(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 October 8, 1996 -- Decided February 19, 1997
STEIN, J., writing for a unanimous Court.
This appeal addresses the denial of McQuaid's second petition for post-conviction relief (“PCR”),
which was filed approximately seven years after his guilty plea to felony murder and theft. McQuaid based
his second PCR petition largely on a claim of ineffective assistance of counsel, alleging that he had pled
guilty because of the erroneous advice that, if tried and convicted of the pending charges, he could be subject
to the death penalty.
On December 8, l982, McQuaid and a friend, Lawrence Woodward, burglarized the Barrington,
New Jersey home of Beatrice Watson. During the course of the burglary, Woodward shot Watson twice,
killing her.
Thereafter, on December 10, l982, McQuaid and Woodward broke into a home in Haddonfield,
New Jersey. When Woodward shouted that the police were outside, the two men separated and fled.
McQuaid was apprehended by the police several blocks from the burglarized home.
In December l982, a grand jury indicted McQuaid on a total of fifteen charges related to the
Barrington burglary, including murder by his own conduct; murder as an accomplice by procuring the
commission of the homicide by payment of promise of payment; aiding and abetting the murder; felony
murder; conspiracy to commit murder, and others. The Camden County Prosecutor filed a Notice of
Aggravating Factors, thereby designating McQuaid's prosecution as a death penalty case.
In February l983, a second grand jury indicted McQuaid on six charges related to the Haddonfield
burglary.
After substantial negotiations between McQuaid's attorney and the prosecutor, the State offered
McQuaid a plea bargain, which he accepted. Based on the plea agreement, McQuaid entered a guilty plea
to one count of felony murder, in exchange for which the State agreed to seek dismissal of the remaining
fourteen counts related to the murder indictment and recommend a sentence of forty years imprisonment
with thirty years of parole ineligibility. In addition, McQuaid pled guilty to one count of theft under the
second indictment, in exchange for which the State agreed to seek dismissal of the remaining five counts and
to recommend a concurrent ten-year term of imprisonment with a five-year period of parole ineligibility.
During the plea hearing, both McQuaid and his counsel made reference to McQuaid's death
eligibility should he be convicted of murder. McQuaid acknowledged that, should he go to trial and be
convicted of murder, he could face up to sixty years imprisonment or even the death penalty.
In January l985, the trial court entered a judgment of conviction and sentenced McQuaid in accordance with the plea agreement. Thereafter, McQuaid appealed his convictions for felony murder and theft, arguing that his plea was involuntarily entered due to ineffective assistance of counsel. He asserted that he entered his guilty plea because defense counsel had failed to “sufficiently explain the probabilities of his receiving other sentences” besides death and, as a result, did not understand the consequences of his plea. He did not contend on direct appeal that he had been misinformed about his eligibility for the death sentence. The Appellate Division affirmed McQuaid's conviction and sentence for felony murder,
characterizing the case as “open and shut” and noting that McQuaid had faced “the real possibility of the
death penalty or at least a maximum term in excess of the 40 years given here.” Thereafter, the Supreme
Court denied McQuaid's petition for certification.
In March l987, McQuaid filed pro se a PCR petition, alleging that his guilty plea to felony murder
was not knowing and voluntary. He also alleged ineffective assistance of counsel. He erroneously sought
relief only in the form of a reduction of sentence. The trial court denied the application.
In March l992, McQuaid, represented by counsel, filed a second PCR petition, alleging for the first
time that he had received ineffective assistance of counsel at the plea hearing because he had been
misadvised concerning his death eligibility. The trial court denied the petition, finding that McQuaid had
previously raised that claim before the Appellate Division on direct appeal and that the petition was time-barred because it was filed more than five years after the date of the judgment of conviction.
The Appellate Division affirmed the denial of the PCR petition, finding that it was time-barred
under Rule 3:22-12. Nevertheless, the panel considered McQuaid's ineffective-assistance-of-counsel
argument that he was not death eligible because he did not kill the victim by “his own conduct.” The panel
found the argument flawed because it relied on case law decided after McQuaid's plea.
In May l995, the Supreme Court granted McQuaid's petition for certification and summarily
remanded the matter to the Appellate Division for reconsideration. In its order, the Supreme Court noted
that the Appellate Division erroneously assumed that death-eligibility under the “own conduct” requirement
of N.J.S.A. 2C:11-3c (the death penalty statute) was not established until the Court decided State v. Gerald,
113 N.J. 40 (1988).
On remand, the Appellate Division reaffirmed its prior decision affirming the trial court's denial of
defendant's PCR petition, explaining that its previous denial was not premised solely on whether McQuaid
was death-eligible. Rather, the panel had also held that McQuaid's petition was time-barred.
The Supreme Court granted McQuaid's petition for certification.
HELD: Although McQuaid was misinformed concerning his death-eligibility, he has not demonstrated that
the misinformation materially and prejudicially influenced his decision to plead guilty to felony murder and
has not sustained his burden of showing that to allow his guilty plea to stand would result in a manifest
injustice.
1. While the imputation of liability for the conduct of another suffices for a murder conviction, the
defendant's “own conduct” in the commission of the murder is a prerequisite to imposition of the death
penalty. (pp. 13-17)
2. A death-eligible accomplice must do more than solicit or merely urge another to commit murder.
Rather, the legislative history of the death penalty statute demonstrates the Legislature's intent to restrict
the scope of the murder-for-hire provision to an accomplice who kills a victim by inducing another, with
payment or the promise of pecuniary gain, to commit the murder. (pp. 18-20)
3. A defendant ordinarily must pursue relief by direct appeal and may not use post-conviction relief to assert
a new claim that could have been raised on direct appeal or to relitigate claims already decided on the
merits. (pp. 21-22)
4. Exceptions to the procedural bars to PCR petitions have been generously interpreted to ensure fundamental fairness. Because ineffective assistance of counsel claims are grounded in the Constitution and because they often cannot reasonably be raised on direct appeal or in prior proceedings, such claims may
often fall within those exceptions. (pp. 22-23)
5. A prior adjudication on the merits ordinarily constitutes a procedural bar to the reassertion of the same
ground as a basis for post-conviction relief. (pp. 23-24)
6. In determining whether to relax the time bar to the filing of a PCR petition, a 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. (pp. 24-27)
7. Misinformation provided to a defendant that is not material to the decision to plead guilty does not
render a plea involuntary. Rather, what is crucial is that the plea bargain has been fairly reached and that
defendant's reasonable expectations drawn from the terms of the bargain have been fulfilled. (pp. 27-29)
8. If misinformation does materially influence a defendant's decision to plead guilty, he will be allowed to
withdraw the plea if, as a result, he suffers prejudice. (pp. 29-30)
9. Defendants should not pay the exacting price for state procedural forfeitures that result from the
ignorance or inadvertence of their counsel -- regardless of whether counsel's error violates constitutional
standards. (pp.36-37)
10. In weighing the policy considerations in favor of finality of judicial proceedings against the alleged
prejudice to the defendant, McQuaid has failed to demonstrate prejudice that is sufficient to allow him to
withdraw his guilty plea. (pp.37-42)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and
COLEMAN join in JUSTICE STEIN'S opinion.
SUPREME COURT OF NEW JERSEY
A-
11 September Term 1996
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT MCQUAID,
Defendant-Appellant.
Argued October 8, 1996 -- Decided February 19, 1997
On certification to the Superior Court,
Appellate Division.
Steven M. Gilson, Designated Counsel, argued
the cause for appellant (Susan L. Reisner,
Public Defender, attorney).
Bennett A. Barlyn, Deputy Attorney General,
argued the cause for respondent (Peter G.
Verniero, Attorney General of New Jersey,
attorney).
The opinion of the Court was delivered by
STEIN, J.
This appeal addresses the denial of defendant's second
petition for post-conviction relief ("PCR") filed approximately
seven years after his guilty plea to felony murder and theft.
Defendant, Robert McQuaid, based his second PCR petition largely
on a claim of ineffective assistance of counsel, alleging that he
had pled guilty because of the erroneous advice that if tried and
convicted of the pending charges he could be subject to the death
penalty. The Appellate Division upheld the trial court's denial
of PCR based on the procedural bar of Rule 3:22-5, which deems
conclusive a prior adjudication on the merits of any grounds for
relief asserted.
I
We base our recitation of the pertinent facts primarily on
defendant's admissions at his plea hearing and during a
confession made several days following the murder. On December
8, 1982, defendant and a friend, Lawrence Woodward, sought to
burglarize the Barrington, New Jersey home of Beatrice Watson.
Defendant knew Watson from previous odd-jobs he had performed for
her. For several weeks, the two men had watched the house in
order to determine an appropriate time for the burglary. On the
day of the crime defendant and co-defendant Woodward believed
that the home would be unoccupied. Defendant approached the back
door of the house and knocked. Unexpectedly, Watson answered the
door. Defendant showed her a knife and told her to let him in,
informing her that she should say nothing and would not be hurt.
He backed her into the living room where he told her to lie face
down on the couch. Woodward entered the house and defendant told
him to find some tape and tie-up the victim. After Woodward tied
the victim with surgical tape, the two men ransacked the house.
While looking through bedroom drawers, defendant found a .38
caliber revolver. Defendant gave the gun to Woodward. The two
men discussed whether to kill the victim in order to prevent her
from identifying them. A pillow was placed over the victim's
head. Woodward shot the victim twice after defendant said he
could not shoot her. Following the shooting, the two men fled
the scene with a pillowcase containing the few valuable items
they had found. They drove to Philadelphia and stayed for two
days. Defendant sold the items taken from the Watson home at a
Coin Exchange store for approximately $200, and sold the gun for
drugs. Defendant gave Woodward $80 to $100 as his share of the
burglary proceeds. While in Philadelphia they also visited
defendant's uncle.
On December 10, 1982, defendant and Woodward drove to New
Jersey to return the car used during the burglary, which they had
borrowed from a friend. At the friend's home, they spoke with
Gary Cumens. Cumens had just read an article in a newspaper
about the killing of Beatrice Watson, and knew that defendant had
previously worked for her. Cumens asked defendant about the
killing and defendant admitted that they had committed the
burglary and had killed the victim.
Later that day, defendant and Woodward broke into a
Haddonfield home. Defendant cut through a screen and broke the
glass in the back door. Defendant searched the house and found
an unloaded single barrel shotgun in a closet. When Woodward
shouted that the police were outside, the two men separated and
fled. Defendant escaped from the home through a basement window,
carrying a pillowcase containing stolen goods. While running, he
dropped the pillowcase. Defendant was apprehended by the police
several blocks from the burglarized home.
On December 17, 1982, both defendant and Woodward made sworn
statements to the police regarding the burglaries and the murder
of Beatrice Watson. The two statements were consistent in
detailing how they had planned the Watson burglary for several
weeks before committing the crime. Both men stated that they
went to a supermarket to procure gloves and a knife just before
driving to the Watson house. Their statements differed somewhat
regarding the decision to kill the victim. Woodward claimed
defendant told him to kill the victim because she could identify
defendant. He stated that defendant emphasized that he did not
want to return to jail because he knew he would receive a long
sentence. Woodward also claimed that defendant gave him the
pillow and told him to shoot the victim through the pillow in
order to muffle the sound. Defendant stated that they had
previously discussed killing the victim, if necessary. Defendant
claimed that, while defendant was in a different room, Woodward
threatened and then killed the victim after defendant gave him
the gun.
Other evidence acquired by the police included a sworn
statement by Gary Cumens, which indicated that two days before
the killing he had driven past the victim's home with the two
defendants and heard them discuss their plan to burglarize the
home. Cumens reported that defendant later admitted to him that
he and Woodward had killed the victim. Cumens also stated that
defendant informed him that defendant had told Woodward to go
ahead and kill her while he went into another room.
The police went to the Philadelphia store where defendant
had sold the items stolen from the victim's home. With the
signed receipt retained by defendant, police detectives recovered
the stolen items, including a silverware set engraved with the
initial "W". Additionally, the police recovered the gun
registered to the victim. The police spoke with defendant's
uncle who confirmed the presence of the two men in Philadelphia
during the two days following the murder. The uncle stated that
defendant and his friend stayed overnight in a small silver car,
which matched the description of the car defendant admitted to
borrowing on the day of the murder. The police also located a
witness who, on the day of the killing, saw the car used by
defendant parked around the corner from the victim's home.
In December 1982, a grand jury indicted defendant on a total
of fifteen charges. Those charges were: murder by his own
conduct, N.J.S.A. 2C:11-3a(1) -3a(2), -3c (count one); murder as
an accomplice by procuring the commission of the homicide by
payment or promise of payment of anything of pecuniary value,
N.J.S.A. 2C:11-3c (count two); aiding and abetting the murder,
N.J.S.A. 2C:5-1, 11-3c (counts three and four); felony murder,
N.J.S.A. 2C:11-3a(3), -3c (count five); conspiracy to commit
murder, N.J.S.A. 2C:5-2 (count six); first-degree robbery,
N.J.S.A. 2C:15-1b (count seven); second-degree burglary, N.J.S.A.
2C:18-2b (count eight); conspiracy to commit robbery and/or
burglary, N.J.S.A. 2C:5-2 (count nine); hindering apprehension or
prosecution, N.J.S.A. 2C:29-3a(3) (counts ten, eleven, and
twelve); possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39-4a, -4d (counts thirteen and fourteen); and possession of
a handgun, N.J.S.A. 2C:39-5b (count fifteen).
The Camden County Prosecutor filed a Notice of Aggravating
Factors, pursuant to N.J.S.A. 2C:11-3c(2)(e) and Rule 3:13-4(a),
thereby designating defendant's prosecution as a death penalty
case. The enumerated factors were: (1) the murder was
outrageously or wantonly vile, horrible or inhuman, N.J.S.A.
2C:11-3c(4)(c); (2) the murder was committed for the purpose of
escaping detection, N.J.S.A. 2C:11-3c(4)(f); (3) the murder was
committed while the defendant was engaged in the commission of a
robbery and/or burglary, N.J.S.A. 2C:11-3c(4)(g); and (4) the
defendant procured the commission of the murder by payment or
promise of payment, N.J.S.A. 2C:11-3c(4)(e).
In February 1983, a second grand jury indicted defendant on
six charges related to the Haddonfield burglary. Those charges
were: fourth degree aggravated assault -- by pointing a firearm,
N.J.S.A. 2C:12-1b(4)(count one); second-degree burglary, N.J.S.A.
2C:18-2 (count two); third-degree theft by unlawful taking or
disposition, N.J.S.A. 2C:20-3 (count three); second degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4
(count four); third-degree unlawful possession of a weapon
(shotgun), N.J.S.A. 2C:39-5(c)(1) (count five); and conspiracy to
commit burglary, N.J.S.A. 2C:5-2 (count six).
Defense counsel represented defendant for close to a year
and a half. At the plea hearing, counsel noted that he had had
numerous conferences with defendant discussing the potential
consequences of both a guilty plea and a conviction after trial.
He acknowledged that defendant was charged with a capital crime
and faced the possibility of a death sentence. In the course of
a colloquy with the court, he expressed the view that defendant,
if convicted on all charges, faced a potential sentence of life
with sixty years parole ineligibility.
After substantial negotiations between defense counsel and
the prosecutor, the State offered defendant a plea bargain.
Defendant accepted. Based on the plea agreement, defendant
entered a retraxit guilty plea to one count of felony murder. In
exchange, the State agreed to seek dismissal of the remaining
fourteen counts related to the murder indictment and recommend a
sentence of forty years imprisonment with thirty years of parole
ineligibility. Additionally, defendant pled guilty to one count
of theft under the second indictment. The State also agreed to
seek dismissal of the remaining five counts and to recommend a
concurrent ten-year term of imprisonment with a five-year period
of parole ineligibility.
During the plea hearing, defendant, defense counsel and the
trial court made reference to defendant's death eligibility. On
four separate occasions defendant stated that it was his
understanding that if he were to plead not guilty and stand trial
on the charges against him he might be convicted of murder and
receive the death penalty. The trial court questioned defendant
to ensure that he understood the penalties for theft and murder.
When asked if he understood the maximum penalty to which he would
be subject if convicted, defendant stated, "I get the death
penalty."
At the plea hearing, defendant expressed dissatisfaction
with his legal representation. The trial court closely
questioned defendant to determine the basis for his concern. The
trial court indicated it could not accept the plea bargain if
defendant had not received adequate legal counsel. After taking
a short break, defendant stated that he had received adequate
counsel and wanted to plead guilty, explaining that the concerns
he had expressed previously reflected his unhappiness with the
legal predicament facing him.
Defendant apparently agreed to the plea bargain because he
perceived the evidence against him to be overwhelming. Defendant
stated:
[I]t's just that, you know, I don't know. I
look at my case. I got a stack of evidence
against me this high. So to say I have even
a near win, you know what I mean, or almost
would be wrong. So it's like, you know, the
deal's good. You know what I mean?
. . . .
It's not like I'm -- I mean I'm weighing out
a lot, you know what I mean? If I take it to
trial -- 30 years at least there's a little
bit of light at the end of the tunnel versus
60 years or death row. There's no light
there, you know what I mean?
In January 1985, the trial court entered a judgment of
conviction and sentenced defendant in accordance with the plea
agreement to forty years imprisonment with thirty years of parole
ineligibility on the murder charge. The court also sentenced
defendant to a concurrent ten-year term of imprisonment on the
theft charge.
Defendant appealed his convictions for felony murder and
theft, arguing that his plea was involuntarily entered due to
ineffective assistance of counsel. He asserted that he entered
his guilty plea because defense counsel had failed to
"sufficiently explain the probabilities of his receiving other
sentences" besides death and, as a result, did not understand the
consequences of his plea. Defendant did not contend on direct
appeal that he had been misinformed about his eligibility for the
death sentence. The Appellate Division affirmed defendant's
conviction and sentence for felony murder. The panel stated:
These were open and shut cases minimally
showing a felony murder and a second theft.
Since there was substantial evidence of a
prior agreement between defendant and the
actual murderer to kill the occupant of the
house if she proved to be at home, defendant
faced the real possibility of the death
penalty or at least a maximum term in excess
of the 40 years given here. The minimum term
was not subject to negotiation since it was
mandated by N.J.S.A. 2C:11-3b.
Defendant also asserted that his sentence for second-degree
theft was illegal because the evidence supported only third-degree theft. The State conceded that point. The Appellate
Division vacated defendant's sentence on second-degree theft and
remanded for resentencing. Thereafter, this Court denied
defendant's petition for certification.
107 N.J. 57 (1986).
In March 1987, defendant filed pro se a petition for post-conviction relief alleging that his guilty plea to felony murder
was not knowing and voluntary. He also alleged ineffective
assistance of counsel. The papers defendant filed erroneously
sought relief only in the form of a reduction of sentence. The
trial court denied the petition, finding that it failed to meet
the requirements for reduction of sentence under Rule 3:21-10(a),
(b) and (c) (stating procedural requirements for filing motion to
reduce sentence, including sixty-day filing period from date of
judgment of conviction). The court also found that the pro se
petition failed to meet the requirements for PCR under Rule 3:22-1, -2 and -3 (describing availability of PCR, appropriate grounds
for PCR and exclusiveness of PCR remedy). Without hearing oral
argument, the trial court denied the motion based on the pro se
papers.
In September 1987, appointed counsel filed a Motion for
Leave to Appeal the trial court's denial of defendant's PCR
petition. In July 1988, appointed counsel realized that she had
filed a motion to appeal the denial of a PCR petition although
the relief sought by defendant's prior motion was only a
reduction in his prison sentence. According to counsel's
subsequent certification, she then wrote to defendant to inform
him that his motion to reduce his sentence was two years out of
time and that the issue raised in his pro se brief previously had
been adjudicated on direct appeal. She asked defendant to inform
her of any other issues she could argue on appeal and informed
defendant that if she did not hear from him she would have to
move to be relieved as counsel. Counsel received a scheduling
order from the Appellate Division requiring the filing of
defendant's appellate brief within nine days. According to
counsel, she again wrote to defendant but did not hear from him.
She then informed him that if she did not file a brief his appeal
would be dismissed, and that if she did not hear from him
immediately she would assume that he agreed that his appeal
should be dismissed. After a month, counsel still had not heard
from defendant. Counsel asked to be relieved as defendant's
counsel in September 1988, and subsequently discontinued her
representation of defendant. In August 1989, the Appellate
Division dismissed the appeal for failure to file a timely brief.
In July 1991, defendant filed pro se a motion for permission
to file a second PCR petition nunc pro tunc. Defendant's
supporting affidavit contradicted the facts as stated by
appointed counsel, alleging that he never received letters from
his appointed counsel. He contended that the prison mail logs
revealed that he did not receive either of the letters described
by counsel. Defendant asserted that he had excusable grounds for
failing to file a PCR petition in a timely manner. The Law
Division granted his motion.
In March 1992, defendant, represented by assigned counsel,
filed a second PCR petition. Defense counsel contended for the
first time that defendant received ineffective assistance of
counsel at the plea hearing because he was misadvised concerning
his death-eligibility. The PCR trial court denied defendant's
petition based on Rule 3:22-5, finding that defendant had
previously raised that claim before the Appellate Division on
direct appeal and that the issue therefore was procedurally
barred. The PCR trial court also found that the PCR petition was
time-barred under Rule 3:22-12 because it was filed more than
five years after the date of the judgment of conviction.
Concerning the merits of defendant's claim, the court
stated:
A construction or the interpretation of those
facts could lead reasonable minds to differ
as to whether he was death eligible. But, it
certainly isn't error on the part of counsel
to draw that inference. And, in support of
that conclusion, we have the Appellate
Division saying in a way that he was death
eligible. So, if the Appellate Division says
or draws that conclusion, how can we in good
conscience say that Mr. McQuaid's lawyer was
ineffective in arriving at the same
conclusion[?]
The Appellate Division affirmed the PCR trial court's denial of post-conviction relief in an unreported opinion, finding that defendant's claim was time-barred under Rule 3:22-12. The panel nevertheless considered defendant's ineffective-assistance-of-counsel argument. Defendant argued that he was not death eligible because he did not kill the victim by "his own conduct." The panel found defendant's argument flawed because it relied on
case law decided subsequent to defendant's plea. The Appellate
Division concluded that defendant's counsel was not ineffective.
In May 1995, this Court granted defendant's petition for
certification and summarily remanded the matter to the Appellate
Division for reconsideration.
141 N.J. 92 (1995). In its Order,
the Court noted that the Appellate Division erroneously assumed
that death-eligibility under the "own conduct" requirement of
2C:11-3c was not established until the Court decided State v.
Gerald,
113 N.J. 40 (1988).
On remand, the Appellate Division reaffirmed its prior
decision affirming the trial court's denial of defendant's PCR
petition. In an unreported opinion, the panel explained that its
previous "denial . . . was not premised solely upon whether
defendant was death-eligible under the `own conduct' requirement
of N.J.S.A. 2C:11-3c." The panel also held that defendant's PCR
petition was barred under Rule 3:22-5. We granted defendant's
petition for certification.
143 N.J. 328 (1996).
II
A
Under New Jersey's Capital Punishment Act (Act) at the time of the murder there were two classes of murderers eligible for the death penalty -- those who committed murder "by [their] own conduct" and those who "procured the commission of the offense by payment or promise of payment, of anything of pecuniary value."
L. 1982, c. 111, § 1 (codified as amended at N.J.S.A. 2C:11-3c);
Gerald, supra, 113 N.J. at 100; State v. Ramseur,
106 N.J. 123,
193 (1987).See footnote 1 In pertinent part, the Act as adopted in 1982
provided:
a. . . . [C]riminal homicide constitutes
murder when:
(1) The actor purposely causes death or
serious bodily injury resulting in
death; or
(2) The actor knowingly causes death or
serious bodily injury resulting in
death; or
(3) It is committed when the actor,
acting either alone or with one or
more other persons, is engaged in
the commission of, or an attempt to
commit, or flight after committing
or attempting to commit robbery,
sexual assault, arson, burglary,
kidnapping or criminal escape, and
in the course of such crime or of
immediate flight therefrom, any
person causes the death of a person
other than one of the participants
. . . .
c. Any person convicted under
subsection a.(1) or (2) who
committed the homicidal act by his
own conduct or who as an accomplice
procured the commission of the
offense by payment or promise of
payment, of anything of pecuniary
value shall be sentenced as
provided hereafter:
. . . .
(1) The court shall conduct a separate
sentencing proceeding to determine
whether the defendant should be
sentenced to death . . . .
[L. 1982, c. 111, § 1 (codified as
amended at N.J.S.A. 2C:11-3c
(emphasis added)).]
Under the own-conduct provision, a defendant must "actively
and directly participate[] in the homicidal act, i.e., in the
infliction of the injuries from which the victim died." Gerald,
supra, 113 N.J. at 97 (emphasis omitted). To satisfy the own-conduct requirement, "the State [must] prove beyond a reasonable
doubt that defendant's conduct was the direct and immediate cause
of death." State v. Brown,
138 N.J. 481, 510 (1994) (quoting
State v. Moore,
113 N.J. 239, 299 (1988)(emphasis omitted)).
We noted in Gerald, supra, that "[f]or purposes of
determining an actor's guilt, both the Code and the statutory and
common law that preceded it abolished the distinction between
principal and accomplice." 113 N.J. at 93. However, "in
adopting the `own conduct' requirement, the legislature
reinstated [the distinction] for purposes of capital punishment."
Id. at 96. An accomplice may be convicted of murder under
N.J.S.A. 2C:11-3, but unless his immediate conduct directly
contributed to the victim's demise, or he hired someone else to
murder the victim, he is not death-eligible. "While the
imputation of liability for the conduct of another suffices for a
murder conviction, the defendant's `own conduct' in the
commission of the murder is a prerequisite to imposition of the
death penalty." Ibid.; see also Moore, supra, 113 N.J. at 302-03
(holding defendant not death-eligible under the own-conduct
provision because, although she had tortured victim for number of
years, defendant was not present when accomplice delivered fatal
injuries to victim); cf. State v. McDougald,
120 N.J. 523, 560-62
(1990) (finding sufficient evidence existed to support
defendant's conviction of murder by his own conduct, because both
defendant and accomplice directly participated in killings by
stabbing, cutting and striking victims until they died).
In Gerald, supra, we analyzed the legislative history of the
death penalty statute with regard to the own-conduct requirement,
concluding:
The legislative history of the Act makes it
clear . . . that in enacting N.J.S.A. 2C:11-3(c), the Legislature intended to
distinguish, for purposes of punishment only,
a murderer who actually killed -- the
"triggerman" -- from one whose conviction
rests on a theory of vicarious liability
under N.J.S.A. 2C:2-6. An accomplice who
neither takes part in the infliction of the
fatal wounds nor hires another to commit the
murder may properly be convicted of murder
but may not be sentenced to death for his or
her conduct. For this limited purpose the
legislature has chosen to resurrect the
distinction between a principal and an
accomplice.
[113 N.J. at 93.]
In Moore, supra, we stated:
We were persuaded [in Gerald] that it was the
Legislature's intent to preclude death-eligibility where a defendant's murder
conviction was based on a felony murder
charge or a theory of accomplice liability,
unless, as N.J.S.A. 2C:11-3 expressly
provides, defendant hired another to commit
the murder. Other than that very narrow
"murder for hire" exception, only the
principal, i.e., "the triggerman," shall be
death-eligible.
[113 N.J. at 300.]
The murder-for-hire exception to the own-conduct requirement
is narrowly limited to those who hire others to murder on their
behalf. The official legislative history and legislative
statements serve as valuable interpretive aid in determining the
Legislature's intent. See State v. State Supervis. Employees
Ass'n,
78 N.J. 54, 69 (1978); 2A Sutherland Statutory
Construction § 48 (Singer ed., 5th ed., 1992); see also Gerald,
supra, 113 N.J. at 93-97 (using legislative history to interpret
scope of own-conduct provision in Act). The Act's legislative
history indicates the Legislature's intent to restrict the scope
of the murder-for-hire provision of the death penalty statute to
an accomplice who kills a victim by inducing another, with
payment or the promise of pecuniary gain, to commit the murder:
Under the provisions of Senate Bill No. 112,
as clarified by amendments adopted by the
committee, only a person who actually commits
an intentional murder, the perpetrator, and a
person convicted as an accomplice who hired
the perpetrator, the procurer, would stand in
jeopardy of the death penalty. Persons
convicted under the felony-murder doctrine
and persons convicted as accomplices other
than as procurers would not be eligible for
capital punishment.
[Senate Judiciary Committee, Statement to
Senate Bill No. 112, at 1 (Mar. 1, 1982)
(emphasis added).]
A Statement clarifying amendments to the bill reaffirmed the
Legislature's intent:
These amendments clarify that any person
whose conduct directly caused an intentional
murder and any person who procured an
intentional murder through pecuniary
inducements would be subject to the death
penalty. These amendments also clarify those
murderers who are either not eligible for the
death penalty or those eligible on whom the
death is not imposed shall be sentenced to
either 30 years imprisonment with no
eligibility for parole or to a term of years
between 30 years and life imprisonment with a
30 year period of parole ineligibility.
[Statement to Senate Floor Amendments to Bill
No. 112, at 2 (Mar. 29, 1982) (emphasis
added).]
A later legislative Statement explains:
The purpose of Senate Bill No. 112 is to
reinstate capital punishment in New Jersey.
Under the provision of Senate Bill No. 112, .
. . only a person who actually commits an
intentional murder, and a person convicted as
an accomplice who hired the murderer, would
stand in jeopardy of the death penalty.
Persons convicted under the felony-murder
doctrine and persons convicted as accomplices
other than as procedures [sic] would not be
subject to capital punishment.
[Assembly Judiciary, Law, Public Safety and
Defense Committee, Statement to Senate Bill
No. 112, at 1 (May 20, 1982) (emphasis
added).]
Significantly, those legislative Statements distinguish
between general accomplices and accomplices who hire a
perpetrator to commit the murder. The death-penalty statute
provides that the death penalty is to be applied only to
accomplices who hire others to commit the murder. Moreover, as
the Legislative Statements make clear, a death-eligible
accomplice must do more than solicit or merely urge another to
commit murder. Such an accomplice must actually hire the
perpetrator. The common meaning of "hire" is to engage the
personal services of another in return for a stipulated payment.
See Black's Law Dictionary 502 (6th ed. 1991)
The Legislature's intent to limit the application of the
death penalty to a narrow group of accomplices is further
illustrated by the following colloquy over an earlier draft of
the bill.
Senator Russo: Under this bill, there are only two people
who can get the death penalty, one is the
fellow who wields the instrument of death and
the other is the fellow who hires the one to
commit the crime.
Mr. Stier: I don't think so. I think it is broader than
that.
. . . .
Senator Russo: . . . [I]f I hire you to commit an
assassination, that is clear; and, it is
clear that it is covered under [the statute].
But, I think what your suggestion is, if I,
without hiring you, said "Ed, I don't like
Fred," and I solicit you to get your gun and
go shoot him and you do, that I would be
under --
Mr. Stier: That is right.
Senator Russo: All right. . . . That is not the intent.
Senator Dorsey: What about in the murder for hire where you
have a whole team, but only one wields the
weapon. What about the rest of the team, the
driver, the stake-out?
Senator Russo: No, no, they are not covered. Well, they are
going to only get life.
Senator Dorsey: Yes, but their participation made the crime
possible.
Senator Russo: That is true. Let's talk about that for a
moment . . . . My purpose as sponsor is that
this bill apply only to two categories, not
that it couldn't perhaps be justified to
more, but I want to limit it to two
categories and always have. One is the
person who wielded the instrument of death
and two is the person who hired someone, the
contract case. I don't make the argument by
that that others should not be subjected to
the death penalty. I just don't want to go
that far at this time . . . . I think we
should take only this first step -- the
actual person who wields the instrument of
death and the person who hires one, not
solicits. So, we are going to have to clean
that language up if you go along with me. We
are interested in the person hired for a
contract killing.
Senator Dorsey: I only speak in terms of the accomplice who
pays to have it done.
Senator Russo: Exactly.
[Capital Punishment Act: Hearings
on Senate Bill No. 112 Before the
Senate Judiciary Committee (Feb.
26, 1982) at 16-17.]
The legislative history of the Act thus clearly demonstrates
that the Legislature intended to distinguish, for purposes of
punishment, defendants who actually killed and defendants who
hired others to kill from accomplices otherwise involved in the
murder. Pursuant to the 1982 death penalty statute, a defendant
must have directly caused the death-producing injuries or have
hired another to do so to be death-eligible.
B
Pursuant to Rule 3:22-2, post-conviction relief is available to a defendant on four grounds: (a) substantial denial in the conviction proceedings of a defendant's rights under the federal constitution, state constitution or state law; (b) lack of jurisdiction by the court imposing sentence; (c) imposition of an improper sentence; and (d) any other habeas corpus, common-law or statutory grounds for a collateral attack. R. 3:22-2.
Post-conviction relief is a safeguard that ensures that a defendant was not unjustly convicted. It is the state analogue to the federal writ of habeas corpus. State v. Preciose, 129 N.J. 451, 459 (1992). PCR provides a defendant with a means to challenge the legality of a sentence or final judgment of conviction which could not have been raised on direct appeal. See In re Santiago, 104 N.J. Super. 110, 115 (Law Div. 1968), aff'd o.b., 107 N.J. Super. 243, 258 (App. Div. 1969). It is not used to challenge the sufficiency of evidence used to convict a defendant. State v. Morales, 120 N.J. Super. 197, 200 (App. Div.), certif. denied, 62 N.J. 77 (1972).
A defendant ordinarily must pursue relief by direct appeal, see R. 3:22-3, and may not use post-conviction relief to assert a new claim that could have been raised on direct appeal. See R. 3:22-4. Additionally, a defendant may not use a petition for post-conviction relief as an opportunity to relitigate a claim already decided on the merits. See R. 3:22-5. A claim for post-conviction relief must be established by a preponderance of the credible evidence. Preciose, supra, 129 N.J. at 459; Mitchell, supra, 126 N.J. at 579.
Procedural bars exist in order to promote finality in judicial proceedings. Rule 3:22-4 imposes a procedural bar to prevent claims from being raised on PCR that reasonably could have been raised on direct appeal. However, Rule 3:22-4 also delineates circumstances where that bar does not apply.
Any ground for relief not raised in a prior proceeding . . . is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds (a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.
We explained the scope of the Rule 3:22-4 procedural bar in Preciose, supra:
[W]e generally have declined to read the
exceptions to Rule 3:22-4 narrowly . . . [w]e
held that `an error [that] denies fundamental
fairness in a constitutional sense and hence
denies due process of law' can be asserted in
post-conviction proceedings as long as it was
not litigated previously. Although we have
construed the `fundamental fairness'
exception to apply only when a petitioner's
guilt or innocence is involved, we have
generously interpreted Rule 3:22-4(a) to
permit the assertion of claims that could not
reasonably have been raised in earlier
proceedings.
[129 N.J. at 476-77 (citations omitted).]
Ineffective assistance of counsel claims may often fall
within Rule 3:22-4(c), because those claims are grounded in the
Sixth Amendment of the United States Constitution and the New
Jersey Constitution. See Preciose, supra, 129 N.J. at 460; State
v. Sloan,
226 N.J. Super. 605, 612 (App. Div.), certif. denied,
113 N.J. 647 (1988). This Court has also noted the
appropriateness of asserting ineffective assistance of counsel
claims on PCR because such claims often cannot reasonably be
raised on direct appeal or in prior proceedings. See State v.
Martini,
144 N.J. 603, 609 (1996) (Martini III); Preciose, supra,
129 N.J. at 460; see also State v. Sparano,
249 N.J. Super. 411,
419 (App. Div. 1991) (same).
However, when the issue of ineffective assistance of counsel
has already been raised on direct appeal, it may be procedurally
barred on PCR by Rule 3:22-5. That rule provides:
A prior adjudication upon the merits of
any ground for relief is conclusive whether
made in the proceedings resulting in the
conviction or in any post-conviction
proceeding brought pursuant to this rule or
prior to the adoption thereof, or in any
appeal taken from such proceedings.
[R. 3:22-5.]
"[A] prior adjudication on the merits ordinarily constitutes a
procedural bar to the reassertion of the same ground as a basis
for post-conviction review." Preciose, supra, 129 N.J. at 476.
However, claims that differ from those asserted below will be
heard on PCR. "Preclusion of consideration of an argument
presented in post-conviction relief proceedings should be
effected only if the issue is identical or substantially
equivalent" to that issue previously adjudicated on its merits.
Pickard v. Connor,
404 U.S. 270, 276-77,
92 S. Ct. 509, 512-13,
30 L. Ed.2d 438, 444 (1971); State v. Bontempo,
170 N.J. Super. 220, 234 (Law Div. 1979). If the same claim is adjudicated on
the merits on direct appeal a court should deny PCR on that
issue, thereby encouraging petitioners to raise all meritorious
issues on direct appeal.
A final procedural bar to PCR review is set forth in Rule
3:22-12, which establishes a five-year time limit for petitioning
for PCR:
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.
In Mitchell, supra, we emphasized the important policy underlying the requirement that PCR petitions be timely filed, explaining:
There are good reasons for [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. . . . 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.
Notwithstanding Rule 3:22-12, however, a court may relax the time bar if adherence to it would result in an injustice. See Mitchell, supra, 126 N.J. at 576. When determining whether to relax the time bar, we stated in Mitchell that a 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." Id. at 580.
C
A plea-bargain provides "mutuality of advantage" to both the defendant and the State. See Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S. Ct. 663, 668, 54 L. Ed.2d 604, 611 (1978); Brady v. United States, 397 U.S. 742, 752, 90 S. Ct. 1463, 1471, 25 L. Ed.2d 747, 758 (1970); State v. Taylor, 80 N.J. 353, 361 (1979); State v. Corbitt, 74 N.J. 379, 394 (1977), aff'd, 439 U.S. 212, 99 S. Ct. 492, 58 L. Ed.2d 466 (1978). The defendant benefits by reducing his penal consequences and avoiding the public humiliation of a trial; the State benefits by assuring that a guilty defendant is punished and by protecting valuable judicial and prosecutorial resources. See Brady, supra, 397 U.S.
at 752, 90 S. Ct. at 1471, 25 L. Ed.
2d at 758; Taylor, supra, 80
N.J. at 361; State v. Marzolf,
79 N.J. 167, 182-83 (1979).
However, plea bargains may be accepted only if the trial court is
assured that a defendant enters his plea of guilty knowingly and
voluntarily. See Brady, supra, 397 U.S. at 748, 90 S. Ct. at
1469, 25 L. Ed.
2d at 756.
Rule 3:9-2 states in pertinent part:
The court, in its discretion, may refuse to
accept a plea of guilty and shall not accept
such plea without first addressing the
defendant personally and determining by
inquiry of the defendant and others, in the
court's discretion, that there is a factual
basis for the plea and that the plea is made
voluntarily, not as the result of any threats
or any promises or inducements not disclosed
on the record, and with an understanding of
the nature of the charge and the consequences
of the plea.
As we have previously stated, Rule 3:9-2 requires that a defendant who pleads guilty do so voluntarily, knowingly, and intelligently. See State v. Kiett, 121 N.J. 483, 491 (1990) (holding on direct appeal that juvenile defendant entitled to vacate plea due to mistaken impression he was death-eligible); State v. Howard, 110 N.J. 113, 122 (1988); Taylor, supra, 80 N.J. at 362; see also Brady, supra, 397 U.S. at 743-48, 90 S. Ct. at 1463-69, 25 L. Ed. 2d at 753-56 (holding plea entered on death-eligible kidnapping charge, following co-defendant's guilty plea, voluntary). A defendant has "the right not to be `misinformed . . . as to a material element of a plea negotiation, which [he]
has relied thereon in entering his plea.'" Howard, supra, 110
N.J. at 122 (citing State v. Nichols,
71 N.J. 358, 361 (1976)).
If a defendant's plea is not entered knowingly and
voluntarily, Rule 3:21-1 allows a defendant to withdraw his or
her plea. Rule 3:21-1 provides: "A motion to withdraw a plea of
guilty . . . shall be made before sentencing, but the court may
permit it to be made thereafter to correct a manifest injustice."
(emphasis added). Following sentencing, if a defendant seeks to
withdraw a guilty plea the court weighs more heavily the State's
interest in finality and applies a more stringent standard. See
Taylor, supra, 80 N.J. at 359-360; State v. Deutsch,
34 N.J. 190,
198 (1961). The discretionary determination entails a balancing
of the competing interests:
In exercising its discretion, the court must
weigh the policy considerations which favor
the finality of judicial procedures against
those which dictate that no man be deprived
of his liberty except upon conviction after a
fair trial or after the entry of a plea of
guilty under circumstances showing that it
was made truthfully, voluntarily and
understandingly.
[State v. Herman,
47 N.J. 73, 76-77 (1966).]
Misinformation provided to a defendant that is not material
to the decision to plead guilty does not render a plea
involuntary. In Taylor, supra, the defendant sought to withdraw
his guilty plea to charges stemming from his indictment on a
series of heinous crimes committed against two victims during a
drug transaction, which included premeditated and felony murder,
armed robbery and robbery. 80 N.J. at 356-58. Defendant argued
on appeal that he should be permitted to withdraw his plea
because he had been misinformed concerning the "potential extent
of penal exposure" had he elected to stand trial on all charges.
Id. at 358-59. Defendant maintained that he was misinformed
regarding the possible merger of the armed robbery and robbery
counts of the indictment. Id. at 359. He asserted that his plea
could not be considered knowing and intelligent and should be
vacated. Ibid.
This Court considered whether the interests of justice would
be served by enforcing the plea bargain. Id. at 360. We
acknowledged that if "there exists a reasonable likelihood of
merger, a trial court should in all fairness to the defendant
inform him of that contingency." Id. at 363. We noted, however,
that "[w]hat is crucial is that the plea bargain has been fairly
reached and that defendant's reasonable expectations drawn from
the terms of the bargain have been fulfilled." Id. at 364. The
Court endorsed the approach that the decision whether to permit a
defendant to withdraw his plea should "be decided on a case-by-case basis, depending upon whether the defendant can be said to
have been prejudiced by the omission." Id. at 363-64 (citing
Bachner v. United States,
517 F.2d 589, 599 (7th Cir. 1975)
(Stevens, J., concurring); United States v. Woodall,
438 F.2d 1317, 1329 (5th Cir. 1970), cert. denied,
403 U.S. 933,
91 S. Ct. 2262,
29 L. Ed.2d 712 (1971)). We emphasized the element of
doubt inherent in any plea bargain, noting that the ultimate
sentence to be imposed is never a certainty. Id. at 364. We
concluded that "[i]f a defendant does not `correctly assess every
relevant factor entering into his decision', this will not
automatically render his plea involuntary or unintelligent."
Ibid. (quoting Brady, supra, 397 U.S. at 756-57, 90 S. Ct. at
1473, 25 L. Ed.
2d at 761).
In Taylor, supra, we concluded that the information conveyed
to the defendant was not false or misleading and did not
constitute a material misrepresentation sufficient to allow the
defendant to withdraw his plea. We determined that