July 15, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BRIAN WORTHY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 96-10-1091.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 3, 2009
Before Judges Rodríguez and Lyons.
Defendant Brian Worthy appeals from the denial of his first petition for post-conviction relief (PCR). We affirm.
In 1997 following a jury trial, defendant was convicted of second-degree eluding a law enforcement officer by failing to stop, N.J.S.A. 2C:29-2b. Judge Grasso found four of the aggravating factors listed in N.J.S.A. 2C:44-1a applicable, specifically (3), (6), (8) and (9), and no mitigating factors. The judge imposed a ten-year term with a thirty-nine-month period of parole ineligibility. Defendant appealed. We affirmed. A-2865-97T4 (App. Div. April 6, 1999), certif. denied, 161 N.J. 334 (1999).
Defendant filed a first PCR petition in January 2005, more than seven years after the conviction. The Law Division appointed PCR counsel. The PCR judge denied the petition and an evidentiary hearing.
On appeal, defendant contends:
THE MOTION FOR [PCR] SHOULD NOT HAVE BEEN DENIED AS TIME BARRED WITHOUT CONDUCTING AN EVIDENTIARY HEARING ON THE DEFENDANT'S SUBMISSION OF EXCUSABLE NEGLECT.
THE INTERESTS OF JUSTICE MANDATE A REMAND FOR A FULL EVIDENTIARY HEARING.
THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL AND [PCR] MOTION COUNSEL.
THE MOTION COURT ERRONEOUSLY DENIED DEFENDANT'S PCR MOTION ON THE GROUNDS THAT THE DEFENDANT'S CASE WAS NOT REVIEWABLE BECAUSE BLAKELY AND NATALE ONLY APPLIED TO CASES ON DIRECT APPEAL AT THE TIME OF THOSE DECISIONS.
Having carefully reviewed the record, we determine that all of these arguments are without merit and do not warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We merely add that defendant has not made a sufficient showing that the five-year time limitation set by Rule 3:22- 12(a) should be relaxed due to excusable neglect.
Moreover, defendant faulted appellate and PCR counsel for not having raised arguments pursuant to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004), and State v. Natale, 184 N.J. 458 (2005). However, defendant's argument fails.
Defendant's appeal was filed in early 1999, more than five years before Blakely was decided. Natale was decided even later. Appellate counsel cannot be faulted for not being prescient and anticipating changes in the law.
Lastly, we reject defendant's argument that the factor that the crime related to a police officer was double-counted. Not so. N.J.S.A. 2C:29-2b, of which defendant was convicted, provided that eluding a police officer is a second-degree crime if the flight or attempt to elude creates a risk of death or injury to any person. Here, the jury specifically found that defendant's actions created a risk to others besides the police.
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