STATE OF NEW JERSEY VS. HAMID ABDUL-SHABAZZ (04-01-0037, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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-3413-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HAMID ABDUL-SHABAZZ,
Defendant-Appellant.
______________________________
Submitted February 13, 2018 – Decided June 6, 2018
Before Judges Fasciale and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
04-01-0037.
Joseph E. Krakora, Public Defender, attorney
for the appellant (Adam W. Toraya, Designated
Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Christopher W. Hsieh,
Chief Assistant Prosecutor, of counsel and on
the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Hamid Abdul-Shabazz appeals from an order denying
his second petition for post-conviction relief (PCR) following an
evidentiary hearing. We affirm.
On March 3, 2006, a jury found defendant guilty of first-
degree robbery; first-degree attempted murder; fourth-degree
aggravated assault; and second-degree possession of a weapon for
an unlawful purpose (collectively, the robbery charges).1 After
reaching its verdict, the jury found defendant guilty of second-
degree certain persons not to have a weapon. Defendant was
sentenced on August 25, 2006, to an aggregate prison term of
eighteen years subject to the No Early Release Act (NERA), N.J.S.A.
2C:43-7.2. We affirmed his conviction and sentence on direct
appeal, State v. Abdul-Shabazz, No. A-0305-06 (App. Div. Feb. 29,
2008), and his petition for certification was denied, 195 N.J. 523(2008).
Almost three months after certification was denied, defendant
filed a PCR petition alleging trial counsel was ineffective because
he failed to meet with the victim and the victim's mother to
discuss the victim's alleged intention to recant his out-of-court
identification of defendant as his assailant; failed to file a
motion to suppress the victim's out-of-court identification as a
1
Defendant was found not guilty of third-degree unlawful
possession of a weapon.
2 A-3413-15T4
product of an illegal arrest; and failed to file a motion to obtain
all the photographs in a database to argue to the jury. We
affirmed the PCR court's finding that defendant failed to establish
a prima facie claim of ineffective assistance of counsel under the
well-settled two-prong test set forth in Strickland v. Washington,
466 U.S. 668, 687 (1984), State v. Abdul-Shabazz, No. A-2531-11
(App. Div. Nov. 21, 2013), and our Supreme Court denied defendant's
petition for certification, 217 N.J. 624 (2014).
Shortly thereafter, on July 21, 2014, defendant filed a pro-
se motion2 to correct an illegal sentence under Rule 3:21-10(b).
Counsel was subsequently assigned to represent defendant. During
the PCR evidentiary hearing, the judge realized there was a
conflict and recused himself, resulting in Judge Randal C. Chiocca
taking over and conducting the evidentiary hearing anew.
At the hearing, defendant contended the court failed to
conduct a pre-trial conference under Rule 3:9-1(e)3 to advise him
2
Defendant's filing also included motions to compel discovery
previously ordered in the first PCR proceedings, and to convert
the gap-time credit awarded to jail-time credit, which were both
denied, and we will not address them because they are not the
subject of this appeal.
3
In 2016, the rule was restructured in order to more clearly
follow the temporal arrangement of pre-trial events, thus
paragraph (e) was re-designated paragraph (f). Since the
proceedings in question took place before the rule change, the
judge and the parties cite paragraph (e), which was in effect at
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of the maximum exposure he faced in the event that he was found
guilty at trial. He also claimed counsel was culpable for this
error because counsel failed to bring it to the court's attention
that such conference should be held. Defendant claimed that if
the court or counsel had made him aware of the prison time he
faced, he would have accepted the State's plea offer and would not
have gone to trial. He furthered asserted that after he was
indicted for unrelated homicide charges4 during the pendency of
the robbery charges, he was never advised that a prison sentence
on the robbery charges could run consecutively to the sentence
that was eventually imposed on the homicide charges when he pled
guilty to robbery and certain persons not to have a weapon.5
Trial counsel and defendant provided conflicting testimony
regarding the advice counsel gave concerning the robbery charges
plea offer and defendant's desire to go to trial. Counsel recalled
that defendant rejected the plea offer – something less than a
that time. To avoid confusion, we stay with the reference to
paragraph (e).
4
Defendant was indicted on four counts of murder, four counts of
first-degree robbery, a third-degree weapons offense, a second
degree-weapons offense, and a second-degree certain persons not
to have weapon.
5
Defendant was sentenced to a twelve-year term for the homicide
charges to run consecutive to the eighteen-year NERA sentence he
received for the robbery charges.
4 A-3413-15T4
fifteen-year term, perhaps a twelve-year term – and that defendant
wanted to use alibi witnesses at trial. Counsel further stated
that he explained to defendant the exposure he faced if convicted.
According to defendant, counsel gave no such advice in any of
their three pre-trial meetings.
In his oral decision, Judge Chiocca declared that he was not
treating the motion as one to correct an illegal sentence but as
a request for PCR, because it did not directly challenge the
sentence imposed by the sentencing judge; his direct appeal from
his sentence was denied; and he seeks to challenge the pre-trial
process. The judge denied PCR on both procedural and substantive
grounds.
Judge Chiocca found defendant's contention, that a Rule 3:9-
1(e) conference was not held, is barred under Rule 3:22-12(a)(2)
because it could have been raised in his first PCR petition. He
specifically found that "it's beyond any reasonable doubt that the
defendant knew what the factual predicate [– a lack of Rule 3:9-
1(e) conference –] for the relief sought before he filed his first
. . . PCR where he was represented by able counsel." Despite this
determination, the judge addressed the merits of Jenkins' claim
and found it had no merit. In crediting counsel's testimony and
rejecting defendant's testimony, the judge found that counsel
advised defendant of the exposure he faced if he declined the
5 A-3413-15T4
State's plea offer and lost at trial, and thus, "defendant suffered
no prejudice as a result of not having a formal pretrial conference
in strict accordance with Rule 3:9-1(e)." The judge elaborated:
[Defendant] exercised his right to go to trial
with the required full knowledge of the
potential consequences[,] which I find he was
fully informed, despite the fact that a formal
pretrial conference was not conducted on any
record before this Court. As a result, I'm
going to deny this motion.
As for defendant's contention that when he rejected the plea offer
he was not advised he could be subject to a consecutive prison
term if convicted on the pending robbery charges, Judge Chiocca
found "[t]here's nothing in [Rule 3:9-1(e)] or otherwise call[ed]
to the court's attention that construes that language to [apply
to] all other charges that the defendant may have had under other
indictments."
In this appeal, defendant argues:
POINT I
THE PCR COURT'S ORDER SHOULD BE REVERSED AND
THE DEFENDANT'S CONVICTION VACATED BECAUSE,
PRIOR TO THE TRIAL, HE RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL REGARDING THE PLEA OFFER
THAT WAS BEING MADE TO HIM AND THE MAXIMUM
EXPOSURE HE FACED.
POINT II
THE COURT ERRED IN DENYING THE DEFENDANT'S PCR
BECAUSE AT THE TIME OF THE PLEA NEGOTIATIONS
HE WAS ASSERTING HIS INNOCENCE AND HIS RIGHT
TO GO TO TRIAL.
6 A-3413-15T4
POINT III
THE COURT MISAPPLIED ITS DISCRETION IN
APPLYING [RULE] 3:22-4, AS A PROCEDURAL BAR
AGAINST THE DEFENDANT'S FILING FOR POST
CONVICTION RELIEF IN THIS CASE.
In a pro se supplemental brief, defendant argues in a single
point:
THE PCR COURT JUDGE ABUSED HIS DISCRETION IN
DENYING RELIEF, AND BY IMPOSING A PROCEDURAL
BAR TO DEFENDANT'S CLAIM WITHOUT AFFORDING
COUNSEL A CHANCE TO ARGUE ANY POTENTIAL
EXCEPTIONS TO THE BAR, ESPECIALLY, AFTER THE
INITIAL JUDGE HEARING THIS MATTER HAD DENIED
THE STATE'S PROCEDURAL BAR ARGUMENTS.
Having considered defendant's arguments in light of the
record and applicable legal standards, they lack sufficient merit
to warrant discussion in a written opinion, Rule 2:11-3(e)(2), and
we affirm substantially for the reasons set forth by Judge Chiocca
in his well-reasoned oral decision. We add only the following.
In accordance with Rule 3:22-12(a)(1), a PCR petition must
be filed within five years after the entry of the judgment of
conviction sought to be challenged. Rule 3:22-12(a)(2) provides
that a second PCR petition must be filed within one year of either
the date that the constitutional right asserted was newly
recognized by the United States Supreme Court or New Jersey Supreme
Court; or the date on which the factual predicate for the relief
sought was discovered, if the predicate could not have been
7 A-3413-15T4
discovered earlier with reasonable diligence; or the date of the
denial of the first PCR petition with ineffective assistance of
counsel that represented defendant on the first petition is being
alleged. And under Rule 3:22-4(b), a second PCR petition must be
dismissed if it is not timely under Rule 3:22-12(a)(2). While
these time limits may be waived to prevent a fundamental injustice,
they must be viewed in light of their dual key purposes: to ensure
that the passage of time does not prejudice the State's retrial
of a defendant and to respect the need for achieving finality.
State v. DiFrisco, 187 N.J. 156, 166-67 (2006).
We are satisfied that defendant's second PCR petition, filed
eight years after his judgment of conviction, and a few weeks
after the denial of his first PCR, is clearly barred under Rule
3:22-12(a)(2). Defendant has articulated no basis to relax the
clear restrictions imposed by this rule concerning a second PCR
petition by a showing of excusable neglect or manifest injustice.
He does not rely on a new rule of constitutional law. His factual
predicate, that he was not advised of his trial exposure, was
readily discoverable earlier and should have been raised, in his
first PCR petition. Finally, the second petition did not allege,
nor was it argued before Judge Chiocca, that the first PCR counsel
provided ineffective assistance by not arguing that a Rule 3:9-
1(f) conference was not held. Thus, defendant's argument that his
8 A-3413-15T4
first PCR counsel did not raise the contention in the first
petition should not be considered as it was raised for the first
time before us. See State v. Robinson, 200 N.J. 1, 20 (2009).
Because Judge Chiocca's ruling on the merits is based upon
an evidentiary hearing, we must uphold his factual findings, "so
long as those findings are supported by sufficient credible
evidence in the record." State v. Rockford, 213 N.J. 424, 440
(2013) (quoting Robinson, 200 N.J. at 15). Additionally, we defer
to a judge's findings that are "substantially influenced by [the
trial judge's] opportunity to hear and see the witnesses and to
have the 'feel' of the case, which a reviewing court cannot enjoy."
Ibid. (alteration in original) (quoting Robinson, 200 N.J. at 15).
We owe particular deference to the trial judge's credibility
determinations. See State v. Locurto, 157 N.J. 463, 474 (1999).
Considering these guidelines, we see no reason to disturb Judge
Chiocca's finding that counsel fully informed defendant of the
penal consequences of rejecting the plea offer and finding of
guilty at trial, as well as the possibility of consecutive
sentences if he was convicted of the unrelated homicide charges.
Affirmed.
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