On appeal from Superior Court of New Jersey, Law Division, Essex County, No. I-92-01-0422.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2009
Before Judges Wefing and Grall.
Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm.
A jury convicted defendant in 1992 of one count each of murder, N.J.S.A. 2C:11-3a(1),(2); attempted murder, N.J.S.A. 2C:5-1; unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. The trial court sentenced defendant to thirty years in prison for murder, with a thirty-year period of parole ineligibility, and a consecutive eighteen years for attempted murder, with a seven-year period of parole ineligibility. It also sentenced defendant to a concurrent five years for unlawful possession of a weapon and merged his conviction for possession of a weapon for an unlawful purpose into his conviction for murder. Defendant appealed his convictions and sentence, and we affirmed. State v. Kirkland, No. A-748-92T4 (App. Div. Dec. 9, 1994). Defendant petitioned the Supreme Court for certification, but his petition was denied. State v. Kirkland, 139 N.J. 442 (1995).
In 2001 defendant began the process of filing a petition for post-conviction relief. It was not until 2003 that an order was signed directing that counsel be assigned to represent defendant in post-conviction proceedings, and it was not until 2006 that counsel prepared an amended verified petition. Oral argument was finally held in April 2008. After that argument, the trial court denied defendant's petition, and this appeal followed.
On appeal, defendant raises the following contention:
The Court should reverse the denial of defendant's petition for post-conviction relief.
1. Defendant's Petition is not barred
2. Failing to request a passion/provocation charge at trial constituted ineffective assistance of counsel Rule 3:22-12 provides that a petition for post-conviction relief must be filed within five years of a defendant being sentenced "unless [the petition] alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." This five-year period begins to run from the date the judgment of conviction is entered, which in defendant's case was July 27, 1992. Prior to September 2009, this five-year period could be relaxed pursuant to Rule 1:1-2. The Court Rules were amended in September 2009 to preclude a relaxation of this five-year bar. R. 1:3-4(c). Defendant, however, began to seek post-conviction relief before this rule change. It would, in our judgment, be fundamentally unfair to apply this change to defendant, particularly in light of the extraordinary length of time it took to have his petition heard. We are satisfied that the trial court correctly determined that the merits of defendant's petition should be reached.
Defendant presents one claim against his trial attorney, that he was ineffective for not requesting that the trial court give the jury a charge on passion/provocation manslaughter. We disagree.
A defendant who claims that he did not receive the effective assistance of counsel must establish two elements: that his attorney's performance was "deficient" and that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984). There is, moreover, a presumption that the conduct of defense counsel "falls within the wide range of reasonable professional assistance." Strickland, supra, 466 U.S. at 689, 104 ...