On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 91-08-2019.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 20, 2009
Before Judges R. B. Coleman and Simonelli.
Defendant Stanley White appeals an order dated March 30, 2007, denying his petition for post-conviction relief (PCR). We affirm.
On February 2, 1994, at the conclusion of the trial that commenced on January 25, 1994, a Camden County jury found defendant guilty of kidnapping, N.J.S.A. 2C:13-1(b); four counts of sexual assault, N.J.S.A. 2C:14-2(b); and endangering the welfare of a child, N.J.S.A. 2C:24-4(a). He was found not guilty of two counts of first-degree attempted aggravated sexual assault and possession of a weapon for an unlawful purpose. At the sentencing hearing on December 9, 1994, the court imposed a term of life imprisonment with twenty-five years of parole ineligibility on the kidnapping count; all other sentences were to be served concurrently with each other and with the sentence imposed for kidnapping.
Defendant appealed and his conviction and sentence were affirmed by an unpublished opinion of this court issued on May 18, 1998. A brief recitation of the underlying facts were presented in that opinion and need not be repeated herein.
Significantly, defendant relied upon an alibi defense. In addition to his own testimony, defendant relied upon the testimony of his girlfriend, Ramona Kemp, and his neighbor, Joseph Lytle. Kemp testified that on the Friday evening when the subject incident allegedly occurred, defendant was home with her. She recalled the date because it was her brother's birthday, and she recalled defendant had been arrested on Sunday. Lytle testified that on April 6, 1991, he was baby-sitting his sister's children. As he recalled, it was a Friday with a lot of activity on nearby Mt. Ephraim Avenue. Lytle said that he came out onto his porch around 6:00 p.m. and spoke to defendant. Lytle remained outside until 8:30 p.m., but defendant went inside after a while and did not return.
Defendant testified that he stayed home on April 6, 1991, working around the home and playing with his children. Sometime between 5:00 p.m. and 8:30 p.m., he went out to the porch where he saw his neighbor Lytle. Defendant asserted that he did not leave the house, and he denied attacking the victim. On cross-examination, defendant stated that the events he had described happened on a Friday night. He could not recall the dates, but was sure he was arrested on a Sunday. At this point, the prosecutor asked the judge to take judicial notice that in 1991 April 5 was a Friday, April 6 was a Saturday, and April 7 was a Sunday.
During his summation to the jury, defense counsel acknowledged that the witnesses gave an alibi defense for Friday evening while the attack occurred on Saturday. Nevertheless, counsel argued that defendant was believable and that he had not changed his story after this error was revealed.
In considering defendant's argument on the direct appeal that he had been denied effective assistance of counsel, the reviewing panel concluded that the claim was premature and should await a post-conviction relief application at which time a more complete and focused record could be developed. The panel specifically noted that "[w]hether defendant had an alibi for the date of the alleged incident or could have offered evidence concerning his whereabouts on Saturday, April 6, cannot be established on this record."*fn1
The decision affirming defendant's conviction and sentence was filed on May 18, 1998. On December 5, 2002, almost eight years after the December 16, 1994 judgment of conviction was entered and four and a half years following our decision affirming the conviction, defendant filed his petition for PCR. That petition was denied without the appointment of counsel on February 10, 2003, and on March 3, 2003, defendant filed a pro se appeal from the denial of his PCR petition. On May 14, 2003, defendant's motion to proceed as an indigent and for assignment of counsel was granted, and on August 21, 2003, the order of February 10, 2003, was reversed and remanded so that defendant could proceed with counsel. Defendant's appointed counsel filed an amended petition for PCR. That petition was denied by an order dated March 30, 2007, and this appeal ensued.
Defendant raises the following issues on appeal:
POINT I: DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD NOT BE TIME BARRED BECAUSE DEFENDANT'S DELAY IN FILING WAS DUE TO EXCUSABLE NEGLECT AND THE INTERESTS OF JUSTICE REQUIRE IT BE HEARD.
POINT II: DEFENDANT IS ENTITLED TO POST CONVICTION RELIEF BECAUSE HIS TRIAL ATTORNEY FAILED TO ADEQUATELY INVESTIGATE THE FACTS OF THE CASE AND FOR HAVING PREPARED ALL ALIBI WITNESSES FOR A DAY OTHER THAN THE DAY OF THE ALLEGED CRIME.
POINT III: DEFENDANT HAS SET FORTH A PRIMA FACIE CASE WHICH MANDATES REMAND FOR AN EVIDENTIARY HEARING.
Defendant claims that he presented sufficient evidence to overcome the five-year time bar to PCR pursuant to Rule 3:22-12, which provides:
No other petition shall be filed pursuant to this 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 delay.
Defendant contends that he was unaware of the PCR process or the time-bar until after his direct appeal had concluded, and therefore, the time bar should not have commenced until that time of his discovery. The law on this point requires a different result.
The five-year limitation in Rule 3:22-12 commences upon the actual entry of the judgment of conviction and is not stayed nor tolled by other review proceedings. State v. Dugan, 289 N.J. Super. 15, 19 (App. Div.), certif. denied, 145 N.J. 373 (1996). The entry date of the initial judgment of conviction controls even where subsequent sentencing proceedings occur. Ibid. Where post-conviction relief petitions are concerned, the time-bar embodied in Rule 3:22-12 will only be relaxed in exceptional circumstances. State v. Afanador, 151 N.J. 41, 52 (1997) (citing State v. Mitchell, 126 N.J. 565, 580 (1992)). In such circumstances, the three factors a court must consider prior to relaxing the rule is "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." Id. ...