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NOT FOR PUBLICATION WITHOUT THE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
Motion for reconsideration granted.
Resubmitted April 16, 2024 – Decided April 16, 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, 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 appeals from a July 27,2022 order denying his petition for post-
conviction relief (PCR). The PCR court found that defendant had filed the
petition late, without excusable neglect. The court also held that defendant had
failed to establish grounds for withdrawing his guilty plea. Having conducted a
de novo review, we agree and affirm.1
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
1
On March 15, 2024, we issued an opinion in this matter. Thereafter, defendant
filed a motion for reconsideration, questioning whether we had addressed the
points raised in his appellate brief. We granted defendant's motion for
reconsideration and issue this opinion, which amends and supersedes our earlier
opinion.
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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.
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
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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
argument, the PCR court issued a written decision on July 27, 2022, denying
defendant's petition without an evidentiary hearing. The PCR court rejected
defendant's explanation that the delay in filing his PCR was due to the
prosecution of his direct appeal, the misadvise of trial counsel in 2014 that he
had to wait until his direct appeal was completed prior to filing a PCR petition,
and the COVID-19 pandemic prevented him from timely filing an appeal. The
court also rejected defendant's argument that his plea agreement was conditioned
on the preservation of his right to appeal pre-trial motions. The PCR court
concluded defendant failed to establish excusable neglect for 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
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THE IMPOSITION OF THE TIME BAR IN THIS
CASE WAS MANIFESTLY UNFAIR AS
DEFENDANT HAD SHOWN EXCUSABLE
NEGLECT AND THAT THE INTERESTS OF
JUSTICE REQUIRED RELAXATION OF THE
PROCEDURAL BAR.
POINT II
AS DEFENDANT, DID NOT VOLUNTARILY,
KNOWINGLY[,] AND INTELLIGENTLY WAIVE
HIS APPELLATE RIGHTS WHEN HE ENTERED A
GUILTY PLEA, THE PLEA SHOULD BE
WITHDRAWN AND THE MATTER REMANDED
FOR TRIAL.
1. Defendant did not voluntarily, knowingly, and
intelligently waive his appellate rights.
2. The State's failure to timely object to trial counsel's
notice that defendant preserved his appellate rights
precludes it from now arguing in opposition.
POINT III
APPELLATE COUNSEL'S FAILURE TO RAISE ON
DIRECT APPEAL DEFENDANT'S CLAIMS OF
TRIAL COURT ERRORS WAS PREJUDICIAL AS IT
AMOUNTED TO "FOREITURE OF THE
PROCEEDING."
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
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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 Preciose,
129 N.J. at 459). 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 a first 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
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
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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
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
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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).
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]
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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)).
"Generally, a guilty plea constitutes a waiver of all issues which were or
could have been addressed by the trial judge before the guilty plea." State v.
Davila, 443 N.J. Super. 577, 585 (App. Div. 2016) (quoting State v. Robinson,
224 N.J. Super. 495, 498 (App. Div. 1988)). However, "pursuant to Rule 3:9-
3(f), a defendant may appeal those adverse decisions specifically reserved by a
conditional guilty plea entered in accordance with the Rule." Id. at 586.
Defendant's argument that he entered a conditional plea premised on the
preservation of his appeal rights lacks merit. In the plea agreement, defendant
preserved only two motions on appeal: the motion to suppress physical evidence
and the denial of his acceptance into the pretrial intervention program. In
contrast, defendant waived his right to appeal the denial of all other pretrial
motions. During the plea hearing, trial counsel placed on the record that the
negotiated plea pursuant to "[Rule] 3:9-3(d) [was a] no appeal provision."
Moreover, when questioned by the court defendant testified that he reviewed
with his attorney and understood each question in the plea agreement.
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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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