On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 91-08-8250-05-I; Accusation No. 91-10-1018-A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Lihotz.
Defendant appeals from an order denying his petition for post-conviction relief (PCR). Defendant is serving a life term with a thirty-year period of parole ineligibility for murder, along with a consecutive fifteen-year term for four armed robberies with a five-year period of parole ineligibility. Defendant's conviction was entered on December 9, 1991, following defendant's guilty plea made in accordance with a plea agreement offered by the State. The plea offer combined the four armed robberies and related crimes charged in a twenty-six count indictment, along with an accusation for murder. By accepting the plea agreement, the State agreed to relinquish its request for the death penalty. However, the terms of the agreement left to the court's discretion whether the sentences for the robberies would be served consecutive with or concurrent to the murder sentence.
Defendant argues trial counsel was ineffective and coerced defendant to plead guilty because counsel failed to fully investigate the merits of the State's case. Additionally, defendant raises claims of ineffectiveness against appellate counsel when the Public Defender's Office refused defendant's request to file an appeal. Counsel advised defendant that an appeal was not in his best interest because his plea could be vacated in a capital case, which would expose defendant to the death penalty. See State v. Gibson, 68 N.J. 499, 512 (1975) (citing State v. Rhein, 117 N.J. Super. 112, 121 (App. Div. 1971)) (a defendant who has obtained sentence or charge concessions in consideration of the appeal-waiver would be subject to their revocation, at the option of the State, immediately upon the filing of the appeal).
After reviewing defendant's PCR petition, Judge Geiger found defendant's petition deficient because it was time-barred pursuant to Rule 3:22-12(a) and alternatively, because it lacked substantive merit. The judge did not grant an evidentiary hearing.
On appeal, defendant argues:
POINT I THE TRIAL COURT COMMITTED ERROR BY DENYING THE [DEFENDANT'S] MOTION FOR POST-CONVICTION RELIEF.
POINT II EXCUSABLE NEGLECT EXISTED TO OVERCOME THE TIME BAR TO [DEFENDANT'S] MOTION.
In a separate pro se brief, defendant adds the assertion that because the death penalty has been found to be "unconstitutional," the State "held a[n] UNFAIR and UNLAWFUL ADVANTAGE at the trial stage." We affirm.
It is well-settled that post-conviction proceedings are not a substitute for direct appeal. R. 3:22-3. "In the absence of the timely raising of an issue available on direct appeal or a constitutional infringement, relief will be granted in such proceedings only in exceptional circumstances involving a showing of fundamental injustice." State v. Cerbo, 78 N.J. 595, 605 (1979).
The articulated justification for the rigorous five-year time limit for filing PCR petitions, initially set forth in State v. Mitchell, 126 N.J. 565, 575-76 (1992), as well as the bases for relaxation of that time limitation, remains the standard when reviewing PCR applications. Ibid.; see also State v. Murray, 162 N.J. 240, 249 (2000). The five-year time bar should be relaxed only in exceptional circumstances. State v. Afanador, 151 N.J. 41, 52 (1997).
Our review of the record discloses that defendant has failed to allege or establish facts supporting excusable neglect and proffers no exceptional circumstances warranting relaxation of the time bar. We concur with the opinion of Judge Geiger that the petition asserting ineffective assistance of counsel was time-barred under Rule 3:22-12(a) and otherwise failed to establish that 1) counsel's performance was deficient, that is, it fell below an objective standard of reasonableness; and 2) counsel's deficient performance prejudiced the defense, that is, there is a reasonable probability that counsel's errors ...