On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 88-08-389-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 28, 2007
Before Judges Axelrad and Sapp-Peterson.
Defendant William Tozer was convicted by a jury in 1995 of felony murder, two counts of burglary, three counts of aggravated assault, and possession of a weapon for an unlawful purpose. The judge granted the State's motion to impose an extended term as a persistent offender under N.J.S.A. 2C:44-3a(1) on the second-degree aggravated assault conviction.
Defendant's aggregate sentence was life imprisonment plus forty years with a fifty-five year period of parole ineligibility. On January 4, 1999, we affirmed defendant's convictions but reduced his sentence to an aggregate term of life imprisonment plus twenty years with a forty-year period of parole ineligibility. State v. Tozer, No. A-4095-95T4 (App. Div., Jan. 4, 1999). On May 4, 1999, the Supreme Court denied certification. State v. Tozer, 160 N.J. 475 (1999). On January 7, 2004, the court denied defendant's first post-conviction relief (PCR) petition, which we affirmed on January 23, 2006. The Supreme Court denied certification. State v. Tozer, 187 N.J. 82 (2006).
In October 2006, defendant filed another PCR petition, contending his sentence was illegal due to an insufficiency in the indictment. Judge Alvarez denied defendant's application by order of December 15, 2006 as time-barred pursuant to Rule 3:22-12, noting that "[t]he sufficiency of the indictment having been established some sixteen years ago, the defendant has failed to make a showing that his delay past five years was due to the defendant's excusable neglect." The court further noted that upon an in-depth review of defendant's case file, it was discovered that several motions to dismiss defendant's indictment had been made on his behalf previously and that the motions were dismissed by order of February 21, 1990.
Defendant's appeal is without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons articulated by the trial court.
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