RECORD IMPOUNDED

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

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 

NOT FOR PUBLICATION WITHOUT THE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.

August 27, 2018
2 A-3971-16T4

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.
3 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, 
4 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 
5 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.
6 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 
7 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 timebarred, 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.
8 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. 
9 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.