State of New Jersey v. Joshua Malmgren ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-0324-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSHUA MALMGREN,
Defendant-Appellant.
_______________________
Submitted December 11, 2023 – Decided March 15, 2024
Before Judges Gilson and Bishop-Thompson.
On appeal from the Superior Court of New Jersey, Law
Division, Cape May County, Indictment No. 12-11-
0748.
Joseph E. Krakora, Public Defender, attorney for
appellant (Andrew Robert Burroughs, Designated
Counsel and on the briefs).
Jeffrey H. Sutherland, Cape May County Prosecutor,
attorney for respondent (Gretchen Anderson Pickering,
Senior Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Joshua Malmgren appeals from the July 27, 2022 order denying
his petition for post-conviction relief (PCR) without an evidentiary hearing. We
affirm because defendant's petition is time-barred under Rule 3:22-12(a)(1) and
otherwise lacks merit.
I.
In November 2012, a grand jury returned an indictment, charging
defendant with two counts of first-degree aggravated manslaughter, N.J.S.A.
2C:11-4(a), and two counts of vehicular homicide, N.J.S.A. 2C:11-5. Defendant
killed two teenage girls when he swerved onto the shoulder of the road while
driving under the influence of alcohol and prescription drugs and driving while
distracted.
On September 2, 2014, defendant pleaded guilty to two counts of first-
degree aggravated manslaughter. Before defendant entered his guilty plea, he
moved to suppress the results of his blood alcohol test. Defendant preserved
this issue on appeal pursuant to Rule 3:5-7(d) because the issue was decided
prior to our Supreme Court's decision in State v. Adkins, 221 N.J. 300 (2015).
Three months later, on December 19, 2014, defendant was sentenced to
two consecutive nine-year terms, with periods of parole ineligibility and parole
supervision as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2.
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Defendant was also sentenced to a concurrent thirty-day jail term for driving
under the influence, N.J.S.A. 39:4-50.
The details of defendant's offenses are recounted in our unpublished
opinion remanding the matter for further review to determine whether sufficient
exigency existed to draw defendant's blood absent a warrant. State v. Malmgren,
No. A-3119-14 (App. Div. December 15, 2016) (slip op. at 2). In that opinion,
we did not address defendant's excessive sentencing argument.
In accordance with our direction, a plenary hearing was held. Following
the hearing, the trial court rendered an oral decision finding sufficient exigency
existed to justify testing defendant's blood without a search warrant after the
fatal automobile accident.
Defendant filed a second appeal challenging the trial court's decision,
arguing the blood draw was not supported by the evidence and that his sentence
was excessive. On July 21, 2020, we affirmed the trial court ruling on the blood
draw, holding that there were sufficient facts showing that the blood draw was
permissible. We also affirmed defendant's convictions and sentence. State v.
Malmgren, No. A-4095-17 (App. Div. July 21, 2020) (slip op. at 2-3.)
On April 19, 2021, defendant, then self-represented, filed a PCR petition.
Appointed PCR counsel filed an amended PCR petition. After hearing
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argument, the PCR court issued a written decision on July 27, 2022, denying
defendant's petition without an evidentiary hearing. The PCR court concluded
defendant failed to establish excusable neglect for his filing his petition 487 days
after the five-year PCR time bar under Rule 3:22-12(a)(1).
II.
On appeal, defendant argues the following:
POINT ONE
[DEFENDANT] [HAS] ESTABLISHED A PRIMA
FACIE CASE THAT HE WAS DEPRIVED
EFFECTIVE ASSISTANCE OF COUNSEL AT THE
PLEA STAGE OF THE CRIMINAL PROCEEDINGS,
WHICH WARRANTS AN EVIDENTIARY
HEARING.
POINT II
[DEFENDANT] WAS DEPRIVED EFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL DUE TO
COUNSEL’S FAILURE TO RAISE THE ISSUES
THAT WERE ATTEMPTED TO BE PRESERVED
FOR APPEAL BY TRIAL COUNSEL, WHICH HAD
ENOUGH MERIT TO WARRANT APPELLATE
REVIEW.
POINT III
[DEFENDANT'S] PCR SHOULD NOT BE
DISMISSED ON PROCEDURAL TIME
LIMITATION GROUNDS, PURSUANT TO [RULE]
3:22-12, BECAUSE HE WAS ESTABLISHING
EXCUSABLE NEGLECT AND THAT
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ENFORCEMENT OF THE BAR WOULD RESULT IN
A FUNDAMNETAL INJUSTICE.
We apply a de novo standard of review when a PCR court does not conduct
an evidentiary hearing. State v. Blake, 444 N.J. Super. 285, 294 (App. Div.
2016) (citing State v. Harris, 181 N.J. 391, 420-21 (2004)). When petitioning
for PCR, a defendant must establish entitlement to "PCR by a preponderance of
the evidence." State v. O'Donnell, 435 N.J. Super. 351, 370 (App. Div. 2014)
(citing State v. Preciose, 129 N.J. 451, 459 (1992)).
"Post-conviction relief is New Jersey's analogue to the federal writ of
habeas corpus." State v. Pierre, 223 N.J. 560, 576, (2015) (quoting State v.
Preciose, 129 N.J. 451, 459 (1992)). Post-conviction relief provides "a built-in
'safeguard that ensures that a defendant was not unjustly convicted.'" State v.
Nash, 212 N.J. 518, 540 (2013) (quoting State v. McQuaid, 147 N.J. 464, 482
(1997)). A petition for post-conviction relief is not a substitute for a direct
appeal. State v. Mitchell, 126 N.J. 565, 583 (1992).
Rule 3:22-12 prescribes the time limitations for filing first a PCR petition.
Generally, the rule provides that "no petition shall be filed . . . more than [five]
years after the date of the entry . . . of the judgment of conviction that is being
challenged." R. 3:22-12(a)(1). The five-year time limitation of Rule 3:22-12
runs from the date of the conviction or sentencing, whichever the defendant is
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challenging. State v. Milne, 178 N.J. 486, 491 (2004); State v. Goodwin, 173
N.J. 583, 594 (2002).
This time bar may be relaxed if the PCR petition "alleges facts showing
that the delay beyond said time was due to defendant's 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). To establish excusable neglect, a
defendant must provide more than "a plausible explanation for a failure to file a
timely PCR petition." State v. Norman, 405 N.J. Super. 149, 159 (App. Div.
2009). "To determine whether a defendant has asserted a sufficient basis for
relaxing the Rule's time restraints, [a 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. Afanador, 151 N.J. 41, 52 (1997)).
Here, the record is clear that defendant's PCR petition is time-barred.
Defendant was sentenced and the judgment of conviction was entered on
December 19, 2014. He was, therefore, required to file his PCR petition no later
than December 19, 2019 in accordance with Rule 3:22-12(a)(1). Instead,
defendant's petition was filed well over one year later. We agree with the PCR
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court that defendant did not show excusable neglect, and thus, we are not
persuaded by defendant's argument that COVID-19 quarantine procedures
precluded access to the law library. The COVID restrictions did not become
effective until March 2020, approximately ninety days after the PCR filing
deadline. Defendant's implausible "explanation" for failing to timely file his
PCR petition fails to satisfy circumstances justifying excusable neglect.
Norman, 405 N.J. Super. at 159.
We also point out that defendant's appeal challenging the judgment of
conviction and sentence did not toll the filing of this PCR petition. It is well-
established the time to file a PCR petition is neither stayed nor tolled by
appellate or other review proceedings. See State v. Dillard, 208 N.J. Super. 722,
727 (App. Div. 1986) (citing R. 3:22-12); State v. Dugan, 289 N.J. Super. 15,
19 (App. Div. 1996).
To establish a claim of ineffective assistance of counsel, defendant must
satisfy a two-part test: (1) "counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment,"
and (2) "the deficient performance prejudiced the defense." Strickland v.
Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42, 52 (1987).
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A failure to satisfy either prong of the Strickland standard requires the denial of
a PCR petition. Strickland, 466 U.S. at 700; Fritz, 105 N.J. at 52.
In the context of a guilty plea, when a defendant claims ineffective
assistance of counsel, he or she must show: "counsel's assistance was not 'within
the range of competence demanded of attorneys in criminal cases'; and . . . 'that
there is a reasonable probability that, but for counsel's errors, [the defendant]
would not have pled guilty and would have insisted on going to trial.'" State v.
Nunez-Valdez, 200 N.J. 129, 139 (2009) (alteration in original) (quoting State
v. DiFrisco, 137 N.J. 434, 457 (1994)).
Having reviewed the record, we conclude, as did the PCR court, that
defendant's various claims of ineffective assistance of counsel do not meet either
the performance or prejudice prong of the Strickland/Fritz test. To the extent
we have not expressly addressed any arguments made in support of defendant's
appeal, we have determined they are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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