STATE OF NEW JERSEY v. NADIR BAPTISTE

 

(NOTE: The status of this decision is Published.)

                        NOT FOR PUBLICATION WITHOUT THE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-0147-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

NADIR BAPTISTE, a/k/a ALIR
JOHNSON, and PATRICK JEAN,

        Defendant-Appellant.

              Submitted May 15, 2018 – Decided June 19, 2018

              Before Judges Carroll and DeAlmeida.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment Nos.
              98-09-1232, 99-12-1672, 00-07-0498, 00-07-
              0746, 01-04-0433 and 01-10-1188.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (David A. Snyder, Designated
              Counsel, on the brief).

              Michael A. Monahan, Acting Union County
              Prosecutor, attorney for respondent (Paul J.
              Wiegartner,    Special     Deputy    Attorney
              General/Acting   Assistant   Prosecutor,   of
              counsel and on the brief).

PER CURIAM
     Defendant Nadir Baptiste appeals from an order entered by the

Law Division denying his petition for post-conviction relief (PCR)

without an evidentiary hearing.       We affirm.

                                  I.

     Defendant's PCR petition concerned six unrelated indictments

dating from 1998 through 2003, which are addressed in turn below.
1 Indictment No. 98-09-1232.

     On September 3, 1998, a Union County grand jury returned

Indictment No. 98-09-1232, charging defendant with third-degree

possession of a controlled dangerous substance (CDS), 
N.J.S.A.

2C:35-10(a)(1); third-degree possession of CDS with intent to

distribute, 
N.J.S.A. 2C:35-5(a)(1) and 
N.J.S.A. 2C:35-5(b)(3);

possession of CDS with intent to distribute within 1000 feet of a

school property, 
N.J.S.A. 2C:35-7; and fourth-degree resisting

arrest, 
N.J.S.A. 2C:29-2(a).   On December 10, 1998, defendant pled

guilty to possession of CDS with intent to distribute within 1000

feet of a school property, 
N.J.S.A. 2C:35-7.

     On June 14, 1999, the trial court sentenced defendant to 428

days of imprisonment, and three years of probation.   The sentence

was to be served concurrent with the same sentence on one count

of Indictment No. 98-07-0928, which is not before the court.


1
     Defendant's petition initially concerned seven indictments.
He withdrew his challenge regarding Indictment No. 98-07-0928.

                                  2                         A-0147-16T
3 Indictment No. 99-12-1672.

       On December 23, 1999, a Union County grand jury returned

Indictment No. 99-12-1672, charging defendant with third-degree

possession of CDS, 
N.J.S.A. 2C:35-10(a)(1).               Defendant's arrest

on this charge resulted in a charge of violation of probation

arising from Indictment No. 98-09-1232.

       On February 5, 2002, a jury found defendant guilty on the

single count in Indictment No. 99-12-1672.

       On May 31, 2002, the trial court sentenced defendant for the

conviction on Indictment No. 99-12-1672, and for his violation of

probation on Indictment No. 98-09-1232, of which the court found

defendant guilty based on the jury verdict.           The court imposed a

four-year prison term on Indictment No. 98-09-1232, and a five-

year    prison   term   with   an    eighteen-month       period   of    parole

ineligibility     on    Indictment    No.     99-12-1672     to    be    served

consecutively to the four-year term on Indictment No. 98-09-1232.2

This court affirmed defendant's conviction on Indictment No. 99-

12-1672, but remanded for reconsideration of his sentence.                State

v. Baptiste, No. A-1060-04 (App. Div. May 23, 2006).




2
     The court also discharged              defendant's     probation     under
Indictment No. 98-07-0928.

                                      3                                 A-0147-16T
3 Indictment No. 00-07-0746.

       On   July    19,     2000,   a   Union    County   grand     jury   returned

Indictment No. 00-07-0746, charging defendant with third-degree

possession of a weapon for an unlawful purpose, 
N.J.S.A. 2C:39-

4(d); third-degree aggravated assault, 
N.J.S.A. 2C:12-1(b)(2); and

second-degree aggravated assault, 
N.J.S.A. 2C:12-1(b)(1).

       On July 8, 2003, the trial court granted defendant's motion

to represent himself at trial on these counts, and appointed

standby counsel to advise defendant on legal issues.                  A jury found

defendant guilty of all charges.

       On October 3, 2003, the trial court sentenced defendant on

these convictions to a ten-year term of imprisonment, subject to

the No Early Release Act, 
N.J.S.A. 2C:43-7.2.                  The sentence was

to be served consecutive to the sentences defendant was then

serving     on   the    earlier     convictions.      Defendant      appealed    his

convictions and sentence arising from Indictment No. 00-07-0746.

This   court     affirmed     defendant's       convictions   but    remanded    for

reconsideration of his sentence.                State v. Baptiste, No. A-2483-

03 (App. Div. Mar. 9, 2006).

Indictment No. 01-04-0433.

       On   April      5,   2001,   a   Union    County   grand     jury   returned

Indictment No. 01-04-0433, charging defendant with third-degree

distribution of CDS, 
N.J.S.A. 2C:35-5(a)(1) and 
N.J.S.A. 2C:35-

                                          4                                 A-0147-16T3
5(b)(3); second-degree distribution of CDS within 500 feet of a

public park, 
N.J.S.A. 2C:35-7.1; third-degree possession of CDS,


N.J.S.A.    2C:35-10(a)(1);     third-degree   possession     of   CDS    with

intent to distribute, 
N.J.S.A. 2C:35-5(a)(1) and 
N.J.S.A. 2C:35-

5(b)(3);    and   second-degree   possession    of    CDS   with   intent    to

distribute within 500 feet of a public park, 
N.J.S.A. 2C:35-7.1.

       On February 27, 2002, defendant appeared for trial on these

charges.    Before the jury was sworn, however, defendant stated

that   he   did   not   want   designated   counsel    to   represent     him.

Defendant stated that he would "rather plead guilty on my own than

to have this man represent me" and asked for an adjournment to

hire an attorney.       Noting that defendant previously turned down a

plea offer, signed a form acknowledging the trial date, and had

six months to find counsel, the trial court denied the adjournment

request.    Defendant thereafter entered a guilty plea to all counts

of Indictment No. 01-04-0433 without a sentencing recommendation

from the State.         Although defendant, through counsel, filed a

motion to withdraw his plea, the motion was later withdrawn.

       On February 21, 2003, the trial court sentenced defendant to

an aggregate term of sixteen years of imprisonment with an eight-

year period of parole ineligibility to be served consecutive to

defendant's existing sentences.          This court affirmed defendant's



                                     5                                A-0147-16T3
convictions, and remanded for reconsideration of his sentence.

State v. Baptiste, No. A-1661-03 (App. Div. Mar. 14, 2005).

Indictment No. 01-04-0498.

     On   April     19,   2001,   a   Union    County    grand   jury   returned

Indictment No. 01-04-0498, charging defendant with third-degree

possession     of     CDS,    N.J.S.A.        2C:35-10(a)(1);     third-degree

possession of CDS with intent to distribute, 
N.J.S.A. 2C:35-

5(a)(1) and 
N.J.S.A. 2C:35-5(b)(3); and second-degree possession

of CDS with intent to distribute within 500 feet of a public park,


N.J.S.A. 2C:35-7.1.

     Trial commenced on February 10, 2003.              Before jury selection,

defendant stated that he did not want to go to trial, that his

lawyer had not investigated the case, and that he did not want to

be in court.   After being informed by the court that the trial was

going to proceed and that he could either stay and participate,

or go to a nearby room and watch the trial on a video monitor,

defendant insisted on being returned to jail.              The trial commenced

in defendant's absence.           On February 11, 2003, a jury found

defendant guilty on all counts of Indictment No. 01-04-0498.

     On February 13, 2003, the trial court sentenced defendant to

a term of eight years of imprisonment with a four-year period of

parole ineligibility.        The sentence was to run consecutive to the

sentences defendant was serving.            This court affirmed defendant's

                                        6                                A-0147-16T3
convictions and remanded for reconsideration of his sentence.

Ibid.

Indictment No. 01-10-1188.

     On October 4, 2001, a Union County grand jury returned

Indictment No. 01-10-1188, charging defendant with third-degree

possession     of     CDS,     N.J.S.A.       2C:35-10(a)(1);     second-degree

possession of CDS with intent to distribute, 
N.J.S.A. 2C:35-

5(a)(1) and 
N.J.S.A. 2C:35-5(b)(2); and second-degree possession

of CDS with intent to distribute within 500 feet of a public park,


N.J.S.A. 2C:35-7.1.

     On April 30, 2003, a jury found defendant guilty on all counts

of Indictment No. 01-10-1188.

     On May 8, 2003, the trial court sentenced defendant to an

aggregate term of eighteen years of imprisonment with an eight-

year period of parole ineligibility on Indictment No. 01-10-1188.

The court ordered this sentence to run consecutive to defendant's

sentences    on     Indictment    Nos.    99-12-1672    and    98-09-1232,     and

concurrent to his sentences on Indictment Nos. 01-04-0433 and 01-

04-0498.      This     court     affirmed      defendant's     convictions     and

sentence.     State v. Baptiste, No. A-0069-03 (App. Div. July 08,

2004).

     On October 10, 2013, defendant filed a pro se PCR petition

challenging    the    convictions    and      guilty   pleas   detailed    above.

                                          7                               A-0147-16T3
Designated counsel thereafter submitted a legal brief in support

of the petition.     Defendant raised six points: (1) that he was

denied effective assistance of trial counsel in each of his four

trials; (2) that he is entitled to withdraw his guilty plea with

respect to Indictment No. 01-04-0433; (3) that trial errors made

each of his trials unfair; (4) that he was denied effective

assistance of appellate counsel on the direct appeals of his

convictions; (5) that he is entitled to an evidentiary hearing on

his PCR petition; and (6) that his petition is not time-barred.

     On April 25, 2016, after hearing oral argument, Judge Stuart

L. Peim issued a comprehensive written opinion and order denying

defendant's petition.    Judge Peim found defendant's PCR petition

to be time-barred.    The court noted that the petition was filed

more than seventeen years after entry of judgment on the earliest

conviction challenged, and almost ten years after entry of judgment

on the latest conviction challenged. These periods are well beyond

the five-year limit for filing a PCR petition established in Rule

3:22-12(a)(1).     The court found defendant's claimed excusable

neglect in filing a timely PCR petition to be unfounded.           In

addition, the court found that relaxation of the time limit in

Rule 3:22-12(a)(1) would prejudice the State, given the length of

time that had passed since the convictions at issue.



                                 8                          A-0147-16T3
      Judge Peim also carefully reviewed the substantive claims

raised   by    defendant    as   to   each    conviction       to   determine      if

relaxation of the time bar was necessary to avoid a fundamental

injustice.     The court concluded that defendant had not been denied

effective assistance of counsel with respect to the counts on

which he went to trial, or on the counts on which he knowingly and

voluntarily entered guilty pleas.3             In addition, the court held

that it was not error to try defendant on Indictment No. 01-04-

0498 in his absence, given his knowing and voluntary decision to

be   removed   from   the   courtroom       prior   to   the   start   of    trial.

Finally, Judge Peim held that defendant was not denied effective

assistance of appellate counsel on the direct appeals of his

convictions.     The court found that defendant had not established

that appellate counsel failed to raise issues that, had they been

raised, were reasonably likely to have been successful.                 In light

of the lack of merit in defendant's claims, the court concluded

that he had not established a prima facie case requiring an

evidentiary hearing on his PCR petition.

      This appeal followed.



3
     The trial court agreed with defendant's argument that the
judgment of conviction on Indictment No. 99-12-1672 incorrectly
stated that defendant entered a guilty plea when he was convicted
by a jury. The trial court ordered that the judgment of conviction
be amended to correct this error.

                                        9                                   A-0147-16T3
                              II.

    On appeal, defendant raises the following arguments for our

consideration:

                           POINT ONE

         THE DEFENDANT'S PCR PETITION SHOULD NOT HAVE
         BEEN TIME BARRED.

                           POINT TWO

         THE PCR COURT COMMITTED ERROR DENYING THE
         DEFENDANT AN EVIDENTIARY HEARING BECAUSE HE
         ESTALBISHED A PRIMA FACIA [SIC] CASE OF
         INEFFECTIVE ASSISTANCE OF COUNSEL ON HIS
         VARIOUS MATTERS.

         a.   The PCR [c]ourt committed error by
         denying the Defendant his right to an
         evidentiary hearing regarding his plea in I-
         01-04-433.

         b.   The PCR court committed error by denying
         the Defendant an evidentiary hearing on his
         claim trial counsel was ineffective for
         withdrawing the Defendant's motion to withdraw
         his plea in I-01-04-0433.

         c.   The PCR court committed error by denying
         the Defendant his right to an evidentiary
         hearing on the issue about his trial counsels
         being ineffective during their representation
         of him at trial because he established a prima
         facia [sic] case of ineffective assistance of
         trial counsel in each separate case.

                          POINT THREE

         THE PCR COURT COMMITTED ERROR BY DENYING THE
         DEFENDANT'S MOTION TO WITHDRAW HIS PLEA IN I-
         01-04-0433.



                              10                          A-0147-16T3
                             POINT FOUR

          APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING
          TO RAISE ON APPEAL THE TRIAL COURT COMMITTED
          ERROR IN GRANTING THE DEFENDANT'S APPLICATION
          TO REPRESENT HIMSELF IN I-00-07-746.     (NOT
          RAISED BELOW).

     Having reviewed the record in light of defendant's arguments

and the law, we conclude that defendant's arguments are without

sufficient merit to warrant discussion in a written opinion.       R.

2:11-3(e)(2).    We affirm substantially for the reasons explained

by Judge Peim in his comprehensive and well-reasoned opinion.4

     Affirmed.




4
     We decline to address defendant's claim of ineffective
assistance of appellate counsel with respect to Indictment No. 00-
07-0746. Defendant's argument that appellate counsel should have
challenged the trial court decision to allow defendant to represent
himself at trial was not raised before the trial court and does
not "go to the jurisdiction of the trial court or concern matters
of great public interest." Nieder v. Royal Indem. Ins. Co., 
62 N.J. 229, 234 (1973) (internal quotations omitted).

                                11                          A-0147-16T3