February 23, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DEMETRIUS YANCEY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-07-3078.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 4, 2009
Before Judges Stern and Lyons.
Defendant appeals from an order of March 15, 2007 denying his petition for post-conviction relief (PCR). He had been convicted of two counts of aggravated manslaughter and other crimes as a result of a negotiated guilty plea in 1999.
On this appeal defendant argues:
POINT I. THE LOWER COURT ERRED IN FINDING THAT THE PCR PETITION WAS TIME BARRED.
POINT II. THE TRIAL COURT ERRED IN FAILING TO GRANT AN EVIDENTIARY HEARING AS APPELLANT HAD DEMONSTRATED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT III. APPELLANT WAS ENTITLED TO POST-CONVICTION RELIEF BECAUSE OF THE IMPROPRIETIES OF THE SENTENCE.
We reject these contentions and agree with the PCR judge that defendant did not demonstrate "excusable neglect," R. 3:22-12, for the late filing of the petition in September 2006. Nor was there enough verified in the petition to warrant an evidentiary hearing. See State v. Cummings, 321 N.J. Super. 154 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Two persons were killed and six more (including four police officers) were injured while defendant was trying to elude the police in a stolen car. Defendant received a negotiated sentence resulting in concurrent sentences of thirty years imprisonment with fifteen years before parole eligibility. Defendant was a juvenile at the time of offense and these were his first offenses as an adult. Accordingly, it may be hard to find that the aggravating factors outweighed the mitigating to raise the former "presumptive" sentence with respect to each separate offense. However, the number of victims and the totality of offenses provided aggravating factors justifying imposition of the negotiated sentence. Therefore, we can fairly state that even had defendant been advised by counsel to file a direct appeal or had he appealed, the sentence would remain the same.*fn1 Moreover, the issue now presented is not one related to sentence legality, as opposed to an excessive sentence. See R. 3:22-2(c); State v. Flores, 228 N.J. Super. 586, 591-92 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989).
Motions for change or reduction of sentence are not in the "pipeline" within the meaning of State v. Natale, 184 N.J. 458 (2005), but in any event, both of defendant's Rule 3:21-10 motions were denied before Natale was decided.
Finally, under the standard in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed. 2d 203 (1985), there is no showing that defendant would not have pled guilty or would not have pled to this negotiated disposition if he were better represented by counsel.
The denial of PCR is affirmed substantially for the reasons stated by Judge Fullilove in his oral opinion of March 15, 2007, as supplemented herein.