Opinion
DOCKET NO. A-0597-10T4
03-13-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GREGORY BYRD, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief). Theodore F.L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Skillman.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 87-10-2132.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief).
Theodore F.L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Gregory Byrd appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Tried by a jury, defendant was convicted on October 21, 1988 of murder (N.J.S.A. 2C:11-3a(2)); attempted murder (N.J.S.A. 2C:5-1); felony murder (N.J.S.A. 2C:11-3a(3)); first-degree robbery by inflicting serious bodily injury upon another (N.J.S.A. 2C:15-1); several counts of first-degree armed robbery (N.J.S.A. 2C:15-1), and conspiracy to commit that offense (N.J.S.A. 2C:5-2); possession of a firearm for an unlawful purpose (N.J.S.A. 2C:39-4); and possession of a handgun without a permit (N.J.S.A. 2C:39-5b).
The evidence at trial indicated that defendant shot two individuals in the back of the head, "execution style," in the course of a robbery. One of the victims survived. He identified defendant from a photographic array, as did another witness.
The trial court imposed a sentence of life imprisonment with a 30-year parole disqualifier on the conviction for first-degree murder. On the attempted murder count, defendant was sentenced, as a persistent offender, to a consecutive term of life imprisonment with a 25-year parole disqualifier. Concurrent sentences were imposed on the convictions for first-degree robbery, possession of a firearm for an unlawful purpose and possession of a handgun without a permit. The remaining counts were merged.
We affirmed the conviction, State v. Byrd, No. A-2982-88 (App. Div. July 9, 1990), and the Supreme Court denied certification, State v. Byrd, 122 N.J. 363 (1990).
On April 8, 1992, defendant filed a PCR petition, contending, among other things, that he was denied the effective assistance of counsel both at trial and on appeal. The Law Division denied the petition, concluding that defendant's trial and appellate lawyers were not ineffective. We affirmed, finding no basis to defendant's claim that he was denied the effective assistance of counsel, State v. Byrd, No. A-6002-91 (App. Div. February 25, 1994) (slip op. at 4), and the Supreme Court denied certification, State v. Byrd, 137 N.J. 164 (1994).
Fourteen years later, and almost twenty years after entry of his judgment of conviction, defendant filed his second PCR petition on June 17, 2008, claiming that his trial counsel did not advise him that the State offered a plea deal and his appellate counsel did not raise this issue on appeal. As for the twenty-year delay, defendant claimed "excusable neglect" because previous counsel did not raise the issue and because he is a "lay person." The Law Division judge denied relief, finding the PCR petition time-barred under Rule 3:22-12 and that neither "exceptional circumstances" nor sufficient justification had been demonstrated. As to the substantive merits, the PCR judge simply noted:
In response, the State submitted a certification from the trial attorney refuting defendant's belated contention that counsel did not communicate the plea offer to defendant.
[T]he reference to the plea agreement Defendant says he was unaware of was stated in open court during a recess of his trial outside of the presence of [the] jury but presumably in the presence of the Defendant. Moreover, the statement made by defense counsel concerning the proffered plea agreement is cast in what was commonly criminal practice at the time, for defense counsel to protect themselves from later claims such as the one presently made. It is highly unlikely that defense counsel would make the effort to place the fact of a proffered offer on the record if the Defendant had not previously been made aware of it.
On appeal, defendant raises the following issues:
I. THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Accordingly, we affirm substantially for the reasons stated by Judge Garofolo in his written decision of February 25, 2010.
II. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL. III. THE LOWER COURT ORDER MUST BE REVERSED SINCE THE FIVE-YEAR TIME BAR OF Rule 3:22-12 SHOULD NOT BE APPLIED TO BAR DEFENDANT'S CLAIMS.
A. THE TIME BAR SHOULD BE RELAXED ON THE GROUNDS OF EXCUSABLE NEGLECT.
B. THE TIME BAR SHOULD BE
RELAXED IN THE INTEREST OF JUSTICE.IV. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER Rule 3:22-4.
V. THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
Affirmed.
I hereby certify that the foregoing
is a true copy of the original on
file in my office
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CLERK OF THE APPELLATE DIVISION