State v. Cummings

• Decision Date: 11 May 1999
• Citation: 321 N.J. Super. 154,728 A.2d 307
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Shawn CUMMINGS, Defendant-Appellant.
• Court: New Jersey Superior Court

728 A.2d 307

321 N.J. Super. 154

STATE of New Jersey, Plaintiff-Respondent, v. Shawn CUMMINGS, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Submitted March 16, 1999.

Decided May 11, 1999.

Ivelisse Torres, Public Defender, for defendant-appellant (Russell S. Heckler, Designated Counsel, of counsel and on the brief).

Patricia A. Hurt, Essex County Prosecutor, for plaintiff-respondent (Gary A. Thomas, Assistant Prosecutor, of counsel and on the brief).

Before Judges PRESSLER, KLEINER and STEINBERG. The opinion of the court was delivered by STEINBERG, J.A.D

This appeal requires us to consider the relationship between the five-year time bar of R. 3:22-12 and the relaxation authorization of R. 1:1-2 which permits the court to relax a rule if adherence to it would result in injustice. We must also consider the nature of the allegations in a petition for post-conviction relief that would entitle the petitioner to an evidentiary hearing.

Petitioner Shawn Cummings contends that the motion judge erred in dismissing his petition for post-conviction relief because it was time barred. He further argues that the judge erred in not granting him a full evidentiary hearing on his contention that his trial counsel was ineffective. We reject both arguments and affirm.

Tried by a jury, petitioner was found guilty on December 23, 1985, of felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree armed robbery, N.J.S.A. 2C:15-1; and related weapons offenses. On January 31, 1986, the trial judge sentenced petitioner to thirty years of imprisonment, to be served without parole, on the charge of felony murder. The remaining counts were disposed of by way of merger or the imposition of concurrent sentences.

According to the State's proofs the victim, a reputed drug dealer, was shot to death in his apartment on South Harrison Avenue in East Orange on February 20 or February 21, 1985. The medical examiner opined that the victim had been shot several times at close range, sustaining wounds in the head, chest, face, and forearm. During the course of the investigation of the murder the East Orange police interviewed Aaron Diggs, then aged sixteen, Derrick Notis, Oonie Simmons, and Darnell Kiser. Each of them stated that defendant had admitted his involvement in the incident to them. The State called Diggs, Notice, Simmons, and Kiser as witnesses at defendant's trial and each, to some degree, recanted their prior statements. The State moved their prior statements into evidence and the trial judge overruled defendant's objections and allowed the statements to be admitted as prior inconsistent statements pursuant to then Evid. R. 63(1)(a) (now N.J.R.E. 803(a)(1)).

On June 6, 1988, in an unpublished opinion we conditionally affirmed defendant's convictions. See State v. Cummings, No. A-3311-85T4 (App. Div. June 6, 1988), certif. den., 122 N.J. 349, 585 A.2d 360 (1990). We were concerned that the record did not provide sufficient information to enable the judge to decide the issue of the reliability of the statements of Notis, Simmons, and Kiser without a hearing conducted pursuant to then Evid. R. 8(1) (now N.J.R.E. 104(a)). Accordingly, we remanded to the Law Division for a hearing on that issue, instructing that if the challenged statements were found to have been made in circumstances bespeaking their reliability, defendant's convictions would stand, but if the evidence showed that the statements were not made in circumstances establishing their reliability, defendant's convictions should be vacated and a new trial granted. We did not retain jurisdiction.

For reasons not explained in the record, the remand hearing did not take place until November 16, 1990. At the remand hearing the judge, who was the trial judge, concluded that the statements were reliable. Defendant again appealed, and in an unpublished opinion on December 1, 1992, we affirmed. See State v. Cummings, No. A-2686-90T4 (App.Div. Dec. 1, 1992). Defendant's petition for certification was denied by the Supreme Court on May 13, 1993. See State v. Cummings, 133 N.J. 444, 627 A.2d 1148 (1993)

.

Defendant did not file his petition for post-conviction relief until February 1, 1996, ten years after his conviction. The petition for post-conviction relief that is supplied as part of petitioner's appendix does not set forth any reasons for petitioner having waited ten years from the date of his conviction to file the petition. Moreover, the petition does not set forth the grounds upon which the claim of ineffectiveness of counsel is based.¹

In response to the motion judge's question as to what constituted excusable neglect sufficient to relax the five-year time bar of R. 3:22-12, counsel indicated that petitioner had difficulty obtaining the trial transcripts and felt he could not submit a good faith motion for post-conviction relief in the absence of the transcripts. The motion judge suggested that neither petitioner nor counsel addressed the time bar issue at all. Counsel then argued that the appellate review process and the remand hearing justified relief. The motion judge ultimately rejected those conclusions and dismissed the petition based upon the five-year time bar set forth in R. 3:22-12.

In this appeal from the denial of his petition for post-conviction relief, petitioner also moves to supplement the record by including a certification setting forth his contentions as to why he delayed in filing the petition for post-conviction relief and why, in his opinion, his trial attorney was ineffective. The State correctly objects to the motion since the facts contained in the certification were not submitted to the trial judge, and he did not rule upon them. Nevertheless, rather than require petitioner to file a new petition and in the interest of fairness as well as judicial economy, we grant petitioner's motion due to its obvious relevance in determining whether a remand is required. See State v. Preciose, 129 N.J. 451, 457, 609 A.2d 1280 (1992)

.²

In his certification petitioner asserts that he did not file an earlier petition for post-conviction relief due to the pendency of the appeals, remand hearing, and appeals from that determination. He also asserts that he has difficulty reading and writing and did not realize until 1995 that he could move for post-conviction relief, and at that point it was difficult to obtain his trial transcripts, although those transcripts should have been in the possession of the Office of Public Defender. He further states that his trial attorney prevented him from testifying at trial by incorrectly advising him that he would be cross-examined regarding his prior adjudications of delinquency. He further asserted that he would have testified that he was at the apartment of Kyle Brown in Newark at the time the homicide took place and therefore could not have committed the crime. He also would have explained that the statements he made to Diggs, Notis, Simmons, and Kiser referred to a different robbery in Orange and not the robbery that led to this indictment. Moreover, petitioner asserts that his trial attorney only talked to him once before the trial began and was totally unprepared to defend him. In addition, he contends that his trial attorney failed to adequately investigate the case. Specifically, he contends that his trial attorney should have spoken to Alexander Edward Murphy, Jr., also known as Quasime, and "Big Head Salleem" whose addresses he supplied to his attorney. According to petitioner, Quasime, now deceased, was his cousin. Petitioner asserts that Quasime and Big Head Salleem were suspects in the case and would have been willing to talk to his attorney had his attorney attempted to interview them. Significantly, petitioner does not state what Quasime or Big Head Salleem would have told his attorney and how they would have exculpated him. Moreover, he supplies no certification from Big Head Salleem as to what he would have said.

In his certification petitioner also explains that during his trial the prosecutor argued that the gun used in the murders was sold to "Little Red". According to petitioner the prosecutor never found Little Red but he informed his attorney where Little Red could be located. Nevertheless, according to petitioner, his attorney made no effort to find or talk to Little Red. Again, petitioner asserts that Little Red would have spoken to his trial attorney but does not set forth what Little Red would have said. Nor does he supply an affidavit or certification from Little Red.

Finally, petitioner asserts in his certification that he now has information that the person responsible for the murder of the victim was Leroy Smith. Petitioner sets forth no facts as a basis for that claim.

On this appeal, petitioner raises the following issues:

POINT I THE TRIAL COURT ERRED IN HOLDING THAT THE PETITION FOR POST-CONVICTION RELIEF WAS OUT OF TIME. THE EXCEPTIONAL CIRCUMSTANCES OF THE CASE AMOUNT TO EXCUSABLE NEGLECT, AND THE INTERESTS OF JUSTICE REQUIRE A RELAXATION OF RULE 3:22-12. (PARTIALLY RAISED BELOW).

POINT II THE TRIAL COURT ERRED IN NOT GRANTING PETITIONER A FULL EVIDENTIARY HEARING BECAUSE HE MADE A PRIMA FACIE SHOWING THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM. (PARTIALLY RAISED BELOW).

POINT III PETITIONER'S CERTIFICATION SHOULD BE MADE PART OF THE APPELLATE RECORD BECAUSE IT SUBSTANTIATES THE IMPORTANCE OF THE CONSTITUTIONAL CLAIMS THAT DEFENDANT RAISED IN HIS PETITIONER FOR POST-CONVICTION RELIEF. (NOT RAISED BELOW).

Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus. State v. Afanador, 151 N.J. 41, 49, 697 A.2d 529 (1997); State v. Preciose, supra, 129 N.J. at 459, 609 A.2d 1280. It is a safeguard that provides a defendant with a means to challenge the legality of a sentence or a final judgment of conviction by raising issues that could not have been raised on direct appeal and therefore...