(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that,
in the interests of brevity, portions of any opinion may not have been summarized).
Argued November 29, 1994 -- Decided May 4, 1995
HANDLER, J., writing for a unanimous Court.
In November 1977, D.D.M. pled guilty to an Ocean County indictment that charged him with sexual
offenses against his seven-year-old son. At the plea hearing, D.D.M. was reluctant to acknowledge the actual
commission of misconduct as required by Court Rule 3:9-2. After the parties conducted an unrecorded side-bar
conference with the judge, D.D.M.'s plea was accepted. The judge ordered an assessment of D.D.M. by the
Adult Diagnostic Center at Avenel (Avenel).
On December 1, 1977, before the completion of the Avenel report, D.D.M. was charged in a Monmouth
County indictment with sexual offenses against a three-year-old girl.
Avenel concluded that D.D.M. was a compulsive and repetitive sex offender in its report on the Ocean
County offenses.
D.D.M. pled guilty to two counts of the Monmouth indictment on February 27, 1978. He was again
referred to Avenel for a report.
On March 13, 1978, D.D.M. was sentenced to Avenel on the Ocean County offense, for a term not to
exceed ten years. Because statutory and case law mandated a fifteen-year maximum term, D.D.M.'s sentence
was illegal. The sentence was corrected on April 10, 1978. D.D.M. appealed the sentence, but that appeal was
dismissed on November 30, 1978, for lack of prosecution.
On May 8, 1978, Avenel submitted its report in the Monmouth County matter, recommending that
D.D.M. be sentenced to that facility. At that time, D.D.M. was already serving his Ocean County sentence at
Avenel.
On May 18, 1978, D.D.M. was sentenced to two concurrent three-year terms for the Monmouth County
offenses. That sentence was made consecutive to the Ocean County sentence. D.D.M. did not appeal the
Monmouth County sentence.
Beginning in 1985, D.D.M. filed several post-conviction relief (PCR) applications. On December 23,
1993, the Appellate Division reversed the denial of PCR relief in the Monmouth County case and remanded the
matter to have the Monmouth and Ocean County sentences run concurrently. The Appellate Division affirmed
the denial of PCR in the Ocean County matter. The net result was that D.D.M. was eligible for immediate
release from Avenel.
The Supreme Court granted the State's petition for certification and stayed the judgment of the
Appellate Division. D.D.M.'s cross-petition for certification from the affirmance of the Ocean County sentence
was also granted.
HELD: Defendant is not entitled to post-conviction relief on a claim of illegality of his sentence. Defendant's
post-conviction relief applications, filed more than seven years after his conviction and sentencing, were time-barred under Rule 3:22-4.
1. Under the circumstances, the trial court's failure to spell out the factual basis of D.D.M.'s plea in Ocean
County did not constitute an improper acceptance of his guilty plea sufficient to invalidate his conviction and to
render his sentence illegal. (pp. 12-15)
2. The evidence in the record does not demonstrate that the plea in Ocean County was improvidently entered
or that the sentence ultimately imposed violated the terms of the plea agreement. (pp. 15-17)
3. D.D.M.'s first PCR application in Ocean County was filed in 1985, more than seven years after his sentencing.
Not having established excusable neglect, his application was time-barred. (p. 17)
4. D.D.M. waited eleven years before claiming that he expected his Monmouth and Ocean County sentences
to be concurrent rather than consecutive. That long delay negates any inference that the sentences as imposed
were not in accordance with D.D.M.'s expectations. (pp. 17-19)
5. Defendant has not presented the compelling and extenuating circumstances necessary to demonstrate
excusable neglect for the delay in the filing of the Monmouth County PCR. Further, the record does not support
D.D.M.'s contention that he was promised a ten-year prison term in exchange for his Ocean County plea. (pp.
21-24)
The judgment of the Appellate Division is AFFIRMED IN PART, REVERSED IN PART.
CHIEF JUSTICE WILENTZ and JUSTICES POLLOCK, O'HERN, GARIBALDI, and STEIN join in
JUSTICE HANDLER's opinion. JUSTICE COLEMAN did not participate.
SUPREME COURT OF NEW JERSEY
A-32/
33 September Term 1994
STATE OF NEW JERSEY,
Plaintiff-Appellant
and Cross-Respondent,
v.
D.D.M.,
Defendant-Respondent
and Cross-Appellant.
Argued November 29, 1994 -- Decided May 4, 1995
On certification to the Superior Court,
Appellate Division.
Craig V. Zwillman, Deputy Attorney General,
argued the cause for appellant and cross-respondent (Deborah T. Poritz, Attorney
General of New Jersey, attorney).
Sara K. Walsh, Designated Counsel, argued the
cause for respondent and cross-appellant
(Susan L. Reisner, Public Defender,
attorney).
The opinion of the Court was delivered by
HANDLER, J.
This appeal involves two petitions for post-conviction relief. The petitions relate to sentences on unrelated convictions for sexual offenses against young children committed in different counties. Each petition was determined and denied
by the court that imposed the original sentence. Petitioner
filed separate appeals from the respective trial court judgments,
and the Appellate Division consolidated the appeals. Considering
the underlying sentences to be interrelated and believing that
one sentence was illegal and that both sentences in combination
were unjust, the Appellate Division granted partial relief.
Under the Rules of Court, petitions for post-conviction
relief are subject to time and procedural limitations that, if
applicable, would foreclose relief. In light of the decision of
the Appellate Division, we are asked to determine if defendant is
entitled to post-conviction relief on grounds of illegality in
the imposition of the original sentences or manifest injustice.
The petitions for post-conviction relief (sometimes referred to as "PCR") relate to criminal proceedings that originated in Ocean County and Monmouth County almost twenty years ago.
We deal first with the indictments, pleas and sentences.
On June 30, 1977, Ocean County Indictment No. 491-76 charged defendant (also referred to as "petitioner") with willfully committing an act of indecency towards and tending to debauch the morals and manners of D.M., contrary to N.J.S.A. 2A:114-2 (incestuous conduct between parent and child). Specifically, defendant was accused of committing fellatio on his seven-year-old son. On August 10, 1977, defendant entered a plea of not guilty by mail.
On November 1, 1977, defendant entered a retraxit plea of guilty to the Ocean County offense. The "Statement by Defendant," completed and signed by both defendant and his attorney, stated that "the court could impose a sentence of not more than 15 years or a fine of not more than $1,000 or both." The Statement also underscored "[t]he judge is not bound by those promises. If he decides not to follow the recommendations, you will be allowed to take back your guilty plea and plead not guilty."
The transcript of the plea hearing indicates defendant's desire to plead guilty; however, the defendant was reluctant to acknowledge the actual commission of misconduct in accordance with Rule 3:9-2. The court explained the necessity for the defendant to provide a factual basis for the plea. At that point, the county prosecutor requested a side-bar conference, which, contrary to Rule 1:2-2, was neither recorded verbatim nor its substance noted on the record. Following that side-bar conference, the trial court accepted defendant's plea with no further statement by defendant regarding his commission of the alleged act.
Thereafter, the court ordered a presentence report and, in compliance with the Sex Offender Act, N.J.S.A. 2A:164-3, the court requested that an examination be performed by the Adult Diagnostic Center at Avenel ("Avenel").
Before the completion of the Avenel report, defendant was
charged, on December 1, 1977, with the commission of sex offenses
in Monmouth County. Monmouth County Indictment No. 379-77
charged defendant with feloniously assaulting A.B., a three year-old girl, with intent to carnally abuse her, contrary to N.J.S.A.
2A:90-2 (count one); with inducing and forcing the girl to do and
submit to acts tending to debauch and impair her morals,
specifically, placing his tongue in the area of her vagina, and
exposing his penis to her, contrary to N.J.S.A. 2A:96-3 (count
two); with encouraging, causing, and contributing to the
delinquency of the three-year-old girl by performing the acts
alleged in count two, contrary to N.J.S.A. 2A:96-4 (count three);
and committing an act of lewdness by openly, lewdly, willfully,
and unlawfully exposing his penis in the presence of the three-year-old girl, contrary to N.J.S.A. 2A:115-1 (count four).
Thereafter, in Ocean County, Avenel returned its report,
which acknowledged that defendant had "a history of a repetitive
and compulsive pattern of aberrant sexual behavior," but
recommended probation for the Ocean County offense.
Subsequently, on February 27, 1978, defendant pled guilty to two
of the Monmouth County offenses. As a result, the Ocean County
probation officer, on March 9, 1978, supplemented the presentence
report with the Monmouth County plea agreement, and recommended
that the court commit defendant to the Avenel facility for the
Ocean County offense.
On March 13, 1978, Judge Huber of Ocean County sentenced
defendant to an indeterminate term at Avenel not to exceed ten
years for the Ocean County offense. No transcript of the
sentencing hearing survives. Because N.J.S.A. 2A:114-2 mandated
a fifteen-year maximum term of imprisonment and State v. Andrews,
105 N.J. Super. 62, 65 (App. Div. 1969), holds that the statute
precludes the court from imposing a maximum term different from
the term set by statute, the ten-year sentence was illegal.
Defendant therefore was afforded a resentencing hearing.
At the resentencing hearing, on April 10, 1978, defendant
urged that he should be resentenced to a probationary term
because the treatment he was being afforded at Avenel was
inadequate and less intense and productive than the out-patient
treatment that he had been receiving prior to his incarceration.
Significantly, no argument was made that the plea bargain was
contingent on the ten-year sentence originally imposed. Nor was
any request or application made by defendant to withdraw his
guilty plea. Correcting the illegal sentence in conformity with
N.J.S.A. 2A:114-2, Judge Huber resentenced defendant to an
indeterminate term at Avenel, not to exceed fifteen years.
Defendant filed a Notice of Appeal on April 24, 1978, which was
dismissed by the Appellate Division in November 30, 1978.
After entering into the Ocean County plea agreement, but
prior to sentencing, defendant decided to plead guilty to the
Monmouth County indictment, which he did on February 27, 1978.
Pursuant to the "Statement by Defendant," defendant pled to two
counts of the indictment, each of which carried a maximum term of
three years, and acknowledged that the court could sentence him
to a term of not more than six years plus a $2,000 fine. The
prosecutor agreed to recommend dismissal of the remaining two
counts and the imposition of concurrent sentences. Specifically,
according to the Statement, the sentence was to be "concurrent-if
not a sex offender." The Statement further indicates that "[t]he
judge is not bound by those promises. If he decides not to
follow the recommendation, you will be allowed to take back your
guilty plea and plead not guilty." There is no indication of
whether the term "concurrent" denoted that the sentences
contemplated for the Monmouth County offenses were to run
concurrently with the sentence to be imposed on the Ocean County
offense or whether the term "concurrent" was intended to ensure
only that the sentences on each of the two counts of the Monmouth
County indictment were to run concurrently with each other.
Again, because the Monmouth County offenses were subject to
the Sex Offender Act, Judge Lane ordered that Avenel examine
defendant and prepare a report. On May 8, 1978, Avenel submitted
its report to Judge Arnone, which recommended that defendant be
committed to Avenel. It should be emphasized that at the time of
this second examination and report, defendant had been sentenced
in Ocean County and was already incarcerated at Avenel for the
Ocean County offense.
On May 19, 1978, more than one month after the correction of
defendant's Ocean County sentence, Judge Arnone sentenced
defendant to concurrent three-year terms on the two Monmouth
counts; however, he specified that this sentence was to run
consecutively to the Ocean County sentence. In addition, prior
to sentencing, defendant and his attorney acknowledged reading an
informational statement that notified defendant of his right to
contest Avenel's recommendation that he be confined at Avenel and
of the potential distinctions regarding parole consequences when
sentenced to an indeterminate term at a psychiatric facility,
Avenel, as opposed to an ordinary penal institution. Defendant
chose not to contest Avenel's report or the sentence imposed.
Judge Arnone specifically advised defendant that he had forty-five days to appeal his sentence if he was not satisfied, and
thereafter dismissed the two other counts of the Monmouth County
indictment (counts 1 and 3). Defendant did not directly appeal
from his convictions or sentences for the Monmouth County
offenses.
We deal next with the post-sentencing procedures, including the successive petitions for post-conviction relief.
With respect to the Ocean County conviction and sentence, defendant, on June 3, 1985, filed a pro se petition for post-conviction relief and requested assignment of counsel. On June 21, 1985, in apparent violation of Rule 3:22-6(a), the court denied petitioner's request for counsel. Subsequently, defendant's petition for post-conviction relief was denied. The
record, however, does not disclose the grounds for petitioner's
1985 PCR application. In 1987, defendant submitted an
application for resentencing. On December 28, 1988, a
Resentencing Panel denied defendant's application.See footnote 1 In 1988,
defendant appealed nunc pro tunc the denial of the 1985 PCR
application and the denial of his request for assignment of
counsel. The Appellate Division dismissed petitioner's appeal
without explanation. On February 21, 1989, this Court denied
petitioner's petition for certification.
114 N.J. 522.
In 1991, defendant again petitioned for post-conviction
relief from the Ocean County sentence. On September 13, 1991,
Judge Campbell denied the PCR petition. On December 12, 1991,
the Appellate Division granted petitioner's motion for leave to
appeal, as an indigent, the denial of his PCR petition.
With regard to the Monmouth County convictions and
sentences, on September 25, 1987, defendant came before a
Resentencing Panel. The Panel denied defendant's application for
resentencing without prejudice, stating that it could not
determine the sufficiency of defendant's sentence without the
transcript of the plea proceeding, which had been lost. No
further application was ever made. Subsequently, petitioner
filed a petition for post-conviction relief. On September 15,
1989, Judge Arnone denied the petition. Defendant then brought a
motion for reconsideration of the denial of post-conviction
relief, which Judge Arnone treated as a subsequent PCR
application. That petition was denied on February 16, 1990. On
May 3, 1990, the Appellate Division granted defendant's motion
for leave to appeal, as an indigent, the denial of his PCR
petition.
We next summarize the disposition of defendant's petitions for post-conviction relief by the Appellate Division.
As noted, the Appellate Division, in May 1990, granted defendant's motion for leave to appeal the denial of his Monmouth County PCR, and, in December 1991, granted defendant's motion for leave to appeal the denial of his Ocean County PCR. The Appellate Division granted petitioner's application to consolidate these appeals. On December 23, 1993, the Appellate Division, exercising its original jurisdiction pursuant to Rule 2:10-5, in an unreported decision, reversed the trial court's denial of the Monmouth County PCR petition and granted post-conviction relief from the Monmouth County sentences. Concomitantly, it affirmed the trial court's denial of petitioner's Ocean County PCR petition. The Appellate Division remanded the case to Monmouth County for a modification of its sentence to provide for the concurrency of the Monmouth County
sentences with the Ocean County sentence. Because petitioner had
served more than fifteen years of his sentence at the time of the
Appellate Division's decision, the effect of the Appellate
Division's judgment was petitioner's release from Avenel. That
judgment has been stayed by this Court.
The State filed a petition for certification contesting the
Appellate Division's grant of post-conviction relief from the
Monmouth County sentences. Petitioner filed a cross-petition for
certification contesting the Appellate Division's denial of post-conviction relief from the Ocean County sentence. On March 31,
1994, this Court granted both petitions for certification.
136 N.J. 31.
We now reverse the Appellate Division's grant of post-conviction relief from petitioner's Monmouth County sentences and
affirm the Appellate Division's denial of post-conviction relief
from petitioner's Ocean County sentence. We reinstate
petitioner's concurrent three-year sentences for the Monmouth
County crimes to be served consecutively to the Ocean County
sentence.
The standards for determining entitlement to post-conviction relief are governed by our Rules of Court. Rule 3:22-4 provides that grounds for PCR not raised in prior proceedings are barred unless the petitioner could not have reasonably raised the claim in any prior proceeding or "enforcement of the bar would result
in fundamental injustice" or "denial of relief would be contrary
to the Constitution of the United States or the State of New
Jersey." Rule 3:22-12 states:
A petition to correct an illegal sentence may
be filed at any time. No other petition
shall be filed pursuant to this rule more
than 5 years after rendition of the judgment
or sentence sought to be attacked unless it
alleges facts showing that the delay beyond
said time was due to defendant's excusable
neglect.
Further, Rule 1:1-2 permits that "any rule may be relaxed or
dispensed with by the court in which the action is pending if
adherence to it would result in an injustice."
In invoking these rules, we must consider, as did the
Appellate Division, whether the petitions for post-conviction
relief, considered separately or as interrelated, present grounds
on which such relief may be granted.
With regard to the Ocean County PCR application, the Appellate Division noted two improprieties. During the plea hearing, the trial court did not establish an adequate factual basis for the plea in accordance with Rule 3:9-2. The acceptance of the plea came after a side-bar conference, which was neither recorded verbatim nor its substance noted on the record. Petitioner alleges that during the side-bar conference he was promised a maximum sentence not to exceed ten years, and that he pled guilty to the Ocean County offense based on that agreement. Further, the Appellate Division intimated that the ten-year
sentence constituted a quid pro quo for the absence of a proper
factual basis for the plea.
Second, on realizing that Andrews, supra, prohibited the
imposition of a maximum term of less than fifteen years, Judge
Huber modified defendant's sentence to an indeterminate term not
to exceed fifteen years. The Appellate Division suggests that
the trial court erred by failing to inform defendant of his right
to retract his guilty plea at resentencing. Further, the
appellate court proposes that defense counsel failed to represent
defendant adequately because he did not advise defendant of his
right to retract his guilty plea at the resentencing.
We conclude that the record does not support these
determinations of the Appellate Division.
On November 1, 1977, at defendant's plea hearing for the
Ocean County offense, the court announced that defendant was
charged with "[i]ncestuous conduct between parent and child" and
that the statute prescribed punishment "by a fine of not more
than a thousand dollars, or of prison for not more than fifteen
years, or both." The following colloquy took place:
THE COURT: All right. It states here that you
willfully committed an act of indecency
towards [D.M.], intending to debauch his
morals, by licking his penis; is that
correct?
DEFENDANT: I don't recall the exact episode, but I
think that there's -- the spirit of the
charge is correct, yes.
THE COURT: Were you intoxicated?
DEFENDANT: No. It happened awhile ago, and I don't
remember the incident.
Perturbed by defendant's inability to recite a factual basis
for the plea, the county prosecutor requested a side-bar
conference, which, as noted, was conducted off-the-record. After
the side-bar, the court confirmed defendant's satisfaction with
his counsel's representation and explanation of the consequence
of pleading guilty to the criminal charge. Then, the following
conversation took place:
THE COURT: And do you understand that by pleading,
you admit the allegations of the charge
against you? Do you understand that?
DEFENDANT: (No response.)
THE COURT: That's what a plea is: Yes I'm guilty
of the offense, Judge.
DEFENDANT: I would like to enter that plea, but I
have a lot of conflicting things about
it.
THE COURT: Do you have any prior record?
DEFENDANT: Yes, I do, in the same area.
THE COURT: All right. Well, there's no magic to
the use of the words, "my plea is
voluntary," or "I accept the facts." I
think [defendant] understands completely
the nature of the offense. I think that
he's admitted the charges. He may have
reservations about them, but I don't
think there's any reservation about your
admission, is there?
DEFENDANT: No, sir. I'm not in any way trying to
deny the nature of the charge at all. I
am trying to -- I have a problem with
the particulars.
PROSECUTOR: But by "particulars," is it the date
that's bothering you as far as this
particular thing goes?
DEFENDANT: I'm not sure. There's so many things
that bother me about it. I don't --that's not, you know, particularly a
problem.
Defendant never actually recited the specific facts of the
incident serving as the basis for his guilty plea, as
contemplated by Rule 3:9-2. Nevertheless, the court accepted
defendant's plea as voluntary and noted his understanding of the
nature of the charge.
Although this Court recognizes that under some
circumstances, a court's sentence based on the acceptance of a
guilty plea without a factual basis may render the sentence
illegal within the meaning of Rule 3:22-12, State v. Mitchell,
126 N.J. 565 (1992), the trial court's failure to spell out the
factual basis of defendant's plea did not, under the
circumstances, constitute an improper acceptance of the guilty
plea sufficient to invalidate his conviction and to render his
sentence illegal. As noted in Mitchell:
Our procedural Rules do require a judge to
elicit a factual basis for a guilty plea. R.
3:9-2. As long as a guilty plea is knowing
and voluntary, however, a court's failure to
elicit a factual basis for the plea is not
necessarily of constitutional dimension and
thus does not render illegal a sentence
imposed without such a basis. A factual
basis is constitutionally required only when
there are indicia, such as a contemporaneous
claim of innocence, that the defendant does
not understand enough about the nature of the
law as it applies to the facts of the case to
make a truly "voluntary" decision on his own.
See McCarthy v. United States,
394 U.S. 459,
467,
89 S.Ct. 1166, 1171,
22 L.Ed.2d 418,
425-26 (1969); State v. Barboza,
115 N.J. 415, 421 & n. 1 (1989).
At the plea hearing, defendant did not express a contemporaneous
claim of innocence, and the record of the proceeding clearly
indicates defendant's satisfaction with his attorney's
representation, his acknowledgement of a prior record for similar
offenses, and his understanding of the crime and the significance
of his guilty plea.
Further, there is no support for the Appellate Division's
suggestion that the court accepted the guilty plea without a
proper factual basis as a quid pro quo for offering defendant a
sentence not to exceed ten years.
Many years later, in 1991, when defendant moved for post-conviction relief in Ocean County, he argued that his sentence of
"an indeterminate term not to exceed fifteen years" violated his
understanding of the original plea agreement, which, he claimed,
was made in contemplation of an indeterminate term not to exceed
ten years. That assertion, however, is contradicted by the
written plea agreement, which proposes only a sentence of fifteen
years, and is unsupported by the transcript of the plea hearing,
which does not refer or allude to the existence of a ten-year
sentence agreement or understanding. As duly noted by the
Appellate Division, "[n]either the transcript of the original
sentencing proceeding nor of the resentencing proceeding contains
any reference by defendant to any understandings he may have had
as to the ten-year term."
The Appellate Division found inferential support for
defendant's contention that he was promised a ten-year maximum
term. First, the court noted that, "it was, indeed, not the
regular practice at that time [1977] for the prosecutor's
recommended sentence to be stated in the agreement. Rather, the
agreement then typically referred to the maximum sentence
imposable." Second, the judge did originally impose a ten-year
maximum.
Although the trial judge sentenced defendant to an
indeterminate term not to exceed ten years and it may have been
the practice of prosecutors not to list the recommended sentence
in the plea agreement, we cannot ignore the fact that the
expressed plea agreement itself clearly calls for "an
indeterminate term not to exceed fifteen years." Further,
defendant had the opportunity to provide supporting affidavits
from any and all parties present at the side-bar conference to
confirm the existence of the alleged ten-year agreement. He has
not provided the courts with any such documentation. Moreover,
any inference of the existence of such an understanding is
further weakened by the fact that defendant did not mention the
alleged ten-year agreement when it was most natural and opportune
for him to have done so, at the Ocean County resentencing hearing
and at his Monmouth County sentencing. In short, the evidence of
record does not demonstrate that the plea was improvidently
entered or that the sentence ultimately imposed violated the
terms of the plea agreement.
We thus conclude that defendant's Ocean County sentence was
not illegal. Furthermore, defendant filed his first petition for
post-conviction relief from the Ocean County sentence on June 3,
1985, more than seven years after his guilty plea and sentencing.
He has not alleged sufficient facts to demonstrate that his delay
beyond five years from the date of the sentence was due to
excusable neglect. See Mitchell, supra, 126 N.J. at 576-77.
Consequently, his post-conviction relief petition was subject to
the five-year time limitation of Rule 3:22-12. In addition,
defendant furnishes no alternative grounds under Rule 3:22-4 for
relief from the Ocean County sentence.
We conclude that the Appellate Division's affirmance of the
denial of the Ocean County PCR petition was proper.
In granting petitioner's Monmouth County petition for post-conviction relief, the Appellate Division focused on three major concerns. First, the Appellate Division concluded that petitioner was not properly notified of the disparate consequences of being sentenced to Avenel as opposed to an ordinary penal institution. Second, the court noted that defendant's attorney was not vigorous in attempting to urge the Monmouth County sentencing judge to make his Monmouth County sentence concurrent with the Ocean County sentence. Third, the
court determined that defendant's aggregate eighteen year
sentence is manifestly unjust.
The perceived injustice of the aggregate sentence is based
on the Appellate Division's belief that defendant was promised a
ten-year maximum sentence in exchange for his Ocean County plea,
which, in combination with the shorter concurrent sentences
contemplated by his Monmouth County plea agreement, should have
resulted in a combined maximum sentence of only ten years. The
Appellate Division further surmised that "even if the Monmouth
sentences were not concurrent with the Ocean sentence, defendant
still was entitled to assume that his maximum aggregate exposure
in both counties was thirteen years." The Appellate Division
found the disparity between the sentences expected by defendant
and the sentences actually imposed unjust and grounds for
granting defendant PCR relief from the Monmouth County sentence.
Because we find defendant's Ocean County sentence to be
valid, it does not constitute a basis for impugning the Monmouth
County sentence.
The terms of the Monmouth County plea agreement, as earlier
indicated, stated that defendant was subject to a maximum
sentence of six years. Supra, at __ (slip op. at 6). However,
Judge Arnone sentenced defendant on the Monmouth County offenses
to two three-year terms to be served concurrently
(notwithstanding the indication in the plea agreement that
concurrent terms would be imposed only if defendant were not
found to be a sex offender). Moreover, defendant never appealed
those sentences. Rather, he waited more than eleven years to
argue that the term "concurrent" meant that his Monmouth County
sentences would be concurrent with the Ocean County sentence.
That long delay negates any inference that the sentences imposed
were not in accordance with defendant's expectations and were
inconsistent with his understanding of the Monmouth County plea
agreement.
Those circumstances also militate against the contention
that petitioner's attorney rendered ineffective assistance of
counsel in failing to urge the Monmouth County judge to impose
concurrent sentences. On February 16, 1990, defendant raised
that issue in his motion for reconsideration of the court's
initial denial of his application for post-conviction relief. In
support of the claim that counsel was ineffective, defendant
asserted that his parents wanted to see him incarcerated for as
long as possible, and that his attorney, who represented his
parents in the past, acted in their interest by failing to urge
the concurrent sentence, thereby lengthening his incarceration in
accordance with his parents' wishes. However, defendant proffers
no support for his assertion that his attorney was not
representing his best interests.
The conclusion of the Appellate Division that defendant was
not sufficiently advised of the penal consequences of his plea is
derived from defendant's PCR petition. In 1989, defendant was
represented by the public defender, who in support of the
petition argued that the "Informational Statement and Form for
Defendant and Counsel Prior to Sentencing as a Sex Offender" did
not comport with the requirements of State v. Howard,
110 N.J. 113 (1988). Although the informational statement differentiated
the standards for release from an Avenel sentence as compared
with parole from a state prison term, the public defender argued
that the court did not adequately question defendant, as required
by Howard, to ensure that he understood those disparate
consequences. Id. at 123.
The informational statement informed defendant that he
could request a hearing to challenge the Avenel report, which
recommended his commitment to that institution. The statement
further informed defendant that if the court sentenced him to
Avenel, "parole cannot be granted unless it is recommended by a
Special Classification Review Board and approved by the State
Parole Board. Under such a commitment you are not entitled to
credits for work or good behavior. . . ." The informational
statement further stated that if the court sentenced defendant to
a penal institution other than Avenel, the general parole
statutes would control parole and that the state prison could
credit him for work and good behavior based on his conduct.
Although the Appellate Division believed that defendant did not
sign the informational statement until after sentencing, the
record strongly suggests that the statement was signed prior to
sentencing. In any event, to the extent that the informational
statement's explanation of the disparate consequences of
sentencing to Avenel and the court's assurance of defendant's
understanding of those consequences did not comply with Howard,
supra, this Court has specifically limited Howard to prospective
application. State v. Lark,
117 N.J. 331 (1989), rev'g
229 N.J.
Super. 586 (App. Div.). Because defendant's case was not pending
at the time of the Howard decision in 1989, the requirements of
Howard are inapplicable. Lark, supra, 117 N.J. at 341.
Defense counsel argues that because of defendant's psychological treatment during the criminal proceedings and thereafter up until the filing of the PCR applications, he should be exempt from the time requirement of Rule 3:22-12. However, no specific facts have been adduced with regard to defendant's mental state to show that his psychological treatment would have prevented him from pursuing his rights and remedies either on appeal or within the five years provided by statute.
This Court observed that:
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 . . . . Moreover, the Rule [3:22-12] 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.
In the context of post-conviction
relief, a court should relax R. 3:22-12's bar
only under exceptional circumstances . . . .
Absent compelling, extenuating circumstances,
the burden of justifying a petition filed
after the five-year period will increase with
the extent of the delay.
[Mitchell, supra, 126 N.J. at 575-76, 580 (emphasis added).]
After eleven years, considering the "increased burden" of
justifying the grant of post-conviction relief, defendant has not
presented the compelling and extenuating circumstances necessary
to demonstrate excusable neglect for the delay in filing his
Monmouth County PCR petition.
The Appellate Division believed "there are too many
disquieting circumstances surrounding the original proceedings
and their aftermath to warrant out-of-hand rejection of
defendant's fundamental claim that he has been the victim of
substantial injustice." However, the concerns that give rise to
the Appellate Division's disquietude must be considered in light
of the record under the rules governing post-conviction relief.
Rule 3:22-4, as noted, provides that grounds for PCR not
raised in prior proceedings are barred unless the petitioner
could not have reasonably raised the claim in any prior
proceeding or "enforcement of the bar would result in fundamental
injustice." Further, Rule 1:1-2 generally authorizes the
relaxation of any rule "if adherence to it would result in an
injustice." This Court in Mitchell, supra, emphasized the
importance of the rules and the limited applicability of Rule
1:1-2, noting:
The difficult task, then, is to determine
under what exceptional circumstances applying
our Rules could be considered an "injustice."
In the first place, for the petitioner to
allege simply that an injustice has
transpired is not enough. The petitioner
must be prepared to "establish, by a
preponderance of the credible evidence, that
he is entitled to the requested relief."
State v. Marshall,
244 N.J. Super. 60, 69
(Law Div. 1990). To sustain that burden,
specific facts must be alleged and
articulated, which, if believed, would
provide the court with an adequate basis on
which to rest its decision. A court
reviewing a petition that does not allege
facts sufficient to sustain that burden of
proof should not jump to its own conclusions
regarding the factual circumstances of the
case.
[T]he Rules are imposed for a purpose. They
already contain ample exceptions allowing
their relaxation to ensure fairness and
prevent injustice. We do not endorse their
rigid, mechanical application; we state
simply that the Rules and their exceptions
should be conscientiously applied to the
unique circumstances of each case with due
respect for both the rule and the exception.
The pursuit of justice, however, is bound by the record and constrained by the rules that prescribe the standards governing post-conviction relief. It is apparent that the major concern underlying the grant of the Monmouth County PCR petition is derived from the Appellate Division's belief that defendant was promised a ten-year sentence in exchange for his Ocean County
plea. The record, as shown, does not establish the existence of
such an understanding, and hence cannot support the conclusion
that the carrying out of defendant's sentences is unjust.
For the reasons set forth, we conclude that the facts do not support the grant of post-conviction relief from either the Monmouth or Ocean County sentences. Therefore, we reinstate defendant's Monmouth County concurrent three-year sentences for the Monmouth County crimes, to be served consecutively to the Ocean County sentence.
Chief Justice Wilentz and Justices Pollock, O'Hern,
Garibaldi, and Stein join in this opinion. Justice Coleman did
not participate.
NO. A-32/33 SEPTEMBER TERM 1994
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant
and Cross-Respondent,
v.
D.D.M.,
Defendant-Respondent
and Cross-Appellant.
DECIDED May 4, 1995
Chief Justice Wilentz PRESIDING
OPINION BY Justice Handler
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1 The Legislature adopted the New Jersey Code of Criminal Justice in 1978. N.J.S.A. 2C:1-1(d)(2) provides that a person serving a sentence of imprisonment on the Code's effective date for an offense committed prior to that date, which offense the Code eliminated or the court sentenced the person to a maximum term which exceeded the maximum established by the Code for such offense, may move to have the sentencing court review the sentence and impose a new sentence, if applicable. Defendant was serving his sentences when the Code became effective.