The opinion of the court was delivered by: Moses
On December 19, 1986, defendant, James Williams, was convicted in New Jersey Superior Court of armed robbery, possession of a weapon for an unlawful purpose, possession of a prohibited weapon and possession of a weapon without the requisite permit. On July 31, 1987, the trial Judge, Hon. James Madden, J.S.C., granted the State's motion for the imposition of an extended term, pursuant to N.J.S.A. § 2C:44-3a, and sentenced defendant to fifty years imprisonment with a twenty-five year period of parole ineligibility.
Defendant has submitted numerous appeals and petitions for post-conviction relief over the years. Defendant's motion for vacation of the extended term and for resentencing was denied on October 9, 1987. On November 6, 1989, the Appellate Division affirmed defendant's conviction. A petition for certification to the Supreme Court was denied on February 28, 1990.
On February 6, 1991, Judge Madden denied defendant's first petition for post-conviction relief and on April 2, 1991, he denied defendant's second petition. On July 5, 1991, Judge Madden denied a motion for reconsideration of the denial of defendant's second petition.
On January 8, 1993, the Appellate Division ruled on a consolidated appeal of defendant's motions. The Appellate Division found defendant's arguments to be without merit and affirmed Judge Madden's denials of the two post-conviction relief petitions and of the motion for reconsideration.
In each petition for post-conviction relief, including this one, defendant argued that Judge Madden improperly considered his prior Canadian conviction, which he asserts was uncounseled, to support the imposition of an extended term.
The prior denials of defendant's petitions for post-conviction relief and motion for reconsideration were all based, primarily, on defendant's failure to prove, by a preponderance of the evidence, that his prior Canadian conviction was uncounseled. Defendant has filed the instant petition based on recently obtained evidence; specifically, transcripts from the 1970 Canadian proceedings.
On April 29, 1994, this court held a hearing on defendant's present petition for post-conviction relief and rejected the State's argument that defendant's claim was procedurally barred by R. 3:22-5 and 3:22-12. The court also rejected the State's argument that defendant's petition was barred because the arguments posited were, or could have been, raised in a prior proceeding.
On July 20, 1970, defendant was convicted of robbery in the Court of General Sessions of the Peace, County of York, Ontario, Canada. The Canadian transcripts show that the proceedings lasted for three and one-half days, between July 15 and July 20, 1970. The first day and a half consisted of a voir dire concerning the admissibility of defendant's confession, which he alleged was coerced. During the voir dire the "Crown" called eight witnesses. All were cross-examined by defendant's attorney. In addition, the defense called two witnesses and defendant also testified. After the voir dire was completed, the court ruled that the confession was not coerced and was admissible in evidence.
The trial commenced on July 16, 1970. On the first day, the "Crown" called six witnesses, all of whom were cross examined by defendant's attorney. On July 17, 1970, the "Crown" called two witnesses, both of whom were cross examined by defendant's counsel.
On July 20, 1970, when the trial resumed, defendant dismissed his attorney. After the dismissal, the "Crown" called five more witnesses. Defendant declined to cross examine any of the witnesses except the eye-witness to the robbery. Defendant was convicted and on August 17, 1970, was sentenced to nine years in the penitentiary, but was reduced to eight years for time served.
This Canadian conviction was used by the New Jersey Superior Court for the imposition of an extended term, pursuant to N.J.S.A. § 2C:44-3a, at defendant's sentencing on July 31, 1987.
Defendant's present petition for post-conviction relief urges that the Canadian conviction was obtained in violation of his right to counsel, and was therefore improperly considered by the New Jersey court to support the imposition of an extended term.
R. 3:22-1 provides, "Any person convicted of a crime may . . . file . . . a petition for post-conviction relief." R. 3:22-2 holds that a petition for post-conviction relief is cognizable if there has been:
(a) Substantial denial in the conviction proceedings of defendants's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey; [or] (c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law.
The petitioner's burden of proof in establishing his right to post-conviction relief is the same as that borne by a civil suitor; namely, a fair preponderance of the credible evidence. State v. Zold, 105 N.J. Super. 194, 203 (Law Div. 1969), aff'd, 110 N.J. Super. 33 (App. Div.), certif. denied, 57 N.J. 131 (1970). The petitioner must be prepared to establish by a preponderance of the credible evidence that he is entitled to the requested relief. State v. Mitchell, 126 N.J. 565, 579 (1992). Specific facts must be alleged and articulated, which, if believed, would provide the court with an adequate basis on which to rest its decision. Ibid. Specifically, this defendant must show, by a preponderance of the evidence, that Judge Madden's consideration of his Canadian conviction to extend his sentence was either a substantial denial of his rights under the federal or New Jersey Constitutions and/or resulted in the imposition of a sentence in excess of, or not in accordance with, the sentence authorized by law.
STATE'S MOTION FOR RECONSIDERATION
On April 29, 1994, this Judge ruled that defendant's petition is not barred by R. 3:22-5 and R. 3:22-12. The State requests that the court reconsider her decision. The State argues that, pursuant R. 3:22-12, defendant's petition for post-conviction relief is time barred. Williams was sentenced on July 31, 1987, and this petition was filed on January 12, 1994, well outside the five year limitation set by the rule.
A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.
The State argues, first, that the rule serves to respect the need for finality of judgments and to allay the uncertainty associated with an unlimited possibility of relitigation. The State also argues that defendant has made no showing that the delay in filing the petition and its supporting documents was due to excusable neglect. The Assistant Prosecutor argues that the illegal sentence exception does not apply here because defendant's other convictions (1968 and 1969 Maryland convictions for larceny, 1969 Alabama conviction for assault and battery, 1979 New York conviction for unauthorized use of a vehicle, and 1985 New York conviction for grand larceny), provide more than ample support for the extended term. *fn1 Because this defendant thus qualifies for extended term sentencing, even if the Canadian conviction is excluded, there is no reason to relax the procedural bar, pursuant to R. 1:1-2.
Defendant argues that the illegal sentence exception applies to him, because his sentence was founded (at least in part), upon misinformation of a constitutional magnitude, and there was a reasonable probability that the defective prior conviction may have led the trial court to impose a heavier prison sentence than it otherwise would have imposed. See United States v. Tucker, 404 U.S. 443, 445-47, 92 S. Ct. 589, 590-92, 30 L. Ed. 2d 592, 595-96, (1972). Defendant argues that if Judge Madden had been aware at sentencing of the constitutional infirmity of his prior Canadian conviction, the factual circumstances of his background would have appeared in a different light.
This court concludes that the State's contention, that defendant failed to show that the delay in filing this petition was due to excusable neglect, is without merit. Defendant has made repeated attempts, through counsel and pro se, to raise the issue of the improper imposition of the extended term based on an uncounseled Canadian conviction. None of the several attorneys who have represented defendant, either at trial or on appeal, ever thoroughly investigated his claim concerning his prior uncounseled conviction and were thus unable to substantiate the improper use of that conviction in the imposition of this extended term.
After the Appellate Division, on the basis of the record before it, affirmed the trial court's denials of both petitions for post-conviction relief and the motion for reconsideration, defendant's newly retained attorney, Ms. Bomse, contacted Canadian authorities requesting specific information concerning whether defendant was represented by counsel in 1970. After receiving conflicting information from Canada regarding defendant's representation, she filed the present petition on or about January 3, 1994. Counsel finally received the transcripts from the 1970 Canadian proceedings in July 1994, and pursued the petition, believing defendant could now prove by a preponderance of the available evidence that his prior conviction was uncounseled.
Generally, courts require that when a defendant claims "excusable neglect" for the filing of a petition beyond the time prescribed by the rule, the petition itself must allege those facts supporting his claim. Mitchell, supra, 126 N.J. at 576-77; State v. Morales, 120 N.J. Super. 197 (App. Div. 1971), certif. denied, 62 N.J. 77 (1972). Defendant alleged facts supporting his claim in each of his filings. None of defendant's previous attorneys attempted to clarify the circumstances surrounding his Canadian conviction. When defendant's present attorney attempted to resolve the issue by contacting the Canadian authorities, she was initially given contradictory information. Therefore, any neglect on the part of defendant is excusable. *fn2
The State's second contention that the illegal sentence exception to the R. 3:22-12 time bar is inapplicable, because defendant's other convictions provide ample support for the extended term, is equally without merit.
In United States v. Tucker, supra the Supreme Court held that resentencing is required where there is a "reasonable probability that [a] defective prior conviction may have led the trial court to impose a heavier prison sentence than it otherwise would have imposed." 404 U.S. at 445-46, 92 S. Ct. at 590-2, 30 L. Ed. 2d at 595-601. The record reveals that Judge Madden specifically considered defendant's Canadian conviction before imposing sentence upon him. In fact, Judge Madden stated that if it were demonstrated to him that defendant had not been represented by counsel, then defendant should not have been sentenced to ...