October 10, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EDWIN RIVERA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 83-02-0896.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2008
Before Judges Wefing and LeWinn.
Defendant Edwin Rivera appeals from the October 18, 2006 order denying his petition for post-conviction relief (PCR), based upon claims of ineffective assistance of trial and appellate counsel.
In 1983, defendant was indicted for murder, in violation of N.J.S.A. 2C:11-3(a); and possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(d). He was tried to a jury and convicted on both counts. On November 18, 1983, defendant was sentenced to life imprisonment with a thirty-year period of parole ineligibility on the murder count, and a concurrent five-year term on the weapons count. Defendant appealed, raising only issues of trial error. We found no error and affirmed. State v. Rivera, No. A-1999-83 (App. Div. December 12, 1986).
On May 16, 2003, defendant filed a PCR petition claiming that his trial counsel had been ineffective by failing to convey any plea offers to him, and that appellate counsel had been ineffective for failing to raise trial counsel's deficiency on direct appeal. Counsel was assigned to represent defendant, and the trial judge heard oral argument on October 17, 2006. At the conclusion of argument, the judge denied defendant's petition in its entirety. On the following day, the judge entered an order reflecting his decision.
On appeal, defendant presents the following issues for our consideration:
THE DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST CONVICTION RELIEF.
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION [RELIEF] WITHOUT A PLENARY HEARING.
We have considered these contentions in light of the record and the applicable law. Finding no merit to either argument, we affirm.
On PCR, defendant alleged that his trial counsel never informed him of any plea offers prior to trial.*fn1 The PCR judge, accepting that allegation as true, and opining that the failure to communicate a proffered plea would be "deficient" on counsel's part, nonetheless denied relief stating:
Nowhere in any of petitioner's files does he express a legitimate basis for which the Court could find that there was even a plea offer or that he could provide a factual basis for his claim of ineffective assistance of counsel.
A petition for post conviction relief is not to serve as a fishing expedition for defendant or petitioner's search for claims of ineffective assistance of counsel. It has to be real and... it has to have a claim of some meaningful basis and it has to meet some standard otherwise every inmate at every State Prison Facility will petition for an evidentiary hearing regardless of whether they have any basis to do so for each of their own cases.
In State v. Marshall, [148 N.J. 89, 158 (1997)], the New Jersey Supreme Court expressed the same sentiment in stating an evidentiary hearing is not warranted when the defendant's allegations are too vague or speculative to warrant an evidentiary hearing.
We first address defendant's argument the PCR counsel rendered ineffective assistance for failing to produce a certification from trial counsel regarding any proffered plea offers. Even if we were to question PCR counsel's reason for failing to produce such a certification, we are not in a position to address this claim on appeal as it "involve[s] allegations and evidence that lie outside the... record." State v. Preciose, 129 N.J. 451, 460 (1992). Therefore, we cannot consider this issue based on the record before us. State v. Castagna, 197 N.J. 293, 316 (2006).
Regarding defendant's other claims, we note that his PCR petition was filed almost twenty years after his conviction.
Rule 3:22-12(a) provides:
A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to the rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.
The record is devoid of any demonstration of "excusable neglect" on defendant's part.
In the context of post-conviction relief, a court should only relax the bar of Rule 3:22-12 under exceptional circumstances. The court should consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an "injustice" sufficient to relax the time limits. Absent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay. As time passes, justice becomes more elusive and the necessity for preserving finality and certainty of judgments increases.
[State v. Afanador, 151 N.J. 41, 52 (1997).]
Defendant served two-thirds of his thirty-year parole ineligibility period before filing this PCR petition. He has presented no "exceptional circumstances" warranting relaxation of the rule's five-year time limit.
Based on the foregoing, we conclude the trial court properly denied defendant's PCR petition without affording him an evidentiary hearing.