STATE OF NEW JERSEY VS. STANLEY RAY (99-04-0384, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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-2234-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
STANLEY RAY,
Defendant-Appellant.
____________________________
Submitted November 27, 2018 – Decided January 29, 2019
Before Judges Fisher and Hoffman.
On appeal from Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 99-04-0384.
Joseph E. Krakora, Public Defender, attorney for
appellant (Richard Sparaco, Designated Counsel;
William P. Welaj, on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Christopher W. Hsieh, Chief
Assistant Prosecutor, of counsel and on the briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant appeals from the Law Division 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.
We summarize the relevant facts elicited at defendant's trial, which we set
forth at length in our opinion on direct appeal. State v. Ray, Docket No. A-
1011-02 (App. Div. Nov. 8, 2004). On January 1, 1999, a fight occurred
between Mark Chandler and Ronald Green, Frederic Pate, and Melvin Simmons.
In the fight, Chandler sustained a broken arm, jaw, and rib.
Jammal Manning did not witness the fight, but drove defendant home. A
few days later, Chandler's sister, Keisha, and their aunt Camilia Jones, went to
locate the man who injured her brother. Keisha and Jones saw defendant at a
payphone, and defendant asked about Chandler and the men who beat him.
Keisha described defendant as a "good friend of her brother's."
Defendant got into the backseat of Keisha's car and stated he wanted to
get dropped off at Broadway. As they drove, Keisha spotted Manning and
stopped to talk to him. As they spoke, Keisha saw Green walking down the
street. They began to argue, and defendant exited the vehicle. Keisha urged
A-2234-17T4
2
defendant to fight Green. Rather than fight Green, defendant took out a gun and
shot and killed Green.
Police arrested defendant in North Carolina a few days later. A grand jury
indictment charged defendant with murder, possession of a weapon for an
unlawful purpose, and unlawful possession of a weapon. At defendant's trial in
2001, Keisha, Jones, and Manning identified defendant as the shooter.
Defendant did not testify. After the jury found defendant guilty of all charges,
the trial court sentenced defendant to an aggregate prison term of seventy years,
with thirty years of parole ineligibility. We affirmed defendant's conviction and
sentence on direct appeal in November 2004.
In February 2017, more than fifteen years after his sentencing, defendant
filed the petition under review. On November 9, 2017, Judge Sohail Mohammed
denied the petition and issued a written decision finding that defendant's petition
was both untimely and substantively without merit. The judge determined that
defendant's PCR petition was procedurally deficient because he filed it well
beyond the five-year time limit and that he failed to assert facts indicating the
delay was due to excusable neglect in order to relax the time bar prescribed by
Rule 3:22-12(a)(1)(A). Notwithstanding the time bar, the judge then addressed
A-2234-17T4
3
the merits of defendant's petition and found that he failed to demonstrate he
received ineffective assistance of counsel.
This appeal followed, with defendant raising the following arguments:
POINT I:
THE POST-CONVICTION RELIEF COURT ERRED IN
DENYING THE DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF, IN PART, ON PROCEDURAL
GROUNDS PURSUANT TO RULE 3: 22-12 (a) (1).
POINT II:
THE POST-CONVICTION RELIEF COURT ERRED IN
DENYING THE DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF WITHOUT AFFORDING HIM AN
EVIDENTIARY HEARING TO FULLY ADDRESS HIS
CONTENTION THAT HE FAILED TO RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM TRIAL
COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO
PURSUE AN ALIBI DEFENSE ON HIS BEHALF.
A. FACTUAL BACKGROUND
B. THE POST-CONVICTION RELIEF COURT
ERRED BY FAILING TO CONDUCT AN
EVIDENTIARY HEARING TO ADDRESS THE
DEFENDANT'S CONTENTION THAT HE DID
NOT RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM TRIAL COUNSEL
AS A RESULT OF COUNSEL'S FAILURE TO
THOROUGHLY INVESTIGATE HIS
POTENTIAL ALIBI DEFENSE AND UTILIZE
HIS SISTER AS AN ALIBI WITNESS TO
ESTABLISH REASONABLE DOUBT IN THE
STATE'S CASE.
A-2234-17T4
4
In addition, defendant submitted a pro se brief raising the following additional
arguments:
POINT I
THE PCR COURT ERRED IN NOT FINDING THAT THE
STATE VIOLATED BRADY V. MARYLAND, 373 U.S. 83(1963), AND THE DISCOVERY RULE BY SUPPRESSING
EVIDENCE FAVORABLE TO THE DEFENDANT, I.E.,
THE WITNESSES['] CRIMINAL HISTORIES/RAP
SHEETS, THUS VIOLATING DEFENDANT'S RIGHT TO
DUE PROCESS OF LAW.
POINT II
THE PCR COURT ERRED IN DENYING PETITIONER AN
EVIDENTIARY HEARING TO DETERMINE THE
MERITS OF HIS CLAIM THAT TRIAL COUNSEL WAS
INEFFECTIVE IN FAILING TO ADVISE HIM OF HIS
CONSTITUTIONAL RIGHT TO TESTIFY IN HIS OWN
DEFENSE.
POINT III
THIS MATTER MUST BE REMANDED FOR A PLENARY
HEARING BECAUSE DEFENDANT ESTABLISHED A
PRIMA FACIE CASE THAT TRIAL COUNSEL'S
FAILURE TO IMPEACH THE CREDIBILITY OF THE
STATE'S WITNESSES KEISHA CHANDLER, CAMILIA
JONES AND JAMMAL MANNING ON THE GROUND
THAT ALL THREE WITNESSES HAD PRIOR CRIMINAL
RECORDS AT THE TIME THEY MADE THEIR
ORIGINAL STATEMENTS TO THE POLICE AND AT
THETIME THEY TESTIFIED AT TRIAL CONSTITUTED
INEFFECTIVE ASSISTANCE OF COUNSEL.
A-2234-17T4
5
POINT IV
THE LOWER COURT ERRED IN DENYING
DEFENDANT'S PETITION WITHOUT ORAL
AR[G]UMENT. THUS, THE LOWER COURT MUST BE
REVERSED.
POINT V
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED
IN POST[-]CONVICTION RELIEF.
1. The State's failure to turn over Jammal Manning's
second statement in which he identified defendant as
the shooter, violated defendant's right to due process
of law.
2. Defense counsel's failure to impeach the credibility
of the State's principal witnesses against
defendant,[namely] Keisha Chandler, Camilia
Jones, and Jammal Manning, on the ground that all
three witnesses had prior criminal records at the time
they made their original statements to the police and
at the time they testified at trial, constituted
ineffective assistance of counsel, although omission
is also attributable to the failure of the prosecution
to afford defense with a list of the records of
criminal convictions of the witnesses it called to
testify against defendant. Whether, however, the
omission is ascribable primarily to defense counsel's
incompetence or the State's failure to provide the
discovery material required of it by Rule, its effect
in either event was to deprive defendant of his
constitutional right to adequate representation of
counsel, of his right to meaningfully confront the
witnesses against him, and of his right to due process
of law.
A-2234-17T4
6
3. The cumulative impact of exculpatory evidence
suppressed by the State was material, in violation of
defendant's right, and requires reversal of his murder
conviction.
4. The failure of the trial court to merge the [u]nlawful
possession of a weapon with the murder count
constitutes an illegal sentence-requiring merger.
After carefully considering the record and the briefs, we conclude
defendant's arguments lack sufficient merit to warrant extended discussion in a
written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated
by Judge Mohammed in his cogent written opinion. We add the following
comments.
Our court rules preclude PCR petitions filed more than five years after
entry of a judgment of conviction unless the delay was "due to defendant's
excusable neglect and . . . 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 demonstrate "more than simply . . . a plausible
explanation for a failure to file a timely PCR petition." State v. Norman, 405
N.J. Super. 149, 159 (App. Div. 2009).
Under Rule 1:1-2(a), a court may disregard the time bar when the
defendant demonstrates an injustice by a preponderance of the credible
A-2234-17T4
7
evidence. State v. Mitchell, 126 N.J. 565, 579 (1992). However, courts only
relax the time bar in extraordinary or exceptional circumstances, considering
"the extent and cause of the delay, the prejudice to the State, and the importance
of the [defendant’s] claim in determining whether there has been an ‘injustice’
sufficient to relax the time limits." Id. at 580. "Absent compelling, extenuating
circumstances, the burden of justifying a petition filed after the five-year period
will increase with the extent of the delay." Ibid.Defendant contends he demonstrated excusable neglect, and rigid
enforcement of the time bar will result in a fundamental injustice. Specifically,
he claims the trial court and counsel failed to advise him he could file a PCR
petition within five years of his conviction.
Defendant’s sentencing occurred in November 2001. He did not file his
PCR petition until February 2017, more than fifteen years later, and well beyond
the time bar. Moreover, the court and trial counsel had no obligation to advise
defendant of the PCR time limitations or the ability to file a PCR petition in
2001. Defendant’s ignorance of the law does not constitute excusable neglect.
State v. Murray, 162 N.J. 240, 246 (2000). Therefore, defendant failed to show
his delay was due to excusable neglect.
A-2234-17T4
8
We also agree with Judge Mohammed that, regardless of the time bar,
defendant failed to satisfy his burden to show he received ineffective assistance
of counsel. In order to establish a prima facie case of ineffective assistance of
counsel, a defendant must satisfy the two-prong test articulated in Strickland v.
Washington, 466 U.S. 668, 687 (1984), and adopted by our Supreme Court in
State v. Fritz, 105 N.J. 42, 58 (1987). "First, the defendant must show . . . that
counsel made errors so serious that counsel was not functioning as the 'counsel'
guaranteed . . . by the Sixth Amendment." Fritz, 105 N.J. at 52 (quoting
Strickland, 466 U.S. at 687). The defendant must then show that counsel's
deficient performance prejudiced the defense. Ibid. To show prejudice, the
defendant must establish by "a reasonable probability" that the deficient
performance "materially contributed to defendant's conviction . . . ." Id. at 58.
"A defendant shall be entitled to an evidentiary hearing only upon the
establishment of a prima facie case in support of post-conviction relief." R.
3:22-10(b). "To establish such a prima facie case, the defendant must
demonstrate a reasonable likelihood that his or her claim will ultimately succeed
on the merits." State v. Marshall, 148 N.J. 89, 158 (1997). The court must view
the facts "in the light most favorable to defendant." Ibid.A-2234-17T4
9
Here, defendant argues that trial counsel was ineffective for failing to
investigate and present an alleged alibi witness. "Failure to investigate an alibi
defense is a serious deficiency that can result in the reversal of a conviction.
Indeed, 'few defenses have greater potential for creating reasonable doubt as to
a defendant's guilt in the minds of the jury.'" State v. Porter, 216 N.J. 343, 353
(2013) (citing Mitchell, 149 N.J. Super. at 262). However, "'[w]hen a petitioner
claims his trial attorney inadequately investigated his case, he must assert the
facts that an investigation would have revealed, supported by affidavits or
certifications based upon the personal knowledge of the affiant or the person
making the certification.'" Ibid. (quoting State v. Cummings, 321 N.J. Super.
154, 170 (App. Div. 1999)); see R. 3:22-10(c).
Defendant claims his attorney failed to speak with his sister about an alibi;
however, defendant did not submit a certification or affidavit from his sister nor
did he set forth her anticipated testimony. Thus, defendant failed to "assert the
facts that an investigation would have revealed, supported by affidavits or
certifications based upon the personal knowledge of the affiant or the person
making the certification." Cummings, 321 N.J. Super. at 170-71 (rejecting a
petitioner's "bare assertion of an alibi" where he "has not supplied an affidavit
or certification of [the witness] that would support petitioner's alibi"); cf. Porter,
A-2234-17T4
10
216 N.J. at 350 (defendant supported alibi argument with affidavits from himself
and the alibi witness).
We further agree with Judge Mohammed's rejection of defendant's
remaining contentions without an evidentiary hearing. "[I]n order to establish a
prima facie claim, a petitioner must do more than make bald assertions." Id. at
355 (quoting Cummings, 321 N.J. Super. at 170). Because defendant failed to
"allege specific facts and evidence supporting his allegations," they "'are too
vague, conclusory, or speculative to warrant an evidentiary hearing.'" Ibid.(quoting Marshall, 148 N.J. at 158).
Affirmed.
A-2234-17T4
11