STATE OF NEW JERSEY VS. SHEIK TRICE (02-06-1371 AND 10-03-0393, HUDSON COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3777-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHEIK TRICE, a/k/a
JAMAL TRICE, SHEIK N. TRICE,
and JAMAL RICEL,
Defendant-Appellant.
Submitted April 18, 2018 – Decided June 26, 2018
Before Judges Alvarez and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment Nos.
02-06-1371 and 10-03-0393.
Joseph E. Krakora, Public Defender, attorney
for appellant (Kevin G. Byrnes, Designated
Counsel, on the brief).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Luisa M. Florez,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Sheik Trice appeals from a March 20, 2017 order
denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm because defendant's petition was
time-barred under Rule 3:22-12(a)(1) as to one indictment, and
otherwise lacks merit.
On July 18, 2003, defendant was sentenced in accordance with
a plea agreement on a charge of third-degree possession of a
controlled dangerous substance with intent to distribute within
1000 feet of school property, N.J.S.A. 2C:35-7, to a five-year
term of imprisonment subject to parole ineligibility of two years,
to be served concurrently to a federal sentence as well as a
violation of probation sentence. On May 25, 2012, again pursuant
to a plea agreement, defendant was sentenced on a third-degree
conspiracy to distribute cocaine, N.J.S.A. 2C:5-2 and 2C:35-
5(b)(3), to a period of probation for two years.
When defendant entered his guilty plea on May 9, 2003, he and
his attorney developed the factual basis as follows:
Q [Mr.] Trice, on February 11th of
2002 in the City of Jersey City, did you
possess a controlled dangerous substance,
namely marijuana?
A Yes.
Q Did you know the substance was in
fact marijuana?
A Yes.
Q And what were you going to do with
that marijuana?
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A Smoke it.
Q Were you going to share it with
others when you were smoking it?
A Yes.
Q And were you within 1,000 feet of a
school zone at that time?
A Yes.
Pertinent to the 2012 offense, police seized drugs from a
property owned by defendant in Jersey City. Defendant and his
attorney engaged in the following exchange in establishing a
factual basis:
[Defense counsel]: And on December 1st, 2009
[the building] was being renovated.
THE DEFENDANT: Yes.
[Defense counsel]: And an individual that
was renovating was also keeping heroin there
that was going to end up being distributed.
THE DEFENDANT: Yes.
[Defense counsel]: And you knew about that?
THE DEFENDANT: Yes.
[Defense counsel]: And you permitted that to
go on?
THE DEFENDANT: Yes.
[Defense counsel]: Thank you.
[Prosecutor]: The State's satisfied, Your
Honor.
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Defendant did not pursue direct appeals of either conviction.
Instead, on May 16, 2016, defendant filed a PCR petition alleging
ineffective assistance of counsel. Defendant certified that, as
to the 2012 charge, he lived in the downstairs apartment of the
building, while the upstairs apartment was being renovated. A
Robert Murphy claimed ownership of the drugs – Murphy was "an
associate who [defendant] allowed to store some personal items in
the upstairs flat while it was being refurbished for [defendant's]
occupancy[.]"
Defendant also certified that his attorney explained to him
that because he allowed Murphy to store his property in the
apartment, defendant too was "culpable under the theory of joint
or constructive possession." The attorney did not inform him that
he was guilty of the offense only if he had actual knowledge of
the presence of the drugs.
At the May 25, 2012 sentencing hearing, defendant's attorney
stated that although defendant had denied to the probation officer
who prepared the presentence report being aware that drugs were
being stored in the apartment, he "was basically trying to iterate
- - reiterate at the time that he did not have heroin there. If
Your Honor recalls the factual basis was that he allowed the
gentleman to store the heroin in the building while it was being
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renovated. He stands by what he said at the time of the plea."
After his lawyer's statement, defendant agreed. When asked by the
court if he had anything further to add, defendant responded "No.
Nothing."
Defendant claimed in his certification that he allowed the
sentencing to proceed because he would only be placed on probation
and would be released that day, whereas the case could linger for
months if he went to trial. He reiterated that had he understood
the elements of the offense included actual knowledge that the
drugs were in the apartment, he would have insisted on going to
trial.
With regard to the 2003 conviction, defendant contended that
he did not establish a legally adequate factual basis for his
guilty plea to possession with intent to distribute. He argued
that relevant case law provides no one individual can be found
guilty of distribution when ownership is joint and drugs are
shared. Hence, his attorney was ineffective for failing to explain
that the facts did not support the crime.
The Law Division judge found that defendant's unsupported
assertions did not establish that counsel had failed to provide
effective and competent assistance, as required by the first prong
of Strickland v. Washington, 466 U.S. 668, 688 (1984); State v.
Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland standard
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in New Jersey). He also found that defendant failed to demonstrate
a reasonable probability that but for counsels' errors, he would
not have entered guilty pleas and would have insisted on going to
trial. See State v. DiFrisco, 139 N.J. 434, 457 (1994) (citations
omitted). Accordingly, he did not satisfy the second prong either.
Ibid. Since defendant failed to establish a prima facie case in
support of post-conviction relief, no hearing was necessary.
Furthermore, pursuant to Rule 3:22-12, defendant was barred from
disputing the viability of the 2003 plea as the petition was filed
more than five years beyond the entry of judgment. Defendant did
not establish excusable neglect that allowed the rule to be relaxed
and the arguments lacked merit.
On appeal, defendant raises the following points:
POINT I
THE FIVE-YEAR PROCEDURAL BAR FOR THE FILING
OF A PETITION FOR POST-CONVICTION RELIEF (PCR)
SHOULD NOT APPLY
A. Enforcing the Procedural Bar Constitutes
a Manifest Injustice
B. The Procedural Bar Should Not Apply Due
to Excusable Neglect
POINT II
THE GUILTY PLEAS MUST BE SET ASIDE BECAUSE
THEY LACK A FACTUAL BASIS
POINT III
THE DEFENDANT WAS DENIED THE RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED
BY THE SIXTH AMENDMENT TO THE UNITED STATES
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CONSTITUTION AND ART. I, PAR. 10 OF THE NEW
JERSEY CONSTITUTION
POINT IV
THE DEFENDANT IS ENTITLED TO AN EVIDENTIARY
HEARING
We reject defendant's arguments as to the 2003 plea because his
petition is time-barred. The petition lacks substantive merit in
any event as to both the 2003 and 2012 convictions.
I.
The rule precludes PCR petitions filed more than five years
after entry of a judgment of conviction unless the delay was "due
to defendant's excusable neglect and . . . there was a reasonable
probability that if defendant's factual assertions were found to
be true enforcement of the time bar would result in a fundamental
injustice." R. 3:22-12. Our Supreme Court has stated that "[t]he
time bar should be relaxed only 'under exceptional circumstances'
because '[a]s time passes, justice becomes more elusive and the
necessity for preserving finality and certainty of judgments
increases.'" State v. Goodwin, 173 N.J. 583, 594 (2002)
(alterations in original) (quoting State v. Afanador, 151 N.J. 41,
52 (1997)).
On appeal, defendant contends it would be manifestly unjust
to apply the rule to his case because the factual basis for his
2003 guilty plea was legally flawed. He argues that the bar should
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not be applied because he was never advised of the time limits for
PCR and only recently learned of the procedure.
We have often stated that ignorance of the time bar, by
itself, simply does not establish excusable neglect. See, e.g.,
State v. Brewster, 429 N.J. Super. 387, 400 (App. Div. 2013) ("If
excusable neglect for late filing of a petition is equated with
incorrect or incomplete advice, long-convicted defendants might
routinely claim they did not learn about the deficiencies in
counsel's advice on a variety of topics until after the five-year
limitation period had run."). Thus, defendant has failed to
demonstrate the excusable neglect necessary to avoid the effect
of the rule.
II.
The Strickland standard requires a defendant to establish
that counsel's representation fell both outside the range of
professional competence and that in a plea situation, but for
counsel's errors, he would have taken the matter to trial. See
DiFrisco, 139 N.J. at 457.
Defendant's argument that he only acknowledged sharing
marijuana, as opposed to distributing it, is mistaken. He said
the marijuana was his, not that it was jointly owned, and that he
intended to share it. That falls within the definition of
distribution found in N.J.S.A. 2C:35-2. Defendant did not state
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in his factual basis that he was in joint possession with those
with whom he intended to share his drugs.
On the 2012 charge, defendant gave a scant factual basis.
However, he clearly stated he knew that the person whose drugs
were seized by the authorities was keeping them there, and that
they were intended for distribution. He knew it and "permitted"
it to happen. The judge gave him the opportunity to refute his
sworn factual basis at sentencing when his attorney raised the
issue and he did not do so. Thus, we are satisfied that on the
merits defendant cannot meet the Strickland standard. He has
failed to demonstrate a reasonable probability that, but for his
attorney's alleged incomplete explanation of the law he would have
taken the matter to trial.
Affirmed.
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