                             RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE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-3971-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JAMES E. ZOLA,

     Defendant-Appellant.
_________________________________

              Submitted August 21, 2018 – Decided August 27, 2018

              Before Judges Messano and Geiger.

              On appeal from Superior Court of New Jersey,
              Law Division, Mercer County, Accusation No.
              90-02-0102.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Frank M. Gennaro, Designated
              Counsel, on the brief).

              Angelo J. Onofri, Mercer County Prosecutor,
              attorney for respondent (Laura C. Sunyak,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

        Defendant James E. Zola was found guilty of capital murder

and other offenses and sentenced to death.                  State v. Zola, 112
N.J.    384,   390-91   (1988).       The     Court     affirmed      defendant's

convictions but vacated the death sentence and remanded the matter

for retrial of the penalty phase.                 Id. at 439-40.      Thereafter,

defendant and the State entered into a plea bargain, whereby

defendant's convictions were vacated in return for his guilty

pleas to murder, kidnapping and first-degree robbery.                 In February

1990, without preparation of a Pre-Sentence Investigation Report

(PSI),1 defendant pled guilty and was sentenced the same day to

life     imprisonment    with     a   thirty-year           period    of    parole

ineligibility on the murder conviction, a thirty-year term with a

fifteen-year period of parole ineligibility on the kidnapping

conviction, and a fifteen-year term with a five-year period of

parole ineligibility on the robbery conviction.                      Although the

judgment of conviction (JOC) reflects each sentence was to run

consecutively, it nevertheless states the "total" sentence was

life     imprisonment    with     a     fifty-year          period    of    parole

ineligibility.2     Defendant     did       not    appeal    his   conviction     or

sentence.

       On December 9, 2011, defendant filed a pro se petition for

post-conviction relief (PCR) which in large part challenged events


1
    It is unclear whether any PSI report was ever prepared.
2
  In its brief, the State agrees that defendant's sentence was a
life term with fifty years of parole ineligibility.

                                        2                                  A-3971-16T4
at his trial.     However, defendant also asserted that he did not

knowingly and voluntarily plead guilty, and plea counsel provided

ineffective assistance.            In supplemental certifications filed

after the appointment of PCR counsel, defendant claimed he was

under the influence of "psychotropic medications" that affected

his judgment and understanding at the time of his plea, plea

counsel never told defendant he waived his right to appeal, and

he    was   sentenced    without    preparation   of   a     new    PSI   report.

Defendant also furnished the report of psychiatrist Dr. Daniel P.

Greenfield, who opined that defendant was plausibly "confused and

sedated" at the time he pled guilty.              However, absent further

documentation, Dr. Greenfield could not opine "with a degree of

reasonable     medical    probability"     that   defendant        was    in   fact

"confused and cognitively impaired" at the time of the plea or

that defendant would not otherwise have pled guilty but for the

effect of his medications.

       Defendant explained his delay in filing the PCR petition was

due    to   excusable    neglect,    specifically,     the    effect      of    his

medications.     Dr. Greenfield offered no opinion on this issue.

       PCR counsel advanced additional contentions at oral argument,

asserting defendant's lack of access to his trial file occasioned

by the lapse in time was an additional basis for the delay. Counsel

argued defendant's sentence was excessive and, at the least,

                                       3                                   A-3971-16T4
defendant should be resentenced after completion of a current PSI

report.

     Judge Robert W. Bingham, II, issued a comprehensive written

opinion that accompanied the order denying defendant's petition.

Although    there   was   no   transcript   of   the   plea   allocution    or

sentencing, Judge Bingham noted the plea form, which defendant

legibly signed, indicated his understanding of the charges, waiver

of his rights, including his right to file an appeal and his

sentence exposure.

     Judge Bingham cited Rule 3:22-12(a)(1), which prohibits the

filing of a PCR petition more than five years after entry of the

JOC under attack unless the delay was the result of "excusable

neglect,"    and    defendant's     allegations,       if   true,   raise    a

"reasonable probability" that "enforcement of the time bar would

result in a fundamental injustice." Ibid. Judge Bingham concluded

the petition was "fatally untimely."

     Judge Bingham nonetheless addressed all of defendant's IAC

claims as to plea counsel.           He noted that because the Court

affirmed defendant's convictions and only remanded the matter for

a new penalty phase trial, defendant's claim that he would not

have pled guilty but for plea counsel's deficient advice was

specious.    Judge Bingham also rejected the contention that plea

counsel failed to investigate defendant's psychological state at

                                     4                               A-3971-16T4
the time of the plea, noting the jury had rejected defendant's

diminished capacity defense at trial, and Dr. Greenfield offered

no opinion supporting defendant's current claim.        In sum, the

judge rejected any argument that defendant's guilty plea was not

knowingly and voluntarily entered.

     Judge Bingham refused to consider defendant's claims of trial

error, concluding they either could have been raised on direct

appeal but were not, or were otherwise adjudicated on direct

appeal.   See R. 3:22-4 and -5.     He rejected defendant's argument

regarding the sentence, noting that the sentence was not illegal

or otherwise cognizable on PCR review.     R. 3:22-2(c).

     Finally, Judge Bingham rejected defendant's contention that

he should be resentenced because no PSI report was completed prior

to sentencing.    Although such reports are mandatory, State v.

Mance, 300 N.J. Super. 37, 66 (App. Div. 1997), the Rule in effect

when defendant was convicted did not require a PSI report when a

defendant was sentenced to death.     R. 3:21-2(a) (1990).   The judge

reasoned that because the trial judge presided over the taking of

defendant's guilty plea, and defendant had remained incarcerated

between the trial and subsequent sentencing, there was no reason

to grant PCR relief solely to resentence defendant.




                                  5                            A-3971-16T4
     Before us, defendant first contends that we must remand the

matter to the Law Division to reconstruct the record of his guilty

plea.   We disagree.

     At the PCR hearing, the parties stipulated that a transcript

of the proceedings could not be produced despite diligent efforts.

Apparently,   a   transcript   had   never    been   produced,   and   the

stenographic notes from the plea proceedings could not be located

more than two decades later.         Defendant acknowledges that the

passage of time has resulted in the unavailability of both the

trial judge and trial prosecutor, both now deceased. It is unclear

whether plea counsel was still available, but, the record fails

to include any certification from her, and, therefore, no alleged

facts that dispute Judge Bingham's conclusions.

     We also note that defendant never sought this relief from

Judge Bingham.     See State v. Robinson, 200 N.J. 1, 20 (2009)

(noting "the obvious need to create a complete record and to

preserve issues for appeal").        Nor did defendant move for this

relief while the appeal was pending.         See R. 2:5-3(f).

     More importantly, missing transcripts do not implicate due

process rights unless a defendant can demonstrate due diligence

to correct the deficiency and resulting prejudice.               State v.

Bishop, 350 N.J. Super. 335, 347 (App. Div. 2002). Here, defendant

can do neither.    He waited more than two decades to present his

                                     6                            A-3971-16T4
petition.    Additionally, his claims, which center on the effect

medications had on his mental state when he pled guilty, are bald

assertions in light of Dr. Greenfield's equivocal report.             See

State v. Porter, 216 N.J. 343, 355 (2013) (noting a PCR defendant

"must   allege   specific   facts       and   evidence   supporting   his

allegations").   There is no showing of prejudice.

     Defendant also argues he was entitled to an evidentiary

hearing on his petition, specifically contending it was not time-

barred, or alternatively, that he demonstrated excusable neglect

for the late filing, plea counsel was ineffective, his guilty plea

was not knowing and voluntary and the sentence was excessive due

to misapplication of State v. Yarbough, 100 N.J. 627 (1985).          All

these contentions lack sufficient merit to warrant discussion in

a written opinion, Rule 2:11-3(e)(2), and we affirm substantially

for the reasons expressed by Judge Bingham's thoughtful opinion.

     Lastly, defendant argues the failure to order a PSI report

violated N.J.S.A. 2C:44-6, which makes preparation of the report

mandatory.    See also R. 3:21-2(a) (requiring completion of PSI

report prior to sentencing).   As a result, defendant contends his

sentence was "illegal," and his challenge was not time-barred.

See R. 3:21-10(b)(5) (permitting an application to correct an

illegal sentence to be filed at any time).           Notably, the State

fails to address this argument in its brief.

                                    7                            A-3971-16T4
      In State v. Richardson, 117 N.J. Super. 502, 505 (App. Div.

1971), the defendant refused to cooperate with the probation

department in preparation of the PSI report, resulting in no report

being furnished to the court prior to sentencing.                Interpreting

prior versions of the statute and Rule consistent with current

iterations, we accepted the defendant's argument that a sentence

imposed without a PSI report was "illegal."              Id. at 504-05.        We

also rejected the State's contention that the defendant had waived

his right to a PSI report, "hold[ing] that as a general rule, a

defendant   cannot     waive   the   mandatory     provision    that   such    an

investigation and report must be submitted to the court before the

imposition of sentence."        Id. at 506.

      We are therefore constrained to vacate the sentences imposed

on   defendant   and   remand    the    matter    to   the   trial   court    for

preparation of a PSI report and resentencing.                Given the reason

for our remand, in accordance with the Court's guidance in State

v. Randolph, 210 N.J. 330 (2012), the judge shall consider the

appropriate sentence "as [defendant] stands before th[e] court at

the moment of resentencing."           Id. at 349.     We further note that

"where the sentence imposed in the first instance was illegal, a

defendant has no basis to argue that imposition of a harsher

sentence on appeal is prohibited."               State v. Eckert, 410 N.J.



                                        8                               A-3971-16T4
Super. 389, 407 (App. Div. 2009) (citing State v. McCourt, 131

N.J. Super. 283, 287-88 (App. Div. 1974)).

      Lastly, the remand shall provide the opportunity for the

court to clarify what may have been a purely technical error in

the judgment of conviction, which standing alone would not require

the substantive resentencing that we have now ordered.             Randolph,

210 N.J. at 351 (citing State v. Tavares, 286 N.J. Super. 610, 616

(App.   Div.     1996)   (distinguishing    "abbreviated     resentencing

proceedings for the purpose of correcting technical errors")).              As

noted, although the judge imposed consecutive sentences, the only

consecutively imposed feature of the sentence was the total period

of   parole    ineligibility;   the   judgment   of   conviction    did   not

aggregate the consecutive terms for kidnapping and robbery onto

the life sentence imposed for murder.       In resentencing defendant,

the judge shall have the opportunity to address this anomaly.

      Affirmed in part, reversed in part.         The sentences imposed

are vacated and the matter is remanded for resentencing.




                                      9                              A-3971-16T4
