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State v. Simmons

February 20, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KIMBERLY SIMMONS, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 97-09-03950.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 28, 2007

Before Judges Cuff and Lihotz.

Defendant Kimberly Simmons appeals from the denial of her petition for post-conviction relief (PCR). She asserts the judge erred by applying Rule 3:22-12 to bar her PCR application that alleged ineffective assistance of trial and appellate counsel. On appeal, she adds that PCR counsel, too, was ineffective. We find no error in the denial of the PCR petition as time barred pursuant to Rule 3:22-12(a). Further, we reject the contention that PCR counsel was ineffective. Accordingly, we affirm.

Defendant was identified by John Thomas as the perpetrator in the shooting death of DeAndre Hawkins, which occurred during an illicit drug transaction. Following a jury trial, defendant was convicted of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), (a lesser included offense to the murder charge), third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a).

Defendant was sentenced on January 4, 1999. On the manslaughter charge, the court imposed a twenty-two-year term of imprisonment, with an eighty-five percent period of parole ineligibility under the "No Early Release Act," N.J.S.A. 2C:43-7.2. A concurrent five-year term of incarceration was ordered on the third-degree weapons offense.

We affirmed defendant's conviction and sentence in an unpublished opinion. State v. Simmons, No. A-3213-98 (App. Div. Nov. 6, 2000). The record does not reflect defendant sought certification.

Defendant filed her PCR on April 12, 2005. Defendant's certification is dated May 19, 2004; however, the PCR application was not filed until April 12, 2005. Thereafter, defendant was assigned counsel, who filed a supplemental letter brief on her behalf. Without granting an evidentiary hearing, Judge Merkelbach denied defendant's petition, setting forth his reasons in an oral decision rendered on April 25, 2006. This appeal followed.

Defendant presents these arguments for our consideration:

POINT I.

BECAUSE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL, APPELLATE AND POST-CONVICTION RELIEF COUNSELS HER PETITION SHOULD BE GRANTED AND HER CONVICTION REVERSED OR THE MATTER SHOULD BE REMANDED FOR A NEW POST-CONVICTION HEARING AND NEW COUNSEL SHOULD BE ASSIGNED. (PARTIALLY RAISED BELOW).

POINT II.

THE LOWER COURT ERRED IN FINDING THE FIVE YEARS TIME BAR OF R. 3:22-12 APPLIED HERE AS THE NEGLECT WAS EXCUSABLE AND EXCEPTIONAL CIRCUMSTANCES; R. ...


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