STATE OF NEW JERSEY VS. REGINALD L. LEACH (01-04-0403, PASSAIC COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-5271-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
REGINALD L. LEACH, a/k/a
ALVIN BARINO, BUCKY,
ESDORN EDWARDS,
LAMONT EDWARDS,
TOMMY LEACH, RASHEEN,
and JERMAINE ROBERTS,
Defendant-Appellant.
__________________________
Submitted January 27, 2021 – Decided March 24, 2021
Before Judges Sumners and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 01-04-0403.
Reginald L. Leach, appellant pro se.
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Ali Y. Ozbek, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Reginald Leach appeals the Law Division's July 10, 2019 order
dismissing his fourth post-conviction relief (PCR) petition without an
evidentiary hearing. He argues:
POINT I
THE TRIAL COURT'S DECISION TO DENY
APPELLANT A PLENARY HEARING ON HIS
INITIAL PETITION FOR POST-CONVICTION
RELIEF, DEPRIVED HIM OF HIS
CONSTITUTIONAL RIGHTS UNDER THE SIXTH
AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES AND NEW JERSEY
CONSTITUTIONS. (NOT RAISED BELOW.)
POINT II
THE TRIAL COURT SHOULD NOT HAVE DENIED
THE POST-CONVICTION [RELIEF] PETITION ON
THE PAPERS, WITHOUT CONDUCTING A
PLENARY HEARING IN ORDER TO PROVIDE
APPELLANT AN OPPORTUNITY TO MAKE A
PRIMA FACIE SHOWING FOR A FULL
EVIDENTIARY HEARING.
Considering these arguments, the record, and the applicable law, we affirm.
On March 18, 2004, a jury found defendant guilty of first-degree armed
robbery, third-degree criminal restraint, and fourth-degree unlawful possession
of an imitation firearm arising from a robbery of a Parsippany clothing store on
September 29, 2000. Defendant was sentenced on July 16, 2004, to an aggregate
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prison term of twenty years, subject to a ten-year period of parole ineligibility.
The sentence was consecutive to a February 20, 2004 aggregate extended-term
forty-year sentence, subject to a twenty-year period of parole ineligibility, that
defendant received for first-degree robbery and third-degree criminal restraint
involving another clothing store robbery. We upheld the conviction, but despite
"not [being] persuaded that the [trial] court erred in the imposition of the
sentence, . . . we nevertheless remand[ed] [the first-degree robbery sentence] for
further consideration in light of the Supreme Court's recent opinion in State v.
Pierce, 188 N.J. 155 (2006)." State v. Leach, No. A-4766-03T4 (App. Div. Dec.
28, 2006), (slip op. at 3-4), certif. denied, 190 N.J. 396 (2007).
On October 1, 2007, defendant filed his first PCR petition. The petition
was denied but the trial court's order and decision were not included in the
record.
On or about March 17, 2014, defendant filed a second PCR petition. On
October 8, the PCR judge issued an order denying the petition as procedurally
deficient under Rule 3:22-8 because defendant "failed to attach the decision
from his first [PCR] petition . . . that was filed on October 1, 2007. Furthermore,
. . . defendant did not include his brief in support of his initial petition, nor did
he attach the State's brief in opposition[.]"
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On March 15, 2016, defendant filed a pro se motion to correct an illegal
sentence, claiming the State failed to timely file its motion for an extended term
sentence related to his February 20, 2004 conviction. The application also
contended that trial counsel was ineffective in failing to advise defendant of the:
(1) possibility of an extended term sentence if he was found guilty; (2) strength
of the State's evidence against him; and (3) the State's plea offer, the plea cutoff
date, and his maximum sentence exposure. Although defendant did not
designate the motion as a PCR petition, we consider it his third PCR petition
because he made claims of ineffective assistance of counsel.
On April 30, 2018, Judge Sohail Mohammed issued an order and written
decision denying the application. The judge found that the record revealed the
State's extended term motion was timely filed. The judge also found that the
second or subsequent ineffective assistance claims were untimely because they
were not filed within one year after the date on which defendant alleged: (1)
reliance on a previously unavailable and newly recognized constitutional rule of
law, R. 3:22-12(a)(2)(A); (2) newly discovered facts that "could not have been
discovered earlier through the exercise of reasonable diligence[,]" R. 3:22-
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12(a)(2)(B); or (3) a prima facie case that his first or subsequent PCR counsel
was ineffective, R. 3:22-4(b)(2)(C).1
The judge also found that defendant's claims were procedurally barred
under Rule 3:22-4(b). Noting defendant's two prior PCR applications, he
reasoned
the rule requires all petitions for post-conviction relief
beyond the first not only be timely filed pursuant to
. . . [Rule] 3:22-12(a)(2), but also allege that it relies on
a new rule of constitutional law made retroactive to the
defendant’s petition or that the factual predicate for the
relief sought could not have been discovered earlier and
would raise a reasonable probability that the relief
sought would be granted or allege on its face a prima
facie case of ineffective assistance of counsel that
represented the [d]efendant on the first application for
post-conviction relief.
Defendant filed his fourth PCR petition on September 4, 2018, arguing his
conviction should be reversed because trial counsel "failed to [advise him] of
the laws governing [his] sentence[e] [exposure] in his case. And as a result, [he]
was deprived of information necessary to make an informed decision to accept
or reject the State’s plea offer[]" of "eighteen years, with no more than nine
years of parole ineligibility." Defendant contended that he could not have raised
1
Defendant's appeal was dismissed on December 5, 2018, for failure to pay the
filing fee.
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the argument in his previous PCR petitions, and that the five-year time bar under
Rule 3:22-12 should be relaxed under Rule 1:1-2.
Judge Mohammed entered an order on July 10, 2019 detailing that relief
was denied without an evidentiary hearing because defendant failed to present a
prima facie case of ineffective assistance of counsel. The order stated the
petition was time-barred under Rules 3:22-4(b)(1) and 3:22-12(a)(2) because
there were no valid reasons for relaxing the time requirements, and that Rule
1:1-2, which is a general court rule allowing the relaxation of filing deadlines,
did not apply to PCR petitions, R. 1:3-4(c). The judge also determined the
petition was procedurally barred under Rule 3:22-8 because defendant failed "to
provide any information regarding his previous [PCR] petitions[;]" the same
deficiency noted in the October 8, 2014 order denying defendant’s second PCR
petition.
We review de novo a PCR judge's factual findings made without an
evidentiary hearing and legal conclusions. State v. Harris, 181 N.J. 391, 415-
16 (2004). We affirm substantially for the reasons forth by Judge Mohammed
in his cogent written decision. We add the following brief comments.
There is no merit to defendant's contention that the subject PCR petition
is his first PCR petition regarding his July 16, 2004 convictions for robbery,
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criminal restraint, and unlawful possession of an imitation firearm because his
previous PCR petitions only pertained to his February 20, 2004 convictions for
robbery and criminal restraint. The record provided does not confirm this, and
thus, this petition must be treated as repetitive of those denied in the prior orders.
Moreover, even if his latest PCR petition was the first petition to address
the July 16, 2004 convictions, it is untimely because it was filed more than five
years after the conviction date without proof of "excusable neglect and that there
is a reasonable probability that if the defendant's factual assertions were found
to be true enforcement of the time bar would result in a fundamental injustice[.]"
R. 3:22-12(a)(1)(A); State v. Brewster, 429 N.J. Super. 387, 400 (App. Div.
2013).
In short, defendant has not presented any factual or legal basis for us to
alter the July 10, 2019 order. To the extent that we have not addressed any of
defendant's arguments it is because we have concluded that they are without
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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