On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 98-07-1290 and 98-07-1291.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Winkelstein.
In July 1998, defendant was charged in one indictment with armed robbery, in violation of N.J.S.A. 2C:15-1, and numerous other offenses, and also charged in a second indictment with second-degree robbery, in violation of N.J.S.A. 2C:15-1. In the armed robbery, defendant stabbed the victim four times, causing serious personal injuries.
Defendant entered into a plea bargain under which he agreed to plead guilty to both robberies, and the State agreed to dismiss the other charges, to waive any extended term, and to recommend a fifteen-year term of imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the armed robbery, and a consecutive ten-year term with no period of parole ineligibility for the second-degree robbery. The trial court accepted the plea agreement and sentenced defendant to an aggregate twenty-five year term, subject to an 85% period of parole ineligibility on the fifteen-year term for armed robbery.
Defendant filed an appeal from his sentence, which we heard on an excess sentence calendar. See R. 2:9-11. After reviewing the sentencing record and hearing oral argument, we rejected defendant's argument that his sentence was excessive and affirmed the judgment of conviction. State v. Jackson, A-4855-00 (App. Div. Jan. 8, 2002).
On October 12, 2004, defendant filed a petition for post-conviction relief, which argued that the trial court had erred in failing to fully explain the consequences of the NERA component of his sentence and that his trial and appellate counsel had provided him with ineffective assistance.
On January 20, 2006, the trial court issued an oral opinion denying defendant's petition. The court ruled that the petition was time-barred because it was not filed within the five-year period allowed under Rule 3:22-12. The court concluded that defendant had not shown either the "excusable neglect" or "exceptional circumstances" required to justify a relaxation of that five-year time limit. The court also concluded that even if the petition had been timely filed, defendant had not established any basis for post-conviction relief.
On appeal, defendant presents the following arguments:
I. THE TRIAL COURT ERRED IN FINDING DEFENDANT'S PETITION WAS PROCEDURALLY BARRED.
II. DEFENDANT'S PLEA WAS NOT KNOWING AND VOLUNTARY BECAUSE HE WAS NOT INFORMED THAT THE NERA FIVE-YEAR PERIOD OF PAROLE SUPERVISION COULD RESULT IN A SENTENCE GREATER THAN THAT SET FORTH IN THE PLEA AGREEMENT (U.S. CONST. AMEND. V, VI, XIV; N.J. CONST. ART. I, PAR. 10) (Partially raised below).
III. THE TRIAL COURT ERRED WHEN IT DID NOT FIND TRIAL AND APPELLATE COUNSELS' FAILURES TO PROTECT DEFENDANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS, TRIAL BY JURY, PROOF BEYOND A REASONABLE DOUBT AND FUNDAMENTAL FAIRNESS DEPRIVED HIM OF THE EFFECTIVE ASSISTANCE OF COUNSEL (U.S. CONST. AMEND. V, VI, XIV; N.J. CONST., ART. I, PAR. 10) (Partially raised below).
We conclude, substantially for the reasons set forth in the trial court's oral opinion, that defendant's petition was untimely and that defendant failed to show the "excusable neglect" or "exceptional circumstances" required to extend the five-year period for filing a petition for post-conviction relief. See R. 3:22-12; State v. Mitchell, 126 N.J. 565, 578-80 (1992). We also note that even if defendant's petition had been timely, his argument that he should be allowed to withdraw his guilty plea because the trial court failed to provide the full explanation of the consequences of a NERA period of extended parole supervision mandated by State v. Johnson, 182 N.J. 232, 238-39 (2005) and State v. Freudenberger, 358 N.J. Super. 162, 170 ...