STATE OF NEW JERSEY VS. BARRINGTON G. MCDONALD (07-03-0503, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3470-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BARRINGTON G. MCDONALD,
Defendant-Appellant.
___________________________
Submitted September 18, 2018 – Decided October 23, 2018
Before Judges Rothstadt and Gilson.
On appeal from Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 07-03-0503.
Barrington G. McDonald, appellant pro se.
Damon G. Tyner, Atlantic County Prosecutor, attorney
for respondent (John J. Santoliquido, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Barrington G. McDonald appeals from the dismissal of his
second petition for post-conviction relief (PCR). We affirm because defendant's
petition was time-barred under Rule 3:22-12(a)(2) and otherwise lacks merit.
In January 2007, defendant was driving in Atlantic City while intoxicated
and he struck and caused serious bodily injury to a pedestrian. The State alleged
that the pedestrian was struck within 1,000 feet of a school and defendant was
indicted for second-degree assault by automobile while driving in a school zone,
N.J.S.A. 2C:12-1(c)(3)(a), and fourth-degree causing injury while driving
without a license, N.J.S.A. 2C:40-22(b). Defendant was also issued summonses
for several motor vehicle violations. Several months later, defendant pled guilty
to second-degree assault by automobile while driving in a school zone. He also
pled guilty to driving while intoxicated, N.J.S.A. 39:4-50, and driving with a
suspended license, N.J.S.A. 39:3-40. Under defendant's plea agreement, the
prosecutor agreed to recommend that defendant be sentenced in the third-degree
range to three years in prison.
Prior to sentencing, defendant moved to withdraw his guilty plea claiming
that the plea was not knowing and intelligent because it was not clearly
established that the accident occurred in a school zone. The trial court denied
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defendant's motion and sentenced him to three years in prison in accordance
with the plea agreement.
On direct appeal, we affirmed defendant's convictions for second-degree
assault by auto in a school zone and driving while intoxicated. State v.
McDonald, A-4937-07 (App. Div. Aug. 25, 2010).1 The Supreme Court granted
certification and also affirmed. State v. McDonald, 211 N.J. 4 (2012).
On his direct appeal, defendant argued that there was no proof that his
accident occurred within 1,000 feet of school property. In that regard, he
contended that the school at issue was on property owned by a church, but the
school building itself was not within 1,000 feet of the accident. The Supreme
Court rejected that argument and held that the "accident occurred within 1,000
feet of a school property used for school purposes that meets the standard of
N.J.S.A. 2C:12-1(c)(3)(a)[.]" Id. at 10.
Defendant filed a first petition for PCR in August 2012. He contended
that his plea counsel had been ineffective in failing to obtain a school zone map
before he pled guilty. The first PCR court denied that petition in September
2013. We affirmed that denial and the Supreme Court denied certification. State
1
We remanded for further proceedings regarding defendant's conviction for
driving with a suspended license.
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v. McDonald, No. A-1637-13 (App. Div. Aug. 3, 2015), certif. denied, 223 N.J.
556 (2015).
Defendant filed a second petition for PCR on August 2, 2016. The second
petition, like the first petition, claimed that plea counsel, as well as defendant's
first PCR counsel, had been ineffective in not obtaining a school zone map and
failing to investigate the scope of the school zone. The second PCR court denied
the petition in an order entered on February 17, 2017. In response to a letter
sent from defendant, the court issued a second order on March 17, 2017
dismissing the second petition. The second PCR court issued letter opinions in
support of both the February and March 2017 orders.
On this appeal, defendant challenges the dismissal of his second petition
for PCR. Defendant makes several different arguments, but all of those
contentions are based on his claim that the motor vehicle accident did not occur
within 1,000 feet of a school and, therefore, he did not violate N.J.S.A. 2C:12-
1(c)(3)(a). Specifically, on this appeal defendant makes four main arguments,
which he articulates as follows:
POINT I (A) – DEFENDANT IS ENTITLED TO
POST-CONVICTION RELIEF BECAUSE THE
STATUTE CONCERNING THE SCHOOL ZONE
PORTION OF [2C:12-1(c)(3)(a)] (EVEN AS
AMENDED) (Aa34) BECAUSE THE STATUTE WAS
AMBIGUOUS AND THE LAW WAS NOT SETTLED
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WITH RESPECT TO SCHOOL PROPERTY VERSUS
DIOCESEAN CHURCH PROPERTY ISSUE AT THE
TIME OF THE ACCIDENT, PLEA HEARING OR
EVEN AT SENTENCING ITSELF BUT NOT UNTIL
THE SUPREME COURT DECIDED AND SETTLED
THE LEGAL ASPECT OF THE LAW ON THIS
ISSUE VIA A JUDICIAL EXPANSION OF
PAROCHIAL SCHOOL PROPERTY TO INCLUDE
ALL AREAS OF CHURCH PROPERTY ON WHICH
A SCHOOL IS SITUATED.
(B) – THE COURTS ERRED IN THAT THE LAW AS
CURRENTLY DEFINED BY THE SUPREME
COURT SHOULD NOT HAVE BEEN APPLIED
RETROACTIVELY TO ME BECAUSE MY CASE IS
A CASE OF FIRST IMPRESSION AND BECAUSE
OF THE UNEXPECTED AND UNFORESEEABLE
JUDICIAL EXPANSION OF THE 1,000 FOOT
SCHOOL ZONE WHICH NOW INCLUDES ALL
AREAS OF CHURCH PROPERTY VIOLATES THE
DUE PROCESS CLAUSE UNDER THE "VOID FOR
VAGUENESS STANDARD" BECAUSE IT
OPERATES PRECISELY LIKE AN []"EX-POST
FACTO" LAW AND BECAUSE THE SUPREME
COURT'S MAJORITY AND MINORITY BOTH
CONCURRED THAT THE STATUTE [2C:12-
1(c)(3)(A)] AS IT WAS WRITTEN IN 2007 WAS
SUBJECT TO MORE THAN ONE PLAUSIBLE
INTERPRETATION.
POINT II (A) – I WAS PREJUDICED AND
SUBSTANTIALLY DEPRIVED OF MY STATE
([N.J. CONST. ART. I, ¶ 10]) AND FEDERAL
CONSTITUTIONAL RIGHTS MEMORIALIZED IN
THE 5TH, 6TH AND 14TH AMENDMENTS TO THE
EFFECTIVE ASSISTANCE OF BOTH COURT
APPOINTED TRIAL AND 1ST-TIER PCR
COUNSELS AND THE DUE PROCESS OF LAW IN
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THAT BOTH COUNSELS FAILED TO
INVESTIGATE MY WITNESSES AND OBTAIN
AFFIDAVITS FROM THE PRIEST OF OUR LADY
STAR OF THE SEA SCHOOL AND THE SISTER IN
CHARGE OF THE SCHOOL AFTER BEING
INSTRUCTED BY ME TO CONTACT THE PRIEST
FOR THAT INFORMATION AS PRIOR PRIVATE
AND APPELLATE COUNSELS EXECUTED SO
THAT I COULD PROVE THAT THE RECTORY
WAS NOT USED FOR SCHOOL PURPOSES WHICH
WAS EVIDENCE THAT 1ST PCR JUDGE ASKED
FOR IN ORDER TO BE PERSUADED TO GRANT
RELIEF.
(B) 1ST TIER PCR COUNSEL WAS INEFFECTIVE
WHEN HE FAILED TO PER THE SUPREME
COURT'S SPECIFIC PCR INSTRUCTIONS:
INVESTIGATE AND ARGUE ON THE RECORD AT
PCR ORAL ARGUMENT THE NEED FOR AN
EVIDENTIARY HEARING IN ORDER TO
ASCERTAIN BOTH TRIAL COUNSELS' TRIAL
STRATEGY AND SPECIFIC REASONS FOR THE
ABSENCE OF AND FAILURE TO OBTAIN AND
REVIEW THE 1,000 FOOT SCHOOL ZONE MAP
PRE-TRIAL, PRE-PLEA AND WHY THEY FAILED
TO PRODUCE THE STATE'S MAP AT THE PLEA
HEARING AND FAILED TO VERIFY THE 1,000
FOOT DISTANCE BEFORE THE ENTRY OF A
GUILTY PLEA THAT CAUSED THE ENTRANCE
OF A GUILTY PLEA WITHOUT INVESTIGATING
MY SPECIFIC REASONS FOR PLEADING GUILTY
BEFORE THE TRIAL COURT THAT I NEVER
WOULD HAVE ENTERED WITH THE STATE'S
MAP IN HAND PRE-PLEA AND NOT THE
DEFENSE COUNSEL SURVEY.
POINT III – THE STATE'S WHOLE ARGUMENT IS
VOID BECAUSE THE STATE NEVER MEASURED
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THE SCHOOL ZONE TO PROVE THAT ELEMENT
OF THE CHARGE AND THEREFORE DEFENDANT
WAS THEREBY PREJUDICED.
POINT IV – DEFENDANT IS ENTITLED TO POST-
CONVICTION RELIEF BECAUSE WITHOUT
COUNSEL'S INEFFECTIVE ASSISTANCE AND
THE [WITHHOLDING] OF THE STATE'S MAP IN
MY POSSESSION PRE-PLEA THE OUTCOME OF
THE PLEA PROCESS WOULD HAVE BEEN
DIFFERENT.
Defendant's second PCR petition is not timely and it lacks merit. A second
or subsequent PCR petition must be dismissed if it is not timely and it does not
allege certain narrow grounds for such a petition. R. 3:22-4(b). In that regard,
the petition must allege on its face one of three bases for relief:
(A) that the petition relies on a new rule of
constitutional law, made retroactive to defendant's
petition . . . that was unavailable during the pendency
of any prior proceedings; or
(B) that the factual predicate for the relief sought
could not have been discovered earlier through the
exercise of reasonable diligence and the facts
underlying the grounds for relief, if proven and viewed
in light of the evidence as a whole, would raise a
reasonable probability that the relief sought would be
granted; or
(C) that the petition alleges a prima facie case of
ineffective assistance of counsel that represented
defendant on the first . . . application for [PCR].
[R. 3:22-4(b)(2).]
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Here, defendant's second PCR petition was not filed within the one-year
limit required in Rule 3:22-12(a)(2). His first petition was denied in 2013, and
his second petition was filed in 2016. The appeal of the first petition did not toll
the one-year time limitation. See State v. Dillard, 208 N.J. Super. 722, 727
(App. Div. 1986).
Defendant's argument that the holding in his own case, McDonald, 211
N.J. at 4, was retroactively applied to the facts of his case is wholly without
merit and warrants no discussion in a written opinion. See R. 2:11-3(e)(2).
Moreover, defendant's second PCR petition does not assert or rely on either a
new constitutional right or facts that could not have been discovered earlier.
Instead, defendant reiterates the same arguments that he made both on direct
appeal and in his first PCR petition. Those contentions do not establish a prima
facie showing of ineffective assistance of counsel. See Strickland v.
Washington, 466 U.S. 668 (1984). Consequently, the contentions raised by
defendant in his second PCR petition do not satisfy any of the three requisites
in Rule 3:22-4(b)(2).
Affirmed.
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