On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 99-02-0203.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2009
Before Judges Waugh and Newman.
Defendant Marc A. Jordan appeals from an order denying his fourth petition for post-conviction relief (PCR). We now affirm.
Defendant was tried on a multi-count superseding indictment No. 99-02-0203 returned in Monmouth County on February 2, 1999.
Tried by a jury, defendant was convicted of two counts of armed robbery (counts ten and twenty-five), two counts of kidnapping (counts thirteen and twenty-four), robbery (count fourteen), three counts of theft by extortion (counts eight, seventeen and twenty-six), possession of a handgun for unlawful purposes (count eleven), two counts of terroristic threats (counts fifteen and nineteen), two counts of criminal restraint, (counts seven and nine) and unlawful possession of a handgun without a permit (count twelve). Defendant was acquitted on four other counts (counts eighteen, twenty-three, twenty-seven, and twenty-eight).
All of these charges occurred in mid-1997 and included five victims. Defendant approached the victims at various locations in Monmouth County, usually a mall, to extort money or rob them by employing various ruses, including an oft-repeated one that the victim, along with others, was supposed to have beaten up a black friend of his, and defendant was dispatched to avenge these beatings. Defendant would then indicate to the victim that he did not believe the victim was involved but would have to be paid to protect the victim from harm. Variations of this essential scam were used and the facts are fully set forth in this court's opinion on the direct appeal. State v. Jordan, Docket No. A-2414-00T4 (App. Div. Nov. 18, 2002).
Defendant continued with intimidating tactics when money was not paid. After his arrest, he even sent letters to the victims, threatening harm to them and their families if they testified against him.
The trial court granted the State's motion for a life sentence under the three strikes law, N.J.S.A. 2C:43-7.1. On October 24, 2000, the trial judge sentenced defendant to life in prison without parole on count ten. Defendant was sentenced to twenty years imprisonment on count twenty-five, with ten years parole ineligibility; ten years imprisonment with five years parole ineligibility on each of counts eight, eleven, thirteen, fourteen, seventeen, twenty-four and twenty-six; five years imprisonment with two and one-half years parole ineligibility on counts seven, nine, twelve, fifteen and nineteen. All of these terms were made to run concurrent to each other. Pursuant to N.J.S.A. 2C:44-5h, the trial judge ordered defendant to serve these aggregated sentences consecutive to the terms of imprisonment defendant was already serving.
Defendant's conviction was upheld by this court. State v. Jordan, supra. The Supreme Court denied certification. State v. Jordan, 175 N.J. 549 (2003).
Defendant's first petition for post-conviction relief was denied on June 11, 2004. His second petition for post- conviction relief was denied on June 3, 2005. Defendant's third petition for post-conviction relief was denied on March 16, 2007. All of these petitions were denied by the trial judge, Judge Del Bueno Cleary. Defendant has only included the orders of that trial court. He has not provided the "date and nature of the claim . . . and concerning any appeal therefrom, together with copies of opinions therein, trial and appellate. . . ." R. 3:22-8. His verified petition should have included this additional history. This is particularly significant in determining whether defendant is raising grounds that were expressly adjudicated in a prior PCR proceeding. R. 3:22-6. This omission from the PCR petition could constitute a ground for dismissal of the petition.
Defendant filed a fourth petition on January 4, 2008. That petition was denied by Judge Neafsey on January 17, 2008. The basis for the denial was Rule 3:22-12(a). Rule 3:22-12(a) provides that no petition, other than one for an illegal sentence, shall be filed more than five years after rendition of the judgment or sentence sought to be challenged, unless facts showing that delay beyond said time was due to defendant's excusable neglect. That Rule provides that the petition may be denied when it is filed more than five years beyond the date of the sentence on October 24, 2000.
Defendant does not initially attempt to show excusable neglect, but contends that the fourth petition was really his second petition which allegedly was filed on October 20, 2005, four days before the five year time bar would have run. Defendant claims that he filed it with the court and submits a certified mail, return receipt which does not show any signature on it, whether it be for lack of legibility or it was never signed. There were no proofs indicating that Judge Del Bueno Cleary ever received the papers. Nor ...