STATE OF NEW JERSEY v. JOSEPH FORMAN JOSEPH FOREMAN (2010)

Defendant Joseph Forman ¹ appeals from the March 6, 2009 order that denied his petition for post-conviction relief (PCR).  We affirm.

On October 20, 1994, an Essex County Grand Jury charged defendant with purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) and/or (2) (count one);  felony murder, N.J.S.A. 2C:11-3a(3) (count three);  first-degree armed robbery, N.J.S.A. 2C:15-1 (count four);  third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b (count five);  and second-degree possession of a weapon with a purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4a (count six).²  In March 1995, a jury acquitted defendant of purposeful or knowing murder and the lesser-included offense of aggravated manslaughter on count one.   The jury failed to reach a verdict on the lesser-included offense of reckless manslaughter on count one and on all other remaining charges.

The State retried defendant in September and October 1995.   Prior to the second trial, the court granted the State's motion to dismiss the lesser-included offense of reckless manslaughter on count one.   A jury convicted defendant on the remaining four charges.   On October 27, 1995, the court sentenced defendant on count three to thirty years of imprisonment with a thirty-year period of parole ineligibility, and on count five, to a concurrent term of five years of imprisonment.   The court merged the convictions on counts four and six with the conviction on count three.   Because the trial facts were discussed at length in our prior opinion, State v. Foreman, No. A-4183-95 (App.Div. October 6, 1997), it is unnecessary for us to detail the evidence against defendant for these crimes.

On direct appeal, defendant argued:

POINT I.

THE TRIAL COURT[']S JURY INSTRUCTIONS ON ROBBERY AND FELONY MURDER WERE ERRONEOUS AND INCOMPLETE, THUS, DEPRIVING THE DEFENDANT A FAIR TRIAL.  (NOT RAISED BELOW).

A. FAILURE TO RELATE THE LEGAL DEFINITIONS OF FELONY MURDER AND ROBBERY TO THE FACTS ADDUCED AT TRIAL DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL.

B. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF THEFT.

POINT II.

THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ON PASSION/PROVOCATION MANSLAUGHTER, AND RECKLESS MANSLAUGHTER AS LESSER OFFENSES TO FELONY MURDER.   (NOT RAISED BELOW).

We affirmed the judgment of convictions and the sentences imposed.  Id. (slip op. at 14).   On November 18, 1997, the Supreme Court denied defendant's petition for certification.  152 N.J. 190 (1997).

On September 28, 1998, defendant filed a pro se petition for PCR arguing that he was denied effective assistance of trial and appellate counsel.   On February 9, 2001, the trial court denied defendant's petition without an evidentiary hearing, determining that defendant failed to prove a prima facie claim of ineffective assistance of counsel.   On May 15, 2001, the court denied defendant's motion for reconsideration.

On appeal from the denial of his first PCR petition, defendant argued:

POINT I.

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE IMPROPER IMPEACHMENT OF DEFENDANT'S ALIBI WITNESS.

POINT II.

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO PREJUDICIAL HEARSAY TESTIMONY.

POINT III.

TRIAL COUNSEL WAS INEFFECTIVE FOR TELLING THE JURY THAT DEFENDANT WOULD TESTIFY AT TRIAL.

POINT IV.

THE PCR COURT ERRED IN DENYING DEFENDANT AN EVIDENTIARY HEARING, AND IN DENYING THE PETITION.

In an unpublished opinion, we affirmed.  State v. Foreman, No. A-2619-01 (App.Div. May 19, 2004).   On September 10, 2004, the Supreme Court denied defendant's petition for certification.  181 N.J. 544 (2004).

On October 10, 2004, defendant filed a pro se federal petition for a writ of habeas corpus.   On August 24, 2006, the federal court dismissed the petition with prejudice as untimely and denied a certificate of appealability.   Foreman v. Cathel, Civil No. 04-5309(JLL).  On June 1, 2007, the Third Circuit Court of Appeals also denied a certificate of appealability.   Forman v. Cathel, C.A. No. 06-4179.

In November 2007, defendant filed a second pro se petition for PCR. Although neither defendant nor the State has advised of the precise issues raised by defendant in the trial court, we discern from the judge's decision that defendant contended he was denied effective assistance of trial counsel because his attorney failed to object to a stipulation of evidence during the trial, and failed to move for a judgment of acquittal on the robbery charge.

On March 6, 2009, Judge Sekou entered an order supported by a written opinion denying defendant's second petition, determining that the PCR petition was procedurally barred as untimely, having been filed more than five years post-entry of the judgment of conviction, R. 3:22-12(a);  and because the arguments had been already raised or could have been raised in defendant's direct appeal or in his prior petition for PCR. R. 3:22-4 and -5. In doing so, the trial court reasoned:

In this case, you allege ineffective assistance of counsel on the basis of a claim of mistaken stipulation of evidence in your trial.   This claim is subject to the five year statute of limitations and is therefore out of time.   It is your contention that due to your trial attorney's failure to object to the stipulation of evidence, and failure to raise a motion for attempted robbery, you were wrongfully convicted of robbery and felony murder.   You therefore argue that such deficiency amounts to a fundamental injustice requiring a relaxation of the time bar.   After having extensively reviewed your latest petition, this [c]ourt finds that you have failed to state a claim demonstrating such injustice.

The issues raised in your current brief are without merit.   The legality of your arguments was dealt with on direct appeal, and additionally, was addressed in your prior petition for [PCR], which was properly denied.   As this issue was adjudicated at more than one level, it has been conclusively decided that trial counsel effectively advanced all possible claims in your favor.   Moreover, you were sentenced on October 27, 1995 and this [p]etition for [PCR] was filed November [30], 2007.   It has been approximately 12 years since the date of sentencing.   The State would be faced with substantial prejudice at an evidentiary hearing since the facts needed to determine the validity of the claim [that] occurred several years ago.   Moreover, this [c]ourt does not need to consider any further pro-se amended petitions.   The matter is time barred and after careful review of all submitted materials, transcripts and opinions, this [c]ourt finds that this case is without merit.

Finally, under [Rule ] 3:22-12(a) you have failed to allege any facts amounting to an illegal sentence to preclude proper application of [Rule ] 3:22-12(a).   As demonstrated by the preceding arguments, your second petition for [PCR] is time barred and without any other sufficient evidence of excusable neglect, your request for a hearing must be denied.

On the present appeal, defendant argues:

POINT I.

WHERE, AS HERE, THE PETITION SET FORTH WITH SPECIFICITY FACTS UPON WHICH THE DELAY IN TIMELY FILING THE PETITION WAS DUE TO DEFENDANT'S EXCUSABLE NEGLECT, THE COURT SHOULD RELAX THE FIVE YEAR TIME BAR OF [RULE ] 3:22-12 (NOT RAISED BELOW).

POINT II.

THE LAW DIVISION ERRED IN DENYING DEFENDANT'S PETITION FOR POST[-]CONVICTION RELIEF, AND IN ITS FINDINGS THAT “DEFENDANT FAILED TO STATE A CLAIM DEMONSTRATING AN INJUSTICE,” WHERE, PROFFERED EVIDENCE PRESENTED TO THE COURT PROVES THE DECEDENT'S WALLET WAS NOT TAKEN, BUT RECOVERED FROM THE DECEDENT AT THE HOSPITAL, ESTABLISHING THERE WAS NO PREDICATE FELONY, I.E. ROBBERY, TO SUBSTANTIATE A PROSECUTION FOR FELONY MURDER AND THAT DEFENDANT WAS UNFAIRLY CONVICTED IN VIOLATION OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL.

POINT III.

THE LAW DIVISION ERRED IN ITS FINDINGS THAT “THE STATE WOULD BE FACED WITH SUBSTANTIAL PREJUDICE AT A[N] EVIDENTIARY HEARING SINCE THE FACTS NEEDED TO DETERMINE THE VALIDITY OF THE CLAIMS OCCURRED SEVERAL YEARS AGO[.]”

The decision whether to conduct an evidentiary hearing on a claim of ineffective assistance of counsel rests primarily on the trial court's determination whether a defendant has made a prima facie showing of the claim.  State v. Preciose, 129 N.J. 451, 462 (1992).   Rule 3:22-1 does not require that an evidentiary hearing be granted in every PCR proceeding.   Ibid. Where a “court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, ․ or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, ․ then an evidentiary hearing need not be granted.”  State v. Marshall, 148 N.J. 89, 158 (internal citations omitted), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L. Ed.2d 88 (1997).

Claims of ineffective assistance of counsel are governed by the standards set forth in Strickland v. Washington.³  See State v. Fritz, 105 N.J. 42, 58 (1987) (holding the precepts of Strickland have been adopted by New Jersey).   For a defendant to establish a prima facie case of ineffective assistance of counsel under Strickland, the defendant must show that defense “counsel's performance was deficient,” and that “there exists ‘a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ ”  Preciose, supra, 129 N.J. at 463-64 (quoting Strickland, supra, 466 U.S. at 694;  104 S.Ct. at 2068, 80 L. Ed.2d at 698);  see also State v. Allegro, 193 N.J. 352, 366 (2008).

“ ‘The first prong of the [Strickland ] test is satisfied by a showing that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case.’ ”  Allegro, supra, 193 N.J. at 366 (quoting State v. Castagna, 187 N.J. 293, 314 (2006)).   To prove the second prong of Strickland, a defendant must prove “ ‘that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ ”  Id. at 366 (quoting State v. Loftin, 191 N.J. 172, 198 (2007).   It is “an exacting standard:  ‘[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.’ ”  Ibid. (quoting Castagna, supra, 187 N.J. at 315).

We have considered defendant's arguments in light of the record and applicable law.   We are satisfied that none of them are of sufficient merit to warrant discussion in a written opinion.   R. 2:11-3(e)(2).   We affirm substantially for the reasons expressed by Judge Sekou in her written opinion of March 6, 2009.   Nevertheless, we add the following comments.

Defendant argues that “the facts and circumstances presented in the instant matter” warrant relaxation of the five year time bar contained in Rule 3:22-12(a).   We disagree.

Under Rule 3:22-12(a), a petition for reasons other than to correct an illegal sentence must be filed within five years of entry of the judgment of conviction, unless there is a showing of excusable neglect.   At the time defendant filed his PCR petition, the rule's time constraint may only be relaxed for exceptional circumstances.  State v. Afanador, 151 N.J. 41, 52 (1997).  “As time passes, justice becomes more elusive and the necessity for preserving finality and certainty of judgments increases.”  Ibid. Accordingly, “[a]bsent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay.”  Ibid.

In determining whether to consider relaxing the five-year period under the rule, a trial 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.”  Ibid. (quoting State v. Mitchell, 126 N.J. 565, 580 (1992)).   Nonetheless, “a court may relax the time bar if adherence to it would result in an injustice.”  State v. McQuaid, 147 N.J. 464, 485 (1997).

Here, the judgment of conviction was entered on October 27, 1995, and defendant filed his second PCR petition in November 2007.   Although the petition was filed twelve years beyond the time prescribed by Rule 3:22-12(a), defendant contends that the time bar under that rule should be relaxed because the prior appellate process created extenuating circumstances justifying relief from the procedural bar.   We reject defendant's contention and determine that defendant has failed to establish exceptional reasons for relaxation of the rule.   Moreover, defendant's arguments were procedurally barred as having been previously addressed in defendant's prior appeals, Rule 3:22-5 or could have been raised in defendant's prior PCR petition or direct appeal.   R. 3:22-4.

In his Case Information Statement, defendant contends that on January 26, 2009, he had submitted to the trial court an amended pro se petition explaining “that there were claims presented in his initial [second] petition that he no longer wanted to pursue and moved to withdraw[ ] the petition along with his supplemental brief and requested that the amended petition be considered as his one all inclusive petition.”   Defendant contends that the trial court only addressed the claims he presented in his initial second PCR petition and not those asserted in his amended second petition.   Notwithstanding his contention, defendant did not raise the issue in his appellate brief.   Accordingly, the argument is waived.  Almog v. ITAS, 298 N.J.Super. 145, 155 (App.Div.) (holding that legal issues raised in footnotes but not made under appropriate point headings required by Rule 2:6-2(a)(5) will not be considered on appeal), certif. granted, 151 N.J. 463 (1997), appeal dismissed, 152 N.J. 361 (1998).   The reason is that “[t]he [State] has a right to know precisely what legal arguments are being made against it.”   Dougherty v. NJ State Parole Bd., 325 N.J.Super. 549, 553 (App.Div.1999), certif. denied, 163 N.J. 77 (2000).   Indeed, the State did not address defendant's contention in its brief as it was not on notice that defendant was asserting the claim.   What is more, contrary to defendant's contentions, it appears from a review of the trial judge's decision she reviewed the second-amended petition and found that the issues raised therein were also time barred.

What is more, defendant failed to provide this court with a copy of his initial second pro-se petition for PCR and his amended second pro-se petition for us to compare the arguments therein.   Although we generally indulge procedural deficiencies to reach the merits of the parties' contentions, we cannot overlook the aforementioned deficiency because it makes it impossible for us to ascertain whether or not the issues asserted in defendant's amended second PCR petition are meritorious.  In re Zakhari, 330 N.J.Super. 493, 495 (App.Div.2000).

Affirmed.

FOOTNOTES

FN1. The State indicted and convicted defendant under the name of Joseph Foreman.   However, the order appealed from refers to defendant as Joseph Forman, and defendant filed his notice of appeal and appellate brief under that name..  FN1. The State indicted and convicted defendant under the name of Joseph Foreman.   However, the order appealed from refers to defendant as Joseph Forman, and defendant filed his notice of appeal and appellate brief under that name.

FN2. Count two of the indictment charged co-defendant Ivan Anderson with purposeful and/or knowing murder..  FN2. Count two of the indictment charged co-defendant Ivan Anderson with purposeful and/or knowing murder.

FN3. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984)..  FN3. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984).

PER CURIAM