March 31, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 94-10-01216-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 11, 2009
Before Judges Axelrad and Lihotz.
Defendant A.N.C. appeals from a December 11, 2007 Law Division order denying his third petition for post-conviction relief (PCR) without benefit of an evidentiary hearing. Defendant argues appellate counsel was ineffective and his sentence was illegal. The PCR judge concluded defendant's claims were procedurally barred and otherwise meritless. Following our review of the arguments presented on appeal, in light of the applicable law, we affirm.
Tried by a jury, defendant was convicted of four counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); three counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b); and one count of second-degree endangering the welfare of a minor, N.J.S.A. 2C:24-4(a). The victim was defendant's daughter who was age ten when the assaults began and age twelve when she reported them.
After merging one first-degree conviction, defendant was sentenced on the aggravated sexual assault convictions to three consecutive seventeen-year terms of imprisonment. The court imposed a seven-year term of imprisonment on each of the four second-degree convictions, to be served concurrently to each other and concurrently to the first-degree sentences given. In addition to mandatory fines and penalties, the court imposed all conditions of Megan's Law, N.J.S.A. 2C:7-1 to -11. Further, in the face of defendant's failure to cooperate with evaluative procedures, the trial court found defendant to be a repetitive and compulsive sexual offender, ordered him to serve his sentence at the Adult Diagnostic Treatment Center, and imposed community supervision for life, N.J.S.A. 2C:43-6.4.
This court affirmed defendant's conviction and sentence on direct appeal, State v. A.N.C., No. A-3595-96T2 (App. Div. Feb. 26, 1998). Certification was not sought. Defendant's two prior PCR petitions were denied, and the Law Division orders were affirmed on appeal. In defendant's third PCR petition, he argued appellate counsel was ineffective due to counsel's alleged failure to notify defendant when this court rendered its opinion affirming his conviction and sentence. Counsel's actions were suggested to have prevented defendant's request for certification and his pursuit of federal habeas corpus relief, both of which were time barred when defendant allegedly learned his appeal was denied.
After reviewing defendant's PCR petition, Judge Austin denied the petition, citing the five-year limitations period imposed by Rule 3:22-12 and defendant's failure to present facts evidencing excusable neglect or that the interest of justice demanded relaxation of the time bar. State v. Milne, 178 N.J. 486, 492 (2004). Moreover, defendant's assertion was found to be without merit based upon defense counsel's February 12, 1999 correspondence referencing prior discussions with defendant's family following receipt of this court's opinion on defendant's direct appeal.
Defendant limits his argument to challenge the court's exercised discretion not to conduct an evidentiary hearing to fully review the assertions presented in his PCR petition. Defendant asks the order be reversed and a hearing scheduled. We conclude defendant's arguments are without sufficient merit to warrant discussion in a written opinion. We present only the following brief comments. R. 2:11-3(e)(2).
"Although Rule 3:22-1 does not require evidentiary hearings to be held on post-conviction relief petitions, Rule 3:22-10 recognizes judicial discretion to conduct such hearings." State v. Preciose, 129 N.J. 451, 462 (1992). An evidentiary hearing is warranted "to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief." Ibid.
Despite learning of the denial of his appeal in February 1999, defendant does not explain the almost ten-year delay in filing the current request. Defendant's sweeping assertions of ineffective assistance and his general denial of constitutional rights are insufficient for relief and fail to elicit a basis necessitating an evidentiary hearing. State v. Odom, 113 N.J. Super. 186, 192 (App. Div. 1971).
We conclude defendant's petition does not demonstrate the reasonable likelihood of succeeding under the test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed. 2d 674, 698 (1984), and United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed. 2d 657 (1984), which the New Jersey Supreme Court adopted in State v. Fritz, 105 N.J. 42, 58 (1987). Defendant has failed to show the alleged deficiencies in counsel's representation, if proven, would have "a reasonable probability" to alter the result of the proceeding. Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698.
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