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State v. Milne

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 29, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SHAWN MILNE, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. FJ-2669-85B/Indictment No. 86-07-0526.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 31, 2009

Before Judges Wefing and Yannotti.

Defendant Shawn Milne appeals from an order entered by the Law Division on June 5, 2008, denying his petition for post-conviction relief (PCR). We affirm.

On May 8, 1985, M.R. filed a complaint alleging that defendant assaulted her son by shooting him in the leg with a BB gun. At the time of the alleged offense, defendant was fourteen years old. The alleged victim was fifteen years of age. On June 5, 1985, defendant appeared before a Family Part judge with his mother. He was not represented by an attorney. Defendant pled guilty to the charge. The court accepted the plea and decided to continue the matter for nine months.

The court told defendant to "[s]tay out of trouble and [the matter] will be dismissed at the end of the nine month period." The court entered an order dated June 5, 1985, which stated that the matter had been continued for nine months and "[i]f satisfactory adjustment is made, it may be dismissed at that time."

On November 14, 1985, defendant was charged with murder and aggravated sexual assault. Defendant was fifteen years old at the time the offenses were committed. In December 1985, following a continuance review of the charges involving the assault, the matter was adjourned. Another continuance review took place in January 1986 and the matter was again adjourned. It appears that the assault charge was never dismissed or formally adjudicated.

In 1987, defendant was tried as an adult and convicted of murder and aggravated sexual assault. The trial court imposed an aggregate sentence of fifty years of incarceration, with a forty-year period of parole ineligibility. Defendant appealed.

We affirmed defendant's convictions but modified the sentence to eliminate the ten-year period of parole ineligibility that the trial court had imposed for the aggravated sexual assault. State v. Milne, No. A-38-87 (App. Div. Oct. 13, 1989). In addressing defendant's challenge to his sentence, we noted that, in sentencing defendant, the trial court found as a mitigating factor "the fact that defendant did not have a prior history of delinquency[.]" Id. at 25.

On February 29, 2008, defendant filed a petition for PCR, seeking relief with regard to the 1985 plea to the assault charge and what defendant said was a "juvenile delinquency adjudication." Defendant argued, among other things, that the "adjudication was uncounseled" and unconstitutional. Defendant claimed that the "uncounseled" plea left defendant with an "erroneous" judgment of conviction which was a "fundamental injustice."

The PCR court filed a written opinion dated June 5, 2008, in which the court concluded that the petition was barred by Rule 3:22-12(a), which provides that a petition for PCR may not be filed more than five years after the entry of the judgment of conviction or sentence "unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." The court determined that defendant had not established sufficient grounds to warrant relaxation of the time bar. The court entered an order dated June 5, 2008, memorializing its decision. This appeal followed.

In his appeal, defendant raises the following issues for our consideration:

POINT ONE

MILNE A [FOURTEEN]-YEAR OLD MINOR AT THE TIME OF HIS OFFENSE HAD A FUNDAMENTAL RIGHT TO BE PROTECTED BY THE FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION ABSENT THE PRESENCE OF COUNSEL TO PREPARE HIM FOR THE ACTUAL PLEA OF GUILTY AND THE PCR COURT IN DENYING THE PETITION SHOULD NOT HAVE DENIED THE ILLEGAL SENTENCE ASPECTS OF APPELLANT'S PETITION FOR POST-CONVICTION [RELIEF]

POINT TWO

MILNE'S FIFTH AMENDMENT RIGHT TO NOT BEAR WITNESS AGAINST HIMSELF ON A PLEA BARGAIN FROM JUNE 5, 1985 AND THE ORDER DENYING THE PCR AGAINST [RULE] 3:22-12(a) (ILLEGAL SENTENCE) STANDS TO VIOLATE HIS INALIENABLE RIGHTS

POINT THREE

THE LOWER COURT ERRED IN DENYING MILNE'S SECOND POINT: THE PLEA BARGAIN IS ILLEGAL DUE TO THE PLEA COURT'S FAILURE TO INFORM HIM OF THE RIGHT TO COUNSEL

POINT FOUR

THE PCR COURT ERRONEOUSLY CONSIDERED THE STATE'S [PRIVILEGE] TO BE FREE FROM THE HARDSHIP OF TRYING A TWENTY-THREE YEAR OLD DELINQUENCY CASE AND ILLEGAL ADJUDICATION [AND THE] EMPHASIS ON FINALITY DOES NOT OUTWEIGH MILNE'S ENTITLEMENT TO A CONSTITUTIONALLY SOUND AND FAIR PROCEEDING

POINT FIVE

THE [CUMULATIVE] ERRORS [REQUIRE] AN EVIDENTIARY HEARING

We are convinced from our review of the record that the PCR court correctly ruled that defendant's petition was time-barred. We therefore affirm substantially for the reasons stated by the PCR court in its written opinion dated June 5, 2008. R. 2:11-3(e)(2). We add the following.

The five-year time bar under Rule 3:22-12(a) "is not absolute." State v. Milne, 178 N.J. 486, 492 (2004). "'[A] court may relax the time bar if the defendant alleges facts demonstrating that the delay was due to the defendant's excusable neglect or if the "interests of justice" demand it.'" Ibid. (quoting State v. Goodwin, 173 N.J. 583, 594 (2002)). In determining whether to relax the time bar, a 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.'" Ibid. (quoting State v. Afanador, 151 N.J. 41, 52 (1997)). Furthermore, "'[a]bsent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay.'" Ibid. (quoting Afanador, supra, 151 N.J. at 52).

Here, defendant has not established that his failure to file a timely PCR petition concerning his 1985 plea was due to "excusable neglect." Defendant also has not shown that relaxation of the time bar in Rule 3:22-12(a) is necessary to address a serious injustice.

It appears that, as a result of his being charged for murder and aggravated sexual assault, there was never a formal adjudication on the charge of assault, to which defendant pled guilty on June 5, 1985. Moreover, it appears that defendant has never suffered any adverse consequences as a result of that plea. Indeed, as we stated previously, when defendant was sentenced for his convictions of murder and aggravated sexual assault, the trial court stated that he had no prior record of any juvenile adjudication.

Defendant asserts, however, that his 1985 guilty plea has been used in his psychological evaluations, but defendant does not explain how the plea affected the results of those evaluations. Defendant also asserts that the plea was mentioned in his pre-sentence report but, as we have explained, the plea did not have an effect on the sentences imposed by the court when defendant was convicted of murder and aggravated sexual assault.

Defendant also says that the plea may be relied upon by the Parole Board in determining whether he should be paroled or in establishing a future parole eligibility date. The five-year time bar established by Rule 3:22-12(a) cannot, however, be relaxed based on speculation as to what the Parole Board may do in ruling on an application by defendant for parole.

In view of our decision that the trial court correctly found that defendant's PCR petition was barred by Rule 3:22-12(a), we need not address defendant's other arguments.

Affirmed.

20090429

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