State v. Marolda, ___ N.J. Super. ___ (App. Div. 2022). On August 17, 2006, defendant entered into a plea agreement that resolved two cases against him: a criminal matter in which he was charged with crimes relating to the promotion of gambling, and a civil forfeiture action to recover monies defendant allegedly reaped from the gambling operation. Defendant’s wife had also been charged.
As Judge Geiger summarized it in his opinion for the Appellate Division today, ” i]In exchange for a recommended sentence of a three-year term of probation conditioned upon 180-days in jail, and the dismissal of the charges filed against defendant’s wife, defendant: (1) waived his right to indictment and trial by jury; (2) pled guilty to an accusation charging him with third-degree promoting gambling; (3) agreed to a consent order for final judgment in the civil forfeiture action forfeiting $3,000,000 to the [Bergen County prosecutor’s Office]; and (4) agreed to provide truthful testimony at the trial of any co-defendants.” Defendant provided a factual basis for his plea and stated, among other things, “that his attorney answered all of his questions, that he was satisfied with the services his attorney rendered, and that his answers to the questions on the plea form were truthful and accurate. Defendant acknowledged that by pleading guilty, he was admitting the truth of the charge. Defendant further acknowledged that he was entering the guilty plea freely and voluntarily without anyone forcing or threatening him to do so.”
On September 30, 2019, thirteen years after entering into the plea agreement, and without having appealed it at the time of its entry, defendant filed a motion for post-conviction relief. He claimed actual innocence, ineffective assistance of counsel, and that the State withheld exculpatory evidence. He also asserted that his testimony at the plea hearing was “fiction” and recanted his admissions made there. Finally, defendant sought a relaxation of the deadline for post-conviction relief applications, which is five years from the date of entry of the judgment of conviction being challenged, as provided by Rule 3:22-12(a)(1).
The Law Division denied the motion for post-conviction relief. Today, the Appellate Division affirmed.
Judge Geiger discussed at length the time bar of Rule 3:22-12 and noted that, under Rule 3:22-12(b), the time limit “shall not be relaxed” except in circumstances not present here. “Defendant filed his petition more than seven years after that five-year period expired. The delay did not fall within any of the exceptions to the time limitation imposed by Rule 3:22-12. Accordingly, his claims were clearly time-barred and were properly denied without an evidentiary hearing.” The panel also rejected “defendant’s claim that the time-bar imposed by the Rule can be circumvented by a claim of actual innocence under the facts and inordinate delays in this matter.”
Defendant also argued that the funds he forfeited should have been returned to him. Judge Geiger did not agree. In connection with the plea agreement, defendant waived and forfeited any right to contest the forfeiture. Moreover, Judge Geiger observed, “claims by innocent owners for the return of seized property are subject to the three-year statute of limitations imposed by N.J.S.A. 2C:64-8.” Defendant’s application was far too late to satisfy that statute.
“More fundamentally, the forfeiture action is a separate civil proceeding. Any application for relief from the judgment entered in the forfeiture action must be filed under Rule 4:50-1 in the Civil Part.” Defendant did not do that. And because motions under that Rule must be filed either within one year (if based on “excusable neglect” or newly discovered evidence) or “within a reasonable time” (for motions on the other grounds that defendant raised), he could not so move now. It was far past any “reasonable time.”