Appellate Division Reverses, Awards Post-Conviction Relief in Pro-Bono Criminal Appeal
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Sean R. Kelly and Christopher J. Turano of Saiber LLC in Florham Park, New Jersey, acting as Designated Counsel for a criminal defendant in State of New Jersey v. E.W., __ N.J. Super. __, 2010 WL 1655819, April 27, 2010 (NO. A-0146-08T4), successfully obtained post-conviction relief vacating a 10-year portion of the defendant’s sentence for sexual assault.
The attorneys’ acceptance of the assignment was part of a pro bono program, promoted by Chief Justice Rabner, by which lawyers in private practice take on criminal appeals from the Office of the Public Defender.
E.W. was indicted in 1992, and convicted in 1996, on charges of first degree aggravated sexual assault. The charge with respect to one of the two victims originally resulted in a ten-year consecutive sentence. That particular offense occurred prior to the September 1, 1979 effective date of New Jersey's current Criminal Code, volume 2C. Volume 2C adopts the five-year statute of limitations of the prior Criminal Code, volume 2A, with respect to such offenses. In 1986, volume 2C was amended to extend the five-year limitations period.
Defendant petitioned for post-conviction relief (PCR), arguing his conviction was time-barred under the applicable statute of limitations, but the petition was denied.
On appeal, the Appellate Division reversed the sentence on that offense, holding 2A's five-year limitation period applied and defendant's convictions were time-barred. The Court noted that because the applicable five-year limitations period under 2A expired in 1984 before the limitation period was extended by amendment to the statute in 1986 and before defendant was indicted in 1992, defendant's conviction violated the constitutional prohibition against ex post facto laws. Stogner v. California, 539 U.S. 607, 632-22 (2003).
Moreover, because the PCR application sought to correct an "illegal sentence", the time-bar on PCR applications did not apply. R. 3:22-12. The Appellate Division therefore granted the PCR application and vacated the sentence.