On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 88-01-0010.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Parrillo.
On March 15, 1988, defendant Shawn K. Wright entered a guilty plea to third-degree burglary, N.J.S.A. 2C:18-2; fourth-degree theft, N.J.S.A. 2C:20-3; and second-degree robbery, N.J.S.A. 2C:15-1.*fn1 Defendant was thereafter sentenced on the robbery offense to a prison term of seven years with one-third of the time to be served without parole eligibility. The sentence was to run concurrent to the sentences imposed on the other offenses as well as a parole violation. No appeal was taken from the sentence. According to the State, defendant has served the sentence, and defendant is now incarcerated on other, unrelated federal offenses.
In August 2007, defendant filed a petition for post conviction relief (PCR). He alleged that he was arrested in November 1987 on the burglary and theft charges and remained in custody until April 1988. He further notes that the robbery complaint and warrant were issued on December 1, 1987, with a court appearance required on December 1987. He was indicted on all charges on January 6, 1988, entered a plea in February 1988, entered a guilty plea on March 15 and was sentenced in April 1988. His substantive claim is that he never entered an original plea on the robbery offense, and counsel was ineffective in failing "to provide the defendant with the opportunity to voluntarily enter a plea to the robbery offense."
The motion judge denied the relief as time barred pursuant to Rule 3:22-12.*fn2 We agree and affirm.
Defendant does not rely on the excusable neglect exception contained in Rule 3:22-12, but asserts that a fundamental injustice would prevail unless relief from the five-year time limit was granted. State v. DiFrisco, 187 N.J. 156, 167-68 (2006); R. 3:22-12; R. 1:1-2. To determine whether an alleged injustice is sufficient to overcome the five-year time limit in Rule 3:22-12(a), we must "consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim." DiFrisco, supra, 187 N.J. at 168. "Absent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay. As time passes, justice becomes more elusive and the necessity for preserving finality and certainty of judgments increases." State v. Afanador, 151 N.J. 41, 52 (1997). We may "relax Rule 3:22-12's bar only under exceptional circumstances[,]" State v. Mitchell, 126 N.J. 565, 580 (1992), and the defendant must supply "facts that demonstrate a serious question about his guilt[.]" State v. Cummings, 321 N.J. Super. 154, 168 (App. Div.), certif. denied, 162 N.J. 199 (1999).
The time-bar provisions serve a salutary purpose. While insuring finality, the Rule further reflects negatives associated with undue delay. As the Court has observed, "[a]chieving 'justice' years after the fact may be more an illusory temptation than a plausibly attainable goal when memories have dimmed, witnesses have died or disappeared, and evidence is lost or unattainable." Mitchell, supra, 126 N.J. at 575.
The focus of defendant's complaint is that he was not aware of the robbery charge until the entry of a plea to the unrelated burglary and theft. While he correctly cites the appropriate rules addressing the necessity for arraignment, Rule 3:4-2, we note that while we do not have a transcript of the plea, we do have the benefit of the plea form, which provides a signed form advising defendant of the nature of the plea and the recommended sentence to be imposed. Cf. State v. D.D.M., 140 N.J. 83, 95-96 (1995) (noting that defendant's PCR claim, that his prison sentence violated his understanding of the plea agreement, was contradicted, in part, by the written plea agreement); State v. Williams, 342 N.J. Super. 83, 91-92 (App. Div.) (observing that defendant was not misinformed as to the consequences of his plea, where the "clear language" of the plea form and a colloquy about the form "constituted an adequate inquiry by the court"), certif. denied, 170 N.J. 207 (2001). Even defendant does not assert that he misunderstood the provisions of his plea agreement.
Unfortunately, on this appeal, the record is incomplete, as the relevant transcript of the initial plea has been lost, and the trial judge has retired. Moreover, no credible explanation is set forth as to why the PCR was filed 19 years after the sentence and fourteen years after the time-bar established by Rule 3:22-12. We have been presented with a sparse record as transcripts have been lost, and only the indictment, plea form and sentencing transcript are available. This abbreviated record validates the Court's wisdom in imposing a five-year bar on PCR applications especially where, as here, the underlying factual predicate for the PCR, the lack of an arraignment, was known both at the time of the plea and for the 19 years thereafter. During the ensuing 19 years, defendant has received the benefit of his plea agreement, served his sentence, and we perceive of no reason why we should intervene. We find no basis for invoking a doctrine of fundamental injustice when none is apparent on the facts.