues, negatively impacted counsel's "motivation to provide a vigorous
    defense," contending counsel did not: meet or communicate with him; "discuss
    any of the facts of the case" with him; review discovery with him; or prepare
    him to testify at trial.
    A "defendant must allege specific facts and evidence supporting his
    allegations," State v. Porter, 
    216 N.J. 343
    , 355 (2013), and "do more than make
    bald assertions that he was denied the effective assistance of counsel ," State v.
    Cummings, 
    321 N.J. Super. 154
    , 170 (App. Div. 1999). Defendant's general
    allegations of counsel's failures do not establish a prima facie case of counsel's
    A-3197-16T2
    9
    ineffectiveness. Further, defendant failed to meet the second Strickland-Fritz
    prong by establishing prejudice engendered by counsel's alleged failures. He
    did not demonstrate how counsel's failure to discuss the case or review discovery
    impacted the trial. Nor did he tell how counsel's failure to prepare him for trial
    negatively affected his testimony.       Defendant's additional assertions, that
    counsel failed to investigate and present any evidence other than defendant's
    testimony, are likewise bald-faced and devoid of any details of what counsel
    failed to investigate and what other evidence should have been presented.
    We agree with the PCR judge that the record belies defendant's contention
    that counsel was not fully engaged during trial. Defendant cites eight portions
    of the trial transcript as examples of the weakness of the State's case. Ironically,
    in six of those instances defendant's counsel's cross-examination of the victim
    elicited the damaging information cited by defendant. Our thorough review of
    the record reveals trial counsel was prepared, engaged and highly effective. As
    conceded by defendant in his merits brief, he was acquitted on five counts, a
    result attributable to counsel's advocacy.
    We find no merit in defendant's contention that counsel "disappeared"
    during proceedings. During one pretrial hearing, prompted by a question from
    defense counsel, the State's witness who introduced the tapes of defendant's
    A-3197-16T2
    10
    statements admitted that a tape malfunction required the use of a second tape
    that the prosecutor had to retrieve. When the prosecutor returned with the
    second tape, and wished to resume his questioning, the court noted defendant's
    counsel had not yet returned. In the time the prosecutor took to say, "Oh," and
    the time co-defendant's counsel took to request a proffer, the prosecutor
    acknowledged counsel's return. Counsel did not disappear; he left during a
    break. Moreover, he did not miss any of the proceedings.
    Counsel also left during the testimony of a witness called by co-
    defendant's counsel outside of the jury's presence.        That testimony, as
    acknowledged by co-defendant's counsel, did not pertain to defendant's case but
    to alleged pressure placed on the co-defendant – who was about to testify before
    the jury that day – by a witness's presence in the courtroom. Defendant's
    counsel's absence had no impact whatsoever on his representation of defendant.
    During the third "disappearance" defendant alleges, defense counsel had
    already made a lengthy argument in support of defendant's motion for a new
    trial and a lengthy sentencing argument.       Apparently, counsel left after
    defendant had already been sentenced. Sentencing proceedings against his co-
    defendant followed.    After that proceeding concluded, defendant, who was
    obviously held in court after the conclusion of his sentencing, questioned the
    A-3197-16T2
    11
    court about bail.    Defendant's sua sponte address was not made during a
    continuing court proceeding. There was no reason to expect trial counsel's
    presence.
    As it concerns his trial counsel's representation, defendant has failed to
    meet both prongs of the Strickland-Fritz standard. We also determine, based on
    our review of the record, the PCR judge correctly denied an evidentiary hearing
    because defendant did not establish a prima facie case in support of his PCR
    application by demonstrating "the reasonable likelihood of succeeding" under
    the Strickland test. State v. Preciose, 
    129 N.J. 451
    , 463 (1992); R. 3:22-10(b).
    Defendant does not clearly indicate if trial counsel who filed the initial
    notice of appeal, or appellate counsel from the Office of the Public Defender
    who represented defendant on his initial appeal, was ineffective. He argues his
    appellate counsel – one or the other – failed to appeal the trial court's admission
    of defendant's tape-recorded statement to law enforcement authorities at trial.
    After a lengthy Miranda7 hearing – jointly addressing both defendants'
    motions to suppress their separate statements – during which five witnesses,
    including defendant, testified, defendant's trial counsel argued defendant's
    statement should be suppressed because he was in custody, and repeatedly
    7
    Miranda v. Arizona, 
    384 U.S. 436
     (1966).
    A-3197-16T2
    12
    asserted that he did not wish to make a statement and wanted an attorney present
    if he said anything. Counsel also argued, despite the State's entry into evidence
    of a consent to questioning form and a Miranda-rights waiver form, both signed
    by defendant, coercive police practices negated the voluntariness of defendant's
    statement. Co-defendant's counsel also argued against the admission of his
    client's statement. The trial court denied both defendants' motions, crediting
    both defendants' acknowledgments that their statements were voluntary. The
    court found the defendants: were not under arrest but "were free to terminate the
    questioning and to leave at any time they chose"; understood and waived the
    Miranda rights of which they were informed by police; and gave voluntary
    statements.
    We affirmed the trial court's denial of co-defendant's motion, determining
    its "findings were supported by ample credible evidence." Wilson, slip op. at 4
    (citing State v. Johnson, 
    42 N.J. 146
    , 162 (1964)). Likewise, we determine the
    judge's findings regarding defendant's motion were supported by the testimonial
    and documentary evidence presented at the Miranda hearing. There is no reason
    to disturb those findings on appeal. State v. Elders, 
    192 N.J. 224
    , 243-44 (2007).
    As such, defendant failed to establish appellate counsel was ineffective
    for failing to challenge the admission of his statement on appeal. Defendant has
    A-3197-16T2
    13
    not shown a "reasonable probability" that the alleged deficient performance
    affected the outcome. Fritz, 
    105 N.J. at 58
    .
    Affirmed.
    A-3197-16T2
    14