On appeal from Superior Court of New Jersey, Law Division, Burlington County, Accusation No. 95-05-0274.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 9, 2008
Before Judges Skillman and Grall.
In return for the State's promise to dismiss charges for murder and unlawful possession of a weapon and recommend an aggregate sentence of forty years with a twenty-year term of parole ineligibility, defendant Lanise Sutton plead guilty to aggravated manslaughter, N.J.S.A. 2C:11-4a, possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, and hindering apprehension, N.J.S.A. 2C:29-3b(1). On July 21, 1995, the trial judge imposed a sentence consistent with the plea agreement and entered the final judgment. This court affirmed the judgment, and the Supreme Court denied defendant's application for further review. State v. Sutton, A-1171-95 (App. Div. Apr. 22, 1996) (affirming after argument pursuant to Rule 2:9-11), certif. denied, 147 N.J. 575 (1996).
In 1996, defendant moved before the trial court for an order vacating her guilty plea or modifying her sentence. The judge rejected defendant's claims of ineffective assistance of counsel, concluded that she entered her plea knowingly and voluntarily, determined that her sentence was proper and denied all relief. This court affirmed, and the Supreme Court denied defendant's petition for certification. State v. Sutton, A-7132-95 (App. Div. June 12, 1997), certif. denied, 151 N.J. 470 (1997).
In 1998, the trial judge denied defendant's first petition for post-conviction relief. On appeal from that denial, defendant contended that she did not receive effective assistance of counsel because her attorney did not consult with her, review discovery with her or advise her of the maximum sentence she could receive. We affirmed, and the Supreme Court denied defendant's petition for certification. State v. Sutton, A-2432-99 (App. Div. May 29, 2001), certif. denied, 170 N.J. 206 (2001).
This appeal is from the denial of defendant's second petition for post-conviction relief. The petition was filed on April 24, 2007. For reasons stated in a written decision dated October 1, 2007, Judge Morley denied relief.
Defendant presents two issues on appeal.
I. DEFENSE COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE BECAUSE COUNSEL FAILED TO ADVISE DEFENDANT-APPELLANT LANISE SUTTON THAT IT WAS HER RIGHT TO TESTIFY AT TRIAL, EXPLAIN THE PROS AND CONS OF TESTIFYING AT TRIAL, AND TO PROCEED TO TRIAL AT ALL, VIOLATING HER RIGHT TO TESTIFY IN HER OWN DEFENSE[. U.S. Const. amends. VI and XIV; N.J. Const. art. I, ¶ 10.]
II. BECAUSE THE MITIGATING FACTORS SUBSTANTIALLY OUTWEIGH THE AGGRAVATING FACTORS, THE DEFENDANT-APPELLANT, LANISE SUTTON, SHOULD BE SENTENCED TO A LESSER-INCLUDED TERM AND/OR DEGREE.
The arguments raised have no merit and warrant only brief comment beyond the discussion contained in the trial judge's opinion. R. 2:11-3(e)(2).
The trial judge properly denied relief because the petition was not timely filed. Although a defendant may file a petition to correct an illegal sentence "at any time," no other petition may be filed "more than [five] years after rendition of the judgment or sentence sought to be attacked unless [the petitioner] alleges facts showing that the delay . . . was due to defendant's excusable neglect." R. 3:22-12(a). This petition was filed more than ten years after entry of the judgment of conviction and sentence and does not include any factual allegation that would permit a finding of excusable neglect or exceptional circumstances warranting relief from the bar. State v. Afanador, 151 N.J. 41, 52 (1997); State v. Mitchell, 126 N.J. 565, 576-80 (1992). Because ...