NOT FOR PUBLICATION WITHOUT THE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-5580-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FRANK M. BROWN, a/k/a FRANK
ACE, FRANK BLACKWELL,
and SONNY BROWN,
Defendant-Appellant.
_______________________________
Submitted October 28, 2019 – Decided November 12, 2019
Before Judges Fasciale and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Indictment No. 75-03-
0602.
Joseph E. Krakora, Public Defender, attorney for
appellant (Justin T. Loughry, Designated Counsel, on
the briefs).
Jennifer Webb-McRae, Cumberland County Prosecutor,
attorney for respondent (Andre R. Araujo, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from a January 29, 2018 order denying his petition for
post-conviction relief (PCR), which defendant filed more than forty years after
the commission of the underlying crimes. Defendant asserts his trial and
appellate counsel rendered ineffective assistance. Judge Robert G. Malestein
denied defendant's petition without an evidentiary hearing, and rendered a
twenty-one page written opinion.
The first petition for PCR must be filed within five years of the date of
judgment of conviction. R. 3:22-12(a)(1). A late filing may be considered if
the petition itself shows excusable neglect for the late filing and that a
fundamental injustice will result if defendant's claims are not considered on their
merits. State v. Brewster, 429 N.J. Super. 387, 400 (App. Div. 2013). In
evaluating whether to relax the time bar, a judge should consider "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." State v. McQuaid, 147 N.J. 464, 485 (1997) (internal
quotation and citation omitted).
"Absent compelling, extenuating circumstances, the burden to justify
filing a petition after the five-year period will increase with the extent of the
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2
delay." State v. Afanador, 151 N.J. 41, 52 (1997) (citing State v. Mitchell, 126
N.J. 565, 580 (1992)). "Where the deficient representation of counsel affected
'a determination of guilt or otherwise wrought a miscarriage of justice,' a
procedural rule otherwise barring [PCR] may be overlooked to avoid a
fundamental injustice." Brewster, 429 N.J. Super. at 400 (quoting Mitchell, 126
N.J. at 587).
As the PCR judge emphasized, the underlying crime occurred in
December 1975; defendant was sentenced in March 1977; and the judgment of
conviction was entered in April 1977. Defendant's petition for PCR was not
filed until October 1, 2015, almost forty years after the crime and subsequent
entry of judgment. The PCR judge was:
[M]indful that the State simply cannot prosecute a case
for a crime which occurred [forty] years ago. The State
has indicated that the physical evidence is destroyed,
damaged[,] or useless. Witnesses have died, the trial
transcript is incomplete[,] and memories have certainly
faded. However, [forty] years ago the evidence of guilt
was overwhelming[.]
The PCR judge noted, "[t]here is not a scintilla of evidence or . . . excusable
neglect asserted nor argued by [defendant]." The PCR judge further stated
"there are no factual allegations demonstrating that the delay was due to
[defendant's] excusable neglect." As the State correctly emphasizes, defendant
A-5580-17T3
3
does not attempt to provide any sort of "plausible explanation" for his failure to
file a timely PCR. The PCR judge denied the petition as time-barred, but also
rejected defendant's contentions on the merits.
On appeal, defendant raises the following arguments:
POINT I
[DEFENDANT] WAS DENIED THE EFFECTIVE
ASSISTANCE OF TRIAL COUNSEL, AND
THEREBY THE RIGHTS OF DUE PROCESS AND A
FAIR TRIAL.
A. THE PURPOSE OF A PETITION FOR [PCR] IS TO
AFFORD A DEFENDANT A LAST OPPORTUNITY
TO RAISE A CONSTITUTIONAL CHALLENGE TO
HIS CONVICTION.
B. A PRIMA FACIE SHOWING OF INEFFECTIVE
ASSISTANCE OF COUNSEL MANDATES
APPROVAL OF [DEFENDANT'S] REQUEST FOR
RELIEF OR, IN THE ALTERNATIVE, AN
EVIDENTIARY HEARING.
C. DEFENSE COUNSEL ERRED IN FAILING TO
OBJECT TO THE VICTIM'S SISTER'S HEARSAY
REPORT OF WHAT THE VICTIM HAD TOLD HER,
HOURS BEFORE HER DEATH, AS TO THE
CLOTHING OF HER VISITOR AND STATEMENTS
AND CONDUCT OF THE MAN WHO HAD VISITED
HER EARLIER IN THE DAY OF HER DEATH.
D. [DEFENDANT] HAD AVAILABLE A VALID
FOURTH AMENDMENT ARGUMENT AGAINST
THE POLICE'S INTRUSION WITHOUT A
WARRANT INTO HIS LIVING SPACE, AND
COUNSEL FAILED TO ASSERT IT, AND THUS HE
A-5580-17T3
4
SUFFERED A VIOLATION OF HIS
CONSTITUTIONAL RIGHTS.
E. FAILURE TO OBJECT TO EVIDENCE OF
[DEFENDANT'S] INMATE/CONVICTED STATUS
OR TO SEEK A LIMITING INSTRUCTION
CONSTITUTED INEFFECTIVE ASSISTANCE OF
COUNSEL.
F. DEFENSE COUNSEL ERRED IN FAILING TO
OBJECT TO TESTIMONY THAT IN RESPONSE TO
A PARTICULARLY IMPORTANT POLICE
QUESTION, [DEFENDANT] INVOKED HIS RIGHT
TO COUNSEL – AN INVOCATION THAT IS
IMPROPER TO PLACE BEFORE THE JURY, AND
THAT THE JURY NEVER SHOULD HAVE HEARD.
G. DEFENSE COUNSEL FAILED TO PROTECT
DEFENDANT'S FIFTH AMENDMENT RIGHTS;
DEFENSE COUNSEL ERRED IN FAILING TO
OBJECT TO THE INTRODUCTION OF ANY
QUESTIONING BY POLICE AFTER [DEFENDANT]
HAD EXPRESSED HIS DESIRE TO HAVE
COUNSEL, AT THEIR FIRST MEETING, ON THE
DAY OF HIS DETENTION, AND SUCH POLICE
CONDUCT VIOLATED [DEFENDANT'S] FIFTH
AMENDMENT AND MIRANDA RIGHTS.
H. THE PROSECUTOR'S SUMMATION FEATURED
SEVERAL IMPROPRIETIES, MOST NOTABLY A
FORBIDDEN "CALL TO ARMS[,"] THAT
DEPRIVED [DEFENDANT] OF A FAIR TRIAL –
AND THAT DEFENSE COUNSEL ALLOWED TO
PASS WITHOUT OBJECTION.
I. THE [JUDGE] ERRED IN CLOSING OFF THE
OPTION OF A LESSER INCLUDED CONVICTION
AND[,] IN EFFECT[,] PARTIALLY DIRECTING A
A-5580-17T3
5
VERDICT ON FELONY MURDER; TRIAL
COUNSEL FAILED TO OBJECT; AND ALTHOUGH
TRIAL COUNSEL PROPERLY OBJECTED TO THE
FLAWED INDICTMENT (THAT FAILED TO
ALLEGE A PREDICATE FELONY) APPELLATE
COUNSEL IGNORED THE ISSUE, THUS
COMPROMISING [DEFENDANT'S] APPEAL.
POINT II
APPELLATE COUNSEL ERRED IN FAILING TO
RAISE ON APPEAL THE MULTIPLE ISSUES SET
FORTH HEREIN.
POINT III
THE [JUDGE] IN THE INTEREST OF JUSTICE
SHOULD HOLD THIS PETITION NOT TIME
BARRED.
POINT IV
THE [JUDGE'S] RETROSPECTIVE
TRIVIALIZATION OF FORMER COUNSEL[S']
LAPSES AS "STRATEGIC CHOICES" IS A
CONCLUSORY RATIONALIZATION WITHOUT
ANY BASIS.
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 Judge Malestein gave in his well-reasoned and comprehensive opinion.
In addition to agreeing that defendant's petition is time-barred, we add the
following brief remarks.
To establish a prima facie claim of ineffective assistance of counsel,
defendant is obliged to show not only that the particular manner in which
A-5580-17T3
6
counsel's performance was deficient, but also that the deficiency prejudiced his
right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); State
v. Fritz, 105 N.J. 42, 52 (1987). Under the first prong of the Strickland test,
defendant must demonstrate that "counsel made errors so serious that counsel
was not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." Strickland, 466 U.S. at 687. Under the second prong, defendant
must show "that counsel's errors were so serious as to deprive the defendant of
a fair trial, a trial whose result is reliable." Ibid. That is, "there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694. There is a strong
presumption that counsel "rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment." Id. at 690.
Defendant did not satisfy either prong of the Strickland test.
Affirmed.
A-5580-17T3
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STATE OF NEW JERSEY VS. FRANK M. BROWN (75-03-0602, CUMBERLAND COUNTY AND STATEWIDE)
Combined Opinion