STATE OF NEW JERSEY VS. NORMAN REID (93-07-0566, OCEAN COUNTY AND STATEWIDE) ( 2021 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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-4787-18
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    NORMAN REID, a/k/a
    LORD BURNEY,
    Defendant-Appellant.
    _______________________
    Submitted January 27, 2021 – Decided March 2, 2021
    Before Judges Alvarez and Geiger.
    On appeal from the Superior Court of New Jersey, Law
    Division, Ocean County, Indictment No. 93-07-0566.
    Joseph E. Krakora, Public Defender, attorney for
    appellant (Karen A. Lodeserto, Designated Counsel, on
    the brief).
    Bradley D. Billhimer, Ocean County Prosecutor,
    attorney for respondent (Samuel Marzarella, Chief
    Appellate Attorney, of counsel; Dina R. Khajezadeh,
    Assistant Prosecutor, on the brief).
    Appellant filed a pro se supplemental brief.
    PER CURIAM
    Defendant Norman Reid appeals from an April 11, 2019 order dismissing
    his petition for post-conviction relief, which included a request to withdraw his
    guilty plea, without an evidentiary hearing. We affirm.
    We derive the following facts from the record.        On July 20, 1992,
    Lakewood police officers observed defendant driving.         The officers knew
    defendant did not possess a driver's license and performed a traffic stop. Wilbur
    Hollins was his passenger. When the officers asked defendant for consent to
    search the car, he agreed, stating: "You can look through my car cause I ain't
    carrying anything." The officer found ten bags of suspected cocaine under the
    driver's seat.   A field test was negative, and defendant was released.         A
    subsequent lab test confirmed the substance was cocaine.
    In July 1993, an Ocean County grand jury returned Indictment 93-07-566,
    which charged defendant with:        third-degree possession of a controlled
    dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree
    possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-
    5(b)(3) (count two); and third-degree possession of a CDS with intent to
    distribute in a school zone, N.J.S.A. 2C:35-5(a)(1) and 2C:35-7 (count three).
    A-4787-18
    2
    On October 29, 1993, defendant pled guilty to count three. On December
    10, 1993, defendant was sentenced in accordance with the plea agreement to a
    three-year term to run concurrent with a sentence he was serving. The other
    counts were dismissed. Defendant did not file a direct appeal.
    On November 13, 1996, an Ocean County grand jury returned Indictment
    No. 96-11-1122, charging defendant with first-degree murder, N.J.S.A. 2C:11-
    3(a)(1) and (2), and several related weapons offenses. On January 16, 1997, a
    jury convicted defendant of the lesser-included offense of aggravated
    manslaughter and all three weapons offenses. Pertinent to this appeal, the trial
    court sentenced defendant to an extended term of life imprisonment with a
    twenty-five-year period of parole ineligibility pursuant to N.J.S.A. 2C:43-3(a)
    and N.J.S.A. 2C:43-7, based on defendant's previous conviction of possession
    of a CDS with intent to distribute in a school zone. Following a direct appeal,
    several rounds of sentencing remands, four unsuccessful PCR petitions, and an
    unsuccessful federal petition for habeas corpus, defendant's aggravated
    manslaughter conviction and sentence remained unchanged.
    On March 10, 2016, defendant filed his first PCR petition on the third-
    degree school zone possession with intent to distribute conviction under
    A-4787-18
    3
    Indictment 93-07-9566.       In his petition, defendant alleged the following
    supporting facts:
    I was driving my sister's car and was stopped by the
    police. My passenger put drugs under the front
    passenger seat without my knowledge. I gave the
    police permission to search the car because I was not
    aware of the drugs put under the seat by my passenger.
    I plead guilty because I was already serving a four year
    prison term and my lawyer convinced me that it would
    be beneficial to plead guilty to a three[-]year prison
    term running concurrent with the previously imposed
    four[-]year prison term and avoid being found guilty at
    trial, exposing myself to an extended term.
    On March 16, 2016, the PCR court dismissed the petition as time-barred
    pursuant to Rule 3:22-12(a)(1). The court found the petition was filed almost
    twenty-three years after the judgment of conviction was entered. The court
    further found there were "no sufficient extenuating circumstances that would
    result in a fundamental injustice if the time bar were to be upheld." The court
    also determined that the "petition [did] not allege sufficient good cause for
    counsel to be assigned." Defendant appealed.
    On June 1, 2017, we sua sponte reversed and remanded pursuant to Rule
    3:22-6(a) because defendant was not assigned counsel for this first PCR. State
    v. Reid, No. A-4921-15 (App. Div. June 1, 2017). "We express[ed] no view as
    to the timeliness or merits of defendant's petition." Id. at 2.
    A-4787-18
    4
    On remand, counsel was appointed to represent defendant. The amended
    petition stated:
    2. On or about December 17, 1992, I advised an
    investigator of the Office of the Public Defender that
    the cocaine that was found . . . under the passenger seat
    and belonged to Wilbur Hollins.            The attached
    memorializes the conversation I had. DV 1. Despite
    advising the investigator, I was not advised of any
    investigation that occurred by my trial counsel to verify
    my account. I never reviewed any statement of Mr.
    Hollins until I reviewed his certification of October 26,
    2017 as set forth in . . . in my PCR counsel's brief. Had
    I been aware that a signed statement could have been
    obtained, I would not have entered into the plea
    agreement and would have insisted on proceeding to
    trial.
    3. I only entered into the plea agreement because my
    trial counsel advised me to do so. I was already serving
    a four[-]year prison term and trial counsel convinced
    me to accept the offer tendered by the State. He
    explained the sentence I would receive would run
    concurrent to the one I was serving. He explained that
    if I went to trial, I risked being found guilty and thus
    being exposed to an extended term of incarceration. I
    entered into the plea agreement even though I was not
    guilty of any of the charges set forth in the subject
    indictment.
    [(citations omitted).]
    This was the first time that defendant alleged that trial counsel failed to
    investigate a witness or that trial counsel forced him to plead guilty.
    A-4787-18
    5
    The State moved to dismiss the petition as time barred, arguing the
    prejudice would be insurmountable if the conviction were set aside because it
    had been over twenty-five years since defendant was charged. The State pointed
    out that neither the physical evidence nor the court documents, including the
    plea and sentencing transcripts, can be obtained due to the age of the case.
    Moreover, the police officers would be called upon to remember facts from a
    1992 traffic stop.
    Following oral argument, Judge Guy P. Ryan dismissed defendant's
    petition by order dated April 11, 2019. In an accompanying twenty-three-page
    written opinion, the judge reviewed the factual background, procedural history,
    and submissions of the parties.
    Regarding the 1993 indictment, the judge found that defendant "received
    the complete discovery on the 1993 CDS indictment again in 2012 when he filed
    his first PCR for [the homicide indictment]." The file "included proof he spoke
    to a Public Defender's Office investigator and that his attorney never questioned
    Mr. Hollins." Defendant knew this in 2012.
    The judge found the petition was filed twenty-three years after the
    conviction and almost eighteen years after the five-year filing period expired.
    Therefore, absent excusable neglect and fundamental injustice it was time-
    A-4787-18
    6
    barred.   Defendant argued his incarceration for the past twenty-five years
    constituted excusable neglect.
    The judge concluded that defendant's "significant filing delay would
    obviously prejudice the State if it was required to reconstruct these matters for
    trial." The judge found defendant had "provided nothing to explain why he ha[d]
    failed to raise his claims against his trial counsel for almost a quarter of a
    century. Furthermore, incarceration does not rise to the level of 'excusable
    neglect.'" The judge found that defendant "admits he received full discovery for
    the 1993 Indictment again in 2012 while pursuing a different PCR." He also
    found that Hollins's statement was not newly discovered evidence since
    defendant "easily could have obtained or attempted to obtain a statement from
    Hollins since [defendant] allegedly knew Hollins had true ownership over the
    cocaine." The judge concluded that defendant could not prove the "inexcusable
    neglect" or "fundamental injustice" needed to avoid the time-bar imposed by
    Rule 3:22-12(a)(1).
    The judge also denied defendant's application to withdraw his guilty plea,
    finding Hollins' statement was not "a colorable claim of innocence" under State
    v. Slater, 
    198 N.J. 145
     (2009). Finally, the judge found defendant's claim that
    trial counsel forced him to plead guilty was a "bald assertion lacking any merit."
    A-4787-18
    7
    Despite having the burden of proof, defendant presented "nothing more than an
    untimely, self-serving declaration."     The judge found it was plea counsel's
    "obligation to inform [defendant] he faced a longer sentence or possible
    consecutive sentence if convicted at trial. Such advice is not ineffective." The
    judge also found that defendant indicated on his plea form that he was satisfied
    with the advice he received from counsel and had committed the offense to
    which he was pleading guilty.
    The judge found defendant's claims were time-barred, concluding that
    "[f]ailing to appeal his sentence or to solicit a certification by Wilbur Hollins in
    [twenty-five] years, because he was allegedly unaware one could have been
    obtained, [did] not constitute 'excusable neglect' under [Rule] 3:22-
    12(a)(1)(A)." The judge also determined that enforcing the time bar would not
    cause a manifest injustice.
    The judge rejected defendant's claim that Hollins's statement was newly
    discovered evidence since defendant "easily could have obtained or attempted
    to obtain a statement from Hollins since [defendant] allegedly knew" whose
    cocaine was seized. The judge noted that defendant admitted in his letter to the
    court that he made the Public Defender's Office aware of Hollins's ownership of
    the cocaine in December 1992.
    A-4787-18
    8
    Regarding the request to withdraw the guilty plea, the judge explained that
    "a defendant must prove 'that there is a reasonable probability that, but for
    counsel's errors, [he or she] would not have pled guilty and would have insisted
    on going to trial.'" State v. Gaitan, 
    209 N.J. 339
    , 351 (2012) (alteration in
    original) (quoting State v. Nuñez-Valdéz, 
    200 N.J. 129
    , 139 (2009)). Defendant
    must also show that "a decision to reject the plea bargain would have been
    rational under the circumstances." Padilla v. Kentucky, 
    559 U.S. 356
    , 372
    (2010). Moreover, "[a] defendant is not entitled to benefit from a strategic
    decision to withhold evidence." State v. Ways, 
    180 N.J. 171
    , 192 (2004).
    The judge found there were no witnesses that defendant was unaware of.
    Defendant "willingly signed the plea forms indicating he was guilty." The judge
    addressed each of the four plea withdrawal factors adopted in State v. Slater,
    
    198 N.J. 145
     (2009). and they all weighed against granting withdrawal of the
    guilty plea. The judge also found that defendant did not satisfy the second prong
    of the test which requires that "the new evidence must have been discovered
    after completion of trial and must not have been discoverable earlier through the
    exercise of reasonable diligence." State v. Nash, 
    212 N.J. 518
    , 550 (2013)
    (quoting Ways, 
    180 N.J. at 192
    ). This appeal followed.
    Defendant raises the following points for our consideration:
    A-4787-18
    9
    POINT ONE
    THE PCR COURT ERRED IN DENYING
    DEFENDANT AN EVIDENTIARY HEARING
    BECAUSE TESTIMONY IS NEEDED REGARDING
    THE CIRCUMSTANCES SURROUNDING MR.
    REID'S DECISION TO PLEAD GUILTY UNDER
    INDICTMENT 93-07-0566.
    POINT TWO
    THE PCR COURT ERRED IN DENYING
    DEFENDANT AN EVIDENTIARY HEARING
    BECAUSE TESTIMONY IS NEEDED REGARDING
    TRIAL COUNSEL'S FAILURE TO CONTACT MR.
    HOLLINS.
    POINT THREE
    THE FIVE-YEAR TIME BAR SHOULD BE
    RELAXED DUE TO EXCUSABLE NEGLECT
    BASED   ON  THE  NEWLY DISCOVERED
    EVIDENCE CONTAINED IN MR. HOLLINS'
    STATEMENT.
    Defendant filed a pro se supplemental brief in which he argues:
    POINT ONE
    THIS PETITION IS NOT TIME BARRED AS IT
    FALLS UNDER [RULE] 3:22-12(a)(1)(B); [Rule]
    (a)(2)(B); AS IT WAS FILED WITHIN THE ONE
    YEAR       OF   THE  DISCOVERY    OF  THE
    CERT[]IFICATION      OF   MR.    HOLLINS[']
    ADMISSION.
    A-4787-18
    10
    POINT TWO
    [DEFENDANT]       DEMONSTRATED          HIS
    ENTITLEMENT TO PCR UNDER ALL THE
    FOLL[O]WING[] STANDARDS, [RULE] 3:20-2;
    [RULE] 3:21-1; [RULE] 3:22-2(a)[,] (d) AND
    FUNDAMENTAL INJUSTICE.
    We are unpersuaded by any of these arguments and affirm substantially
    for the reasons set forth in Judge Ryan's comprehensive and well -reasoned
    written opinion. We add the following comments.
    "The Sixth Amendment of the United State Constitution and Article I,
    paragraph 10 of the New Jersey Constitution require that a defendant receive
    'the effective assistance of counsel' during a criminal proceeding."     State v.
    Porter, 
    216 N.J. 343
    , 352 (2013).
    A PCR petitioner is not automatically entitled to an evidentiary hearing.
    See State v. Cummings, 
    321 N.J. Super. 154
    , 170 (App. Div. 1999). "[Rule]
    3:22 recognizes judicial discretion to conduct such hearings." 
    Ibid.
    A defendant shall be entitled to an evidentiary hearing
    only upon the establishment of a prima facie case in
    support of post-conviction relief, a determination by the
    court that there are material issues of disputed fact that
    cannot be resolved by reference to the existing record,
    and a determination that an evidentiary hearing is
    necessary to resolve the claims for relief. To establish
    a prima facie case, defendant must demonstrate a
    reasonable likelihood that his or her claim, viewing the
    A-4787-18
    11
    facts alleged in the light most favorable to the
    defendant, will ultimately succeed on the merits.
    [R. 3:22-10(b).]
    To determine whether a prima facie claim of ineffective assistance of
    counsel is present, the claim must be evaluated under the two-prong Strickland
    test, where "a reviewing court must determine: (1) whether counsel's
    performance 'fell below an objective standard of reasonableness,' and if so, (2)
    whether there exists a 'reasonable probability that, but for counsel's
    unprofessional error, the result of the proceeding would have been different.'"
    State v. Castagna, 
    187 N.J. 293
    , 313-14 (2006) (quoting Strickland v.
    Washington, 
    466 U.S. 668
    , 688, 694 (1984) (internal citation omitted)).
    As the PCR court did not conduct an evidentiary hearing on the claims
    that defendant raises in this appeal, we "conduct a de novo review." State v.
    Jackson, 
    454 N.J. Super. 284
    , 291 (App. Div. 2018) (quoting State v. Harris,
    
    181 N.J. 391
    , 421 (2004)).
    Rule 3:22-12 establishes a five-year filing deadline for first PCR petitions.
    State v. Goodwin, 
    173 N.J. 583
    , 593 (2002). "In the usual case '[t]he five-year
    period commences from the time of the conviction or the time of the sentencing,
    whichever the defendant is challenging.'" State v. Milne, 
    178 N.J. 486
    , 491
    (2004) (alteration in original) (quoting Goodwin, 
    173 N.J. at 594
    ). The Court
    A-4787-18
    12
    recognized that "[t]he five-year time limit is not absolute[,]" and may be relaxed
    if the defendant demonstrates "that the delay was due to the defendant's
    excusable neglect or if the 'interests of justice' demand it." Id. at 492 (quoting
    Goodwin, 
    173 N.J. at 594
    ).
    The five-year period under Rule 3:22-12 "is neither stayed nor tolled by
    appellate or other review proceedings." Pressler & Verniero, Current N.J. Court
    Rules, cmt. 2 on R. 3:22-12 (2021). Nor will a defendant's pursuit of federal
    habeas corpus relief "extend the time frame within which to file a PCR petition."
    Milne, 
    178 N.J. at
    494 (citing Pressler, Current N.J. Court Rules, cmt. on R.
    3:22-12 (2004)).
    When a first PCR petition is filed more than five years after the entry of
    the judgment of conviction,
    a PCR judge has an independent, non-delegable duty to
    question the timeliness of the petition, and to require
    that defendant submit competent evidence to satisfy the
    standards for relaxing the rule's time restrictions
    pursuant to Rule 3:22-12. Absent sufficient competent
    evidence to satisfy this standard, the court does not
    have the authority to review the merits of the claim.
    [State v. Brown, 
    455 N.J. Super. 460
    , 470 (App. Div.
    2018), certif. denied, 
    236 N.J. 374
     (2019).]
    The five-year deadline for filing for first petitions is subject to extension
    "due to [a] defendant's excusable neglect," where "there is a reasonable
    A-4787-18
    13
    probability that if the defendant's factual assertions were found to be true
    enforcement of the time bar would result in a fundamental injustice." R. 3:22-
    12(a)(l)(A).
    "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.
    Afanador, 
    151 N.J. 41
    , 52 (1997). There are sound reasons for the time-bar
    imposed by Rule 3:22-12:
    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
    or unattainable.
    [Milne, 
    178 N.J. at 491
     (quoting State v. Mitchell, 
    126 N.J. 565
    , 575-76 (1992) (alteration in original)).]
    "Absent compelling, extenuating circumstances, the burden to justify filing a
    petition after the five-year period will increase with the extent of the delay." Id.
    at 492 (quoting Afanador, 
    151 N.J. at 52
    ).
    Defendant has not shown exceptional circumstances justifying filing his
    PCR petition more than twenty-two years after his judgment of conviction. He
    demonstrated neither excusable neglect nor that enforcing the time bar would
    A-4787-18
    14
    result in a fundamental injustice. The inordinate, decades-long delay in filing
    the petition surely prejudices the State's ability to prosecute the case at this late
    date. Nor has defendant shown that the newly discovered evidence could not
    have been discovered earlier by exercising reasonable diligence. Hollins was
    the only other occupant of the car. Defendant knew who he was. In short, there
    is no basis to exempt defendant from the time limit imposed by Rule 3:22-
    12(a)(1). An evidentiary hearing was not warranted.
    Affirmed.
    A-4787-18
    15