On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 96-08-1436, 96-08-1438.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez and Newman.
Defendant Darryl Jennings appeals from the denial of a first petition for post-conviction relief (PCR), alleging that trial counsel rendered ineffective assistance. We affirm.
Following a jury trial, defendant was convicted of second- degree robbery, N.J.S.A. 2C:15-1. Then defendant was convicted, following another jury trial, of second-degree robbery, N.J.S.A. 2C:15-1. Defendant then entered a negotiated plea regarding additional charges: two counts of first-degree armed robbery, N.J.S.A. 2C:15-1; two counts of second-degree armed robbery, N.J.S.A. 2C:18-2. The State agreed to recommend thirty years with a fifteen-year parole disqualifier. This sentence would run consecutive to a sentence that defendant was already serving. The State agreed to dismiss all other charges. In April 2000, Judge DeStefano imposed the negotiated sentences. We affirmed the sentences on direct appeal. No. A-6472-99T4, certif. denied, 171 N.J. 41 (2002).
In May 2007, over seven years after the convictions, defendant filed a PCR petition, raising allegations of ineffective assistance of trial counsel due to "lack of application toward mitigation of defendant's sentence." Judge DeStefano determined that an evidentiary hearing was not required and denied the petition.
On appeal, defendant contends:
I. DEFENDANT'S MOTION FOR [PCR] SHOULD NOT BE PROCEDURALLY BARRED FROM CONSIDERATION ON THE MERITS.
II. SENTENCING COUNSEL'S LACK OF APPLICATION TOWARD MITIGATION OF DEFENDANT'S SENTENCE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL ENTITLING DEFENDANT TO [PCR].
III. DEFENDANT RECEIVED A DISPARATE SENTENCE AS COMPARED TO AN ANALAGOUS CONVICTION OF AN ADJACENT JURISDICTION THEREBY RENDERING HIS SENTENCE AS ILLEGAL FOR UNDERMINING FAIRNESS AND PUBLIC CONFIDENCE.
IV. DEFENDANT HAS PRESENTED PRIMA FACIE EVIDENCE ENTITLING HIM TO AN EVIDENTIARY HEARING.
We reject these contentions.
It is patently apparent that the PCR petition was time-barred. Although defendant argues that this appeal should not have been dismissed as time-barred, he makes no showing that the five-year time limitation set by Rule 3:22-12(a) should not apply. In short, nothing in the PCR petition sets forth sufficient facts to find "excusable neglect." Moreover, the sentence was challenged on appeal. Therefore, it is also barred on grounds that it was expressly adjudicated. R. 3:22-5. We also find no basis to conclude that trial counsel was ineffective. ...