On appeal from Superior Court of New Jersey, Law Division, Camden County.
Approved for Publication March 20, 1996.
Before Judges Petrella, Skillman, and P.g. Levy. The opinion of the court was delivered by Skillman, J.A.D.
The opinion of the court was delivered by: Skillman
The opinion of the court was delivered by
A jury found defendant guilty under one indictment of armed robbery, in violation of N.J.S.A. 2C:15-1, and a second jury found defendant guilty under a separate indictment of receiving stolen property, in violation of N.J.S.A. 2C:20-7. On March 13, 1987, the court sentenced defendant as a persistent offender to an extended term of life imprisonment, with twenty years of parole ineligibility, for the armed robbery. On June 5, 1987, the court also sentenced defendant as a persistent offender to an extended term of ten years imprisonment, with five years of parole ineligibility, for receiving stolen property, to be served consecutively to his sentence for armed robbery.
On appeal, we affirmed both of defendant's convictions but vacated the sentences and remanded for resentencing. State v. Dugan, A-5392-86T4 (decided Nov. 6, 1989); State v. Dugan, A-5709-86T4 (decided Dec. 7, 1989). The Supreme Court denied defendant's petition for certification of our decision affirming his conviction for armed robbery. 121 N.J. 620 (1990). On January 31, 1990, the trial court resentenced defendant to an extended term of fifty years imprisonment, with fifteen years of parole ineligibility, for armed robbery and to a consecutive term of five years imprisonment, with one year of parole ineligibility, for receiving stolen property. On appeal from the amended judgments of convictions entered upon resentencing, we affirmed, State v. Dugan, A-3788-89T4 (decided July 29, 1992), and the Supreme Court denied defendant's petition for certification. 133 N.J. 429 (1992).
On January 25, 1994, defendant filed a petition for post-conviction relief. The trial court denied this petition on the ground that, with the exception of a challenge to the legality of defendant's sentence which is not being pursued on this appeal, defendant's claims were foreclosed by Rule 3:22-12, which bars a petition for post-conviction relief filed "more than 5 years after rendition of the judgment or sentence sought to be attacked" unless defendant shows "excusable neglect."
On appeal, defendant makes the following arguments:
I. THE TRIAL COURT ERRED IN DETERMINING THAT ALL POST-CONVICTION RELIEF ISSUES, OTHER THAN ILLEGAL SENTENCE WERE TIME-BARRED (Partially Raised Below).
A. The Petition for Post-Conviction Relief was Timely, Since it was Filed Within Five Years of the Last Judgments of Conviction.
B. The Petition for Post-Conviction Relief Was Timely, Since Appellate Remedies Had Not Been Exhausted Until January 1, 1993.
II. EVEN IF DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WAS UNTIMELY, HIS RELIANCE ON COUNSEL, HIS PLAIN READING OF R. 3:22-3 AND CASE-LAW CONSTITUTES EXCUSABLE NEGLECT (Not Raised Below).
III. CONSTITUTIONAL ISSUES, BOTH FEDERAL AND STATE AND THE INTERESTS OF JUSTICE REQUIRE GRANTING THIS PETITION FOR POST-CONVICTION RELIEF U.S. CONST. AMEND. VI; N.J. ...