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State v. Milne

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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