On appeal from the Superior Court, Law Division, Camden County.
Morton I. Greenberg, J. H. Coleman and Havey. The opinion of the court was delivered by Morton I. Greenberg, P.J.A.D.
A 13 count indictment was returned in Camden County in 1973 charging defendant as follows: first count, assault with intent to rape, N.J.S.A. 2A:90-2; second count, being armed while committing the assault, N.J.S.A. 2A:151-5; third count, kidnapping, N.J.S.A. 2A:118-1; fourth count, kidnapping while armed, N.J.S.A. 2A:151-5; fifth count, possession of a knife with the intent to use it unlawfully against another person, N.J.S.A. 2A:151-56; sixth count, possession of a weapon in a public place, N.J.S.A. 2A:151-41(c); seventh count, threatening to take a life, N.J.S.A. 2A:113-8; eighth count, assault with a deadly weapon, N.J.S.A. 2A:90-3; ninth count, atrocious assault and battery, N.J.S.A. 2A:90-1; tenth count, atrocious assault and battery, N.J.S.A. 2A:90-1; eleventh count, lewdness, N.J.S.A. 2A:115-1; twelfth count, abduction, N.J.S.A. 2A:86-2; thirteenth count, abduction while armed, N.J.S.A. 2A:151-5. Defendant pleaded not guilty and a jury trial ensued. At the trial counts 8, 10, 12 and 13 were dismissed and defendant was convicted on the remaining counts.
Defendant was sentenced on January 26, 1977 as follows. On counts 1 and 11 defendant was sentenced under the Sex
Offenders Act to consecutive sentences of 12 and 3 years. On all the other counts defendant was not sentenced under the Sex Offenders Act. On the third count defendant was sentenced to a term of not less than 30 years and not more than 35 years to run consecutively to the term on counts 1 and 11. On the second and fourth counts defendant was sentenced to terms of not less than one year nor more than two years to run concurrently with the term on the third count. On the fifth and sixth counts he was sentenced to terms of not less than one year nor more than three years to run concurrently with the term on the third count. On the seventh and ninth counts defendant was sentenced to terms of not less than three nor more than five years to run concurrently with the term on the third count. Defendant appealed and in an unreported decision on July 9, 1979 we affirmed his conviction but granted him substantial relief with respect to the sentence. Specifically we held as follows:
Accordingly, sua sponte, we will merge the two convictions for carrying a knife under counts five and six and the conviction on count seven of threat to kill into the convictions on counts one and two for assault with intent to rape while armed. See State v. Young, 77 N.J. 245, 248, n. 1 (1978), holding that a conviction for assault with an offensive weapon merges into that for assault with intent to kill; State v. Best, 70 N.J. 56 (1976), holding that possession of a dangerous knife and assault with a dangerous weapon merge into an armed robbery conviction. Therefore, we vacate the convictions and sentences imposed on counts five, six and seven. We also direct that the sentences on the non-sex offenses, kidnapping while armed (counts three and four) and atrocious assault and battery (count nine) be made concurrent with those imposed under the Sex Offender Act. State v. Clark, supra; State v. McCauley, supra.
On July 11, 1979 the trial court entered an order modifying the sentences in accordance with our opinion. Defendant's subsequent petition for certification was denied on March 11, 1980.
More than five years after the conviction and original sentence defendant filed a petition for post-conviction relief which the judge denied as untimely under R. 3:22-12. Subsequently
defendant filed a second petition for post-conviction relief.*fn1 In his supporting brief he asserted that the petition should be deemed timely as in his view the five-year limitations period in R. 3:22-12 should be measured from the completion of the appellate proceedings. Substantively he argued that he was entitled to relief because he had been denied effective assistance of counsel. He specifically asserted that his trial attorney:
On May 17, 1984 the judge denied the second petition as untimely under R. 3:22-12, it having been filed more than five years after the conviction. The judge further found that defendant had not demonstrated excusable neglect. ...