On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 95-02-00396.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2007
Before Judges Stern and Collester.
On this appeal from the denial, on January 16, 2007, of his petition for post-conviction relief, defendant argues that "the lower court committed plain error, under R. 2:10-2, while construing a request for Public Defender application as another application for post-conviction relief." He thus asserts he was entitled to the assignment of counsel on the application. See R. 3:22-6(a). Defendant further asserts that he is entitled to counsel because he did not have the assistance of effective counsel when he entered his guilty plea. As we understand the essential claim, defendant contends that the introduction of medical records at a PCR hearing will show he was injured when he fell at Caesar's Casino in December 1991 and, despite his guilty plea to perjury in May 1995, did not commit perjury when testifying about his accident in a prior civil proceeding.*fn1
Judge Michael Donio denied the present petition without assigning counsel because he had previously denied, by opinion dated December 14, 2004, a petition which "asserted the same relief set forth in the instant motion." Defendant does not append that opinion letter, but does append his letter of November 9, 2006, requesting the assignment of counsel on this petition because he had not requested it on the first petition as a result of his prior experience with the Public Defender.
However, the letter seems to suggest he originally had counsel assigned but "was reluctant to continue on with them based on [his or her] no show performance."*fn2 In his 2006 letter to the judge, defendant also stated that the Public Defender should be "assigned to file this second PCR motion [because] I was foolish for attempting to represent myself on my first PCR" after becoming "apprehensive when there was a no-show" and did not want to wait for counsel to present his claim.
As expressed in our March 12, 2006 opinion affirming the denial in December 2004 of defendant's prior PCR petition challenging his conviction based on ineffective assistance of the counsel who represented him at the time of his guilty plea, defendant filed his "first pro se PCR" in October 2002 which "was dismissed without prejudice," and then filed a second petition in December 2003. It was that petition which was denied in the aforementioned letter opinion of December 14, 2004, which although not in the record now before us, was referred to, in our opinion on the appeal, as a "comprehensive" "eleven page . . . opinion" which detailed his reasoning.*fn3
In the opinion, we noted that the guilty plea was entered on May 8, 1995, that defendant was sentenced in June of that year, that the first petition was filed in October 2002, and subsequently "dismissed without prejudice," and that the second petition was filed in December 2003. We further found "that even viewing the evidence in a light most favorable to the defendant, there was a failure to make a prima facie showing of ineffective assistance to justify an evidentiary hearing."
We did not remand for the assignment of counsel on the appeal from the denial of the second petition, even though the denial of the first was "without prejudice" and the denial of both was without counsel. See R. 3:22-6(a)(b). Moreover, it is uncontested that, as noted in our opinion, the defendant's guilty plea was entered in 1995, and this petition, filed in November 2006, was over six years out of time, and was time barred in the absence of "excusable neglect." See R. 3:22-12. Yet there is nothing in the record before us which presents a basis for accepting the untimely petition, and defendant does not even assert any "excusable neglect," except by claiming that "the lower court took two years to hear the original PCR application and the State never complained at that time," and that its "actions estop them from complaining about the delay." Accordingly, while we do not address whether defendant should have been assigned counsel on either prior PCR, we can find no abuse of discretion in the judge's determination to proceed, and deny, the present PCR petition without finding the "good cause" necessary to assign counsel. See R. 3:22-6(b).
The order of January 16, 2007, is ...