May 26, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID SIMONS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 95-06-1561.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 22, 2009
Before Judges Cuff and Baxter.
Defendant David Simons appeals from the denial of his second petition for post-conviction relief (PCR). He is serving an aggregate term of life imprisonment with a thirty-two and one-half-year period of parole ineligibility following his 1996 conviction of felony murder, first degree robbery, second degree conspiracy to commit robbery, second degree aggravated assault, fourth degree aggravated assault, second degree possession of a weapon for an unlawful purpose, third degree unlawful possession of a weapon, and third degree terroristic threats. This court affirmed the conviction, State v. Simons, No. A-2328-96 (App. Div. April 23, 1999); the Supreme Court denied certification, 161 N.J. 333 (1999). We affirmed the denial of defendant's first petition for PCR, No. A-4105-00 (May 2, 2002); certification was denied, 174 N.J. 192 (2002).
On appeal, defendant raises the following arguments:
POINT ONE THE COURT ABUSED ITS DISCRETION AND COMMITTED ERROR IN FAILING TO FIND THAT DEFENDANT HAD BEEN DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10., BECAUSE TRIAL COUNSEL FAILED TO OBJECT TO THE DEFENDANT'S CONFESSION ON THE GROUNDS THAT IT 1) FAILED TO CONTAIN LANGUAGE THAT DEFENDANT MAY BE CHARGED AS AN ADULT, AND 2) CONTAINED A TWO PART QUESTION WITH ONLY ONE YES OR NO ANSWER POSSIBLE.
A. The Miranda warnings given to defendant did not inform him that he may be charged and prosecuted as an adult.
B. The Miranda Form read to Defendant combined the questions of if he understood his rights with the question of if he wanted to waive his rights, causing defendant to sign the waiver, without the desire to waive his rights.
C. The court abused its discretion and committed error in finding that the defendant's claims were procedurally barred pursuant to R. 3:22-4.
POINT TWO THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FAILING TO FIND THAT THE WAIVER OF DEFENDANT FROM THE FAMILY PART TO THE CRIMINAL PART WITHOUT HIS CONSENT, VIOLATED THE FIFTH AND SIXTH AMENDMENT'S DUE PROCESS CLAUSE AND THE SIXTH AMENDMENT RIGHT TO A TRIAL BY JURY. CUMULATIVE EFFECT OF THE ERRORS IN THE POINTS ABOVE DENIED PETITIONER HIS RIGHT TO A FAIR HEARING.
In his comprehensive written opinion, Judge Neustadter held that some but not all of defendant's contentions were time barred. R. 3:22-12(a). Judge Neustadter specifically addressed defendant's argument that the waiver of juvenile jurisdiction in this case violates the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63 147 L.Ed. 2d 435, 455 (2000).*fn1 The judge rejected this contention. In doing so, he noted that the issue had not been addressed in this State but other jurisdictions that had considered the issue had determined that Apprendi does not apply to juvenile waiver hearings. Judge Neustadter also addressed the merits of defendant's various claims that trial counsel was ineffective due to the constitutional dimension of this claim.
We affirm substantially for the reasons expressed by Judge Neustadter in his January 22, 2008 opinion. We offer the following comments.
Judge Neustadter correctly noted that this petition is barred by the lapse of time. Rule 3:22-12(a) requires a petition for PCR to be filed within five years of entry of the judgment of conviction. Judge Neustadter correctly observed that this petition "is way out of time."
A PCR petition may not be filed more than five years after the judgment or sentence attacked "unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." R. 3:22-12(a). Such a claim must be made in the petition and allege facts sufficient to support it. State v. Cann, 342 N.J. Super. 93, 101-02 (App. Div.), certif. denied, 170 N.J. 208 (2001). No such showing has been made here.
We have enforced this rule to bar review of untimely PCR petitions. See State v. Cummings, 321 N.J. Super. 154, 166-67 (App. Div.) (difficulty reading and writing and ignorance of right to seek PCR does not excuse late petition), certif. denied, 162 N.J. 199 (1999); State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div. 1998) (mistake of law does not amount to excusable neglect; petition filed beyond five years barred), aff'd as modified, 162 N.J. 240 (2000); State v. Dugan, 289 N.J. Super. 15, 22 (App. Div.) (finding same), certif. denied, 145 N.J. 373 (1996); State v. Miller, 277 N.J. Super. 122, 125, 129 (App. Div. 1994) (petition filed six and one-half years after conviction time barred), certif. denied, 142 N.J. 449 (1995); State v. Jenkins, 221 N.J. Super. 286, 293 (App. Div. 1987) (petition filed more than five years after judgment of conviction time barred), certif. denied, 113 N.J. 343 (1988), cert. denied, 488 U.S. 1032, 109 S.Ct. 843, 102 L.Ed. 2d 975 (1989). There has been no showing of excusable neglect.