Opinion
DOCKET NO. A-0808-12T1
07-28-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. STACEY FROLAND-KINDT, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Jane C. Schuster, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi and Leone. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-08-1617. Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Jane C. Schuster, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Stacey Froland-Kindt (Froland) appeals from the denial without a hearing of her petition for post-conviction relief (PCR). Because the PCR court properly found her petition to be untimely and because her claims lack merit, we affirm.
I.
The facts of this case have been described in detail in the prior opinions of the Supreme Court, this court, and the PCR court. See, e.g., State v. Froland, 378 N.J. Super. 20, 25-29 (App. Div. 2005) (Froland I), rev'd in part, 193 N.J. 186, 188-91 (2007) (Froland II), modified, 195 N.J. 413 (2008). We need only summarize them here.
Froland and her husband John Kindt absconded with the children from Kindt's previous marriage to Anne O'Connor, who was the children's parent of primary residence. O'Connor had obtained a court order prohibiting Kindt from interfering with the custody of the children, and requiring him to pay $100,000 in equitable distribution by December 31, 2000.
As Froland wrote, she and Kindt believed O'Connor's father, a former county counsel of Monmouth County, "runs Monmouth County." They devised an elaborate plan to remove the children from New Jersey without O'Connor's consent "to somewhere far enough away" that the influence of O'Connor's father would not "taint the judicial process."
When the children came for visitation on December 27, 2000, Froland, Kindt, and Kindt's adult nephew Matthew Aronson decamped with the children. They abandoned the family minivan at Newark Airport, and surreptitiously took the children by train to North Carolina, where Kindt obtained a boat. On January 22, 2001, the Coast Guard found the disabled boat off the North Carolina coast. On board were the three adults, the children, passports, nautical charts from North Carolina to the Bahamas, and books entitled "Passages South," "Cruising with Children," "Hide Your Assets and Disappear," and "How to be Invisible."
In 2002, a Monmouth County grand jury indicted Kindt, Froland, and Aronson on two counts of first-degree kidnapping, N.J.S.A. 2C:13-1(b) (counts one and two); two counts of second-degree interference with custody, N.J.S.A. 2C:13-4(a)(1) (counts three and four); fourth-degree contempt of court, N.J.S.A. 2C:29-9 (count five); two counts of third-degree attempted interference with custody, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:13-4(a)(1) (counts six and seven); and second-degree conspiracy to kidnap and interfere with custody, N.J.S.A. 2C:5-2, N.J.S.A. 2C:13-1(b) and N.J.S.A. 2C:13-4(a)(1) (count eight).
The trial court severed Froland's case for trial. Before trial commenced, Froland's trial counsel orally and by letter asked for recusal of the judge, a change of venue, and disqualification of the Monmouth County Prosecutor's Office based on alleged connections of the O'Connor family to the judge and to the County Prosecutor. The court rejected the request, finding recusal was unwarranted. The trial prosecutor similarly saw no reason for disqualification of the Prosecutor's Office. The court ultimately treated Froland's request as a motion to dismiss the indictment, and denied it.
Following a seven-day jury trial, Froland was acquitted of counts six and seven, and convicted on all remaining counts on February 11, 2003. On April 17, 2003, trial counsel moved for a new trial and a change of venue, again raising the County Prosecutor's connections to the O'Connor family. The court denied the motion, and sentenced Froland to an aggregate seven-year term. The judgment of conviction was filed on April 23, 2003.
We affirmed Froland's judgment of conviction on June 3, 2005. Froland I, supra, 378 N.J. Super. at 25. The Supreme Court granted Froland's petition for certification. The Court held that, while "Froland's behavior falls squarely within the strictures of the interference with custody statute," she could not be guilty of non-consent kidnapping under N.J.S.A. 2C:13-1(b) because she acted "with the permission of a parent," namely Kindt. Froland II, supra, 193 N.J. at 188, 197. The Court reversed our affirmance of the kidnapping convictions, and remanded on December 17, 2007. Id. at 201.
On April 4, 2008, the trial court resentenced Froland. The court dismissed count eight based on the Supreme Court's dismissal of counts one and two. The court sentenced Froland to concurrent terms of five years in prison on counts three and four, and to six months in prison on count five.
Froland filed a pro se PCR petition challenging her remaining convictions. The petition was stamped "received" by the trial court on June 3, 2008, but was not stamped "filed" until June 20, 2008. Froland again filed a motion to change venue and to disqualify the Prosecutor's Office based on O'Connor's father. The PCR court denied the motion on March 11, 2010. On February 25, 2011, Froland's PCR counsel filed an amended PCR petition. After hearing argument, the PCR court denied Froland's amended PCR petition in a May 10, 2012 order supported by a comprehensive opinion.
II.
Froland appeals, raising the following arguments:
POINT I — THE PCR COURT MISAPPLIED ITS DISCRETION IN APPLYING THE PROCEDURAL BARS OF R. 3:22-4, R. 3:22-5 AND R. 3:22-12 BECAUSE DEFENDANT'S ARGUMENTS CONCERNING TRIAL COUNSEL'S DEFICIENT PERFORMANCE, AND THE RELATIONSHIP BETWEEN THE PROSECUTOR AND THE PURPORTED VICTIM'S FAMILY, WERE RAISED IN THE CONTEXT OF A VIOLATION OF HER SIXTH AND FOURTEENTH AMENDMENT RIGHTS.
POINT II — THE MATTER SHOULD BE REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE DEFENDANT
MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ TEST.
POINT III — THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
To show ineffective assistance, Froland must meet the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Fritz, 105 N.J. 42 (1987). "The defendant must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.' In making that demonstration, a defendant must overcome a strong presumption that counsel rendered reasonable professional assistance." State v. Parker, 212 N.J. 269, 279 (2012) (citation omitted).
Second, "a defendant must also establish that the ineffectiveness of his [or her] attorney prejudiced his [or her] defense. 'The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 279-80. This "is an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" State v. Allegro, 193 N.J. 352, 367 (2008).
A PCR court need not grant an evidentiary hearing unless "'a defendant has presented a prima facie [case] in support of post-conviction relief.'" State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "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." Ibid.
If the PCR court has not held an evidentiary hearing, we "conduct a de novo review." State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We must hew to that standard of review.
We note that, before our decision on direct appeal, Froland was paroled after serving sixteen months of her sentence. Froland II, supra, 193 N.J. at 192 n.3; Froland I, supra, 378 N.J. Super. at 39. The State has not claimed that Froland's appeal has been mooted by release from custody or the absence of any collateral consequences. See State v. Roper, 362 N.J. Super. 248, 254 (App. Div. 2003).
III.
The PCR court found that Froland's June 2008 PCR petition was not filed within five years after the April 23, 2003 filing of the judgment of conviction, making it untimely under Rule 3:22-12. We agree substantially for the reasons set forth in the PCR court's thorough opinion. We add the following.
It is undisputed that Froland failed to file her PCR petition within five years. Froland claims her failure to file within that period was excusable because of the subsequent appellate proceedings and resentencing. However, "[t]he five-year period established by the Rule commences when the judgment of conviction is entered and is generally neither stayed nor tolled by an appellate or other proceeding." State v. Murray, 162 N.J. 240, 249 (2000); State v. Cummings, 321 N.J. Super. 154, 166-67 (App. Div. 1999), certif. denied, 162 N.J. 199 (1999). Moreover, because Froland is challenging the original convictions, "the date of the judgment of conviction controls even if there are subsequent sentencing proceedings" resulting in an amended judgment. State v. Cann, 342 N.J. Super. 93, 102 (App. Div.), certif. denied, 170 N.J. 208 (2001); see State v. Afanador, 151 N.J. 41, 52-53 (1997).
Thus, Froland's claim fails to meet the requirements of the Rule as it was written at the time she filed her pro se PCR petition. R. 3:22-12(a) (2002) (stating no "petition shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect").
Furthermore, before Froland's counsel filed her amended PCR petition raising these claims, Rule 3:22-12 was amended to require a defendant to show "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] procedural rule 'is in general to be deemed applicable to actions pending on its effective date.'" State v. Reevey, 417 N.J. Super. 134, 148 n.2 (App. Div. 2010) (quoting Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 120 (1973)), certif. denied, 206 N.J. 64 (2011); see Shimm v. Toys from the Attic, Inc., 375 N.J. Super. 300, 304-05, (App. Div. 2005); see also State v. Rose, 425 N.J. Super. 463, 468 (App. Div. 2012). Froland also failed to make that showing.
Under the amended Rule 3:22-12, Froland cannot evade these requirements by invoking Rule 1:12. R. 3:22-12(c); see R. 1:3-4(c). In any event, Froland fails to prove "exceptional circumstances" by showing that "'adherence to [Rule 3:22-12] would result in an injustice.'" State v. Mitchell, 126 N.J. 565, 578-80 (1992) (quoting R. 1:1-2).
IV.
Even ignoring their untimeliness, Froland's ineffectiveness claims fail. Froland's claims largely concern the alleged relationship between the County Prosecutor and O'Connor's father. Before trial, trial counsel alleged that O'Connor's father had been a county counsel and had represented the County Prosecutor in federal litigation. Counsel orally and by letter argued that the alleged influence of O'Connor's father required the recusal of the judge, disqualification of the Prosecutor's Office, and change of venue. He raised the same allegations in the new trial motion.
Further, trial counsel, who represented Froland before this court, raised these allegations on appeal. We explicitly addressed Froland's claim "that the prosecutor vindictively charged her with kidnapping" because of the County Prosecutor's relationship with O'Connor's father, including "in his capacity as county counsel, [his] prior legal representation of the prosecutor." Froland I, supra, 378 N.J. Super. at 39. We held that her argument "fails" because "Froland's claims of vindictiveness are mere speculation, without factual basis. She is unable to establish any realistic likelihood that the prosecutor vindictively brought the kidnapping charges. And notably, the trial record fully supported those charges." Ibid.
Froland argues that trial counsel was nonetheless ineffective because he did not make a formal pretrial motion seeking disqualification, a change of venue, or dismissal of the indictment based on the alleged relationship between the County Prosecutor and O'Connor's family. The trial court noted that no formal motion or certification had been filed, but also denied the recusal request because "there's no basis for it." When trial counsel orally requested disqualification of the Prosecutor's Office or a change of venue, the court denied the request on the merits, and explicitly treated and denied it as "a request for dismissal of the charges." We similarly stated that Froland "failed to challenge the indictment pretrial," ibid., but resolved the claim on the merits, as set forth above. Thus, Froland cannot show trial counsel's failure to raise this claim by formal motion prevented adjudication on the merits.
More importantly, as we stated on direct appeal, Froland's underlying claim of improper influence by O'Connor's father on the proceedings is speculative and without factual basis. Thus, this claim was properly rejected on the merits by the trial court both pretrial and in denying trial counsel's formal new trial motion, and by the PCR court in denying the renewed motion to change venue and to disqualify the Prosecutor's Office. Because Froland's underlying claim lacked merit, trial counsel's informal method of raising it was not prejudicial. "It is not ineffective assistance of counsel for defense counsel not to make a meritless motion." State v. O'Neal, 190 N.J. 601, 619 (2007).
V.
Froland's PCR petition also claimed that the jury charge was improper because the overlap with the kidnapping instructions tainted the jury's consideration of the charges of interference with custody. The PCR court found this claim lacked merit, and ruled that it was barred under Rule 3:22-4 because it could have been litigated on direct appeal. Froland has not shown a "miscarriage of justice," or a "fundamental injustice." State v. Nash, 212 N.J. 518, 546-47 (2013); R. 3:22-4(a)(2). The PCR court also held that, to the extent Froland was claiming trial counsel was ineffective for not objecting to the instructions, the claim was meritless because the instructions were proper. We reject this claim for substantially the reasons set forth by the PCR court.
VI.
Froland asserts that trial counsel, while serving as appellate counsel in this court, should have argued more fully the claims concerning change of venue, disqualification, and instructional error. Froland also argues her new counsel in the Supreme Court should have raised those claims. However, "a defendant does not have a constitutional right to have appellate counsel raise every non-frivolous issue that defendant requests on appeal." State v. Gaither, 396 N.J. Super. 508, 515 (App. Div. 2007) (citing Jones v. Barnes, 463 U.S. 745, 753-54, 103 S. Ct. 3308, 3314, 77 L. Ed. 2d 987, 996 (1983)), certif. denied, 194 N.J. 444 (2008). Indeed, "[a] brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions." Jones, supra, 463 U.S. at 753, 103 S. Ct. at 3313, 77 L. Ed. 2d at 994. "This process of 'winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Smith v. Murray, 477 U.S. 527, 536, 106 S. Ct. 2661, 2667, 91 L. Ed. 2d 434, 445 (1986) (quoting Jones, supra, 463 U.S. at 751-52, 103 S. Ct. at 3313, 77 L. Ed. 2d at 994). Appellate counsel's efforts led to the reversal of Froland's two most serious convictions.
Because Froland's PCR petition failed to establish a prima facie case, it was properly denied without a hearing.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION