On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Accusation No. 01-11-2018.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Simonelli.
Defendant John K. DeBenedictis appeals from the denial of his petition for post-conviction relief (PCR) filed over a year after the expiration of the five-year time period set forth in Rule 3:22-12(a). We affirm.
On August 20, 2001, a police officer from the Spring Lake Police Department stopped defendant's vehicle after observing defendant driving without a seatbelt and without a registration sticker on his license plate. A subsequent search of defendant's vehicle revealed a pipe containing a burnt residue, a pocket knife with a burnt residue on the blade, a clear baggie containing an orange substance, which defendant told the officer was opium he had purchased in Asbury Park, and a package of rolling papers.
Defendant was arrested and charged with one count of third-degree possession of a controlled dangerous substance (CDS) (opium), N.J.S.A. 2C:35-10a(1), and two counts of possession of drug paraphernalia, N.J.S.A. 2C:36-2. He was also charged with three motor vehicle offenses, including possession of CDS in a motor vehicle, N.J.S.A. 39:4-49.1, which carried a mandatory two-year driver's license suspension. It was subsequently determined that the suspected opium was oregano. However, laboratory tests confirmed that the substance in the baggie and the burnt residue on the pipe was marijuana.
Defendant voluntarily waived prosecution by indictment and was charged under Accusation No. 01-11-2018 with third-degree possession of CDS (opium), N.J.S.A. 2C:35-10a(1). The charge was later amended to third-degree conspiracy to possess CDS (opium), N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-10a(1). On November 5, 2001, defendant pled guilty to the amended charge. In exchange, the State agreed to recommend a two-year term of non-custodial probation, to dismiss the motor vehicle charge of possession of CDS in a motor vehicle, and to remand the remaining motor vehicle charges.*fn1
At the plea hearing, the trial judge explained the charges and the plea terms. Defendant acknowledged his understanding of the plea agreement, waived his right to a jury trial, and confirmed that no one forced him to plead guilty. He further acknowledged that the amended charge carried a statutory maximum five-year term of imprisonment, and that his plea to that charge obviated the imposition of a jail term, a $1000 D.E.D.R. penalty and the mandatory two-year suspension of his driving privileges.
Defendant also acknowledged signing the plea form and reviewing each question with his attorney. In the plea form he acknowledged committing the offense to which he pled guilty, that he understood the charges, and that he understood that by pleading guilty he would have a criminal record.
In establishing the factual basis for the plea, defendant indicated that he believed he had purchased opium, and that the seller was involved in the transaction. The judge accepted this factual basis and the plea, finding that defendant "knowingly and voluntarily entered the plea with full knowledge and understanding of the essential terms including the statutory maximum penalty, his right to a jury trial and his right to remain silent both of which he has waived voluntarily." The judge subsequently sentenced defendant in accordance with the plea agreement and imposed the appropriate assessment, penalty and fee.
In March 2008, defendant's employer discovered defendant's criminal conviction and terminated him. This prompted defendant to retain an attorney to examine the circumstances leading to his conviction. As a result of that examination, on August 13, 2008, over six years after entry of the judgment of conviction, defendant filed his PCR petition, claiming excusable neglect based on his ignorance of the five-year limitation period of Rule 3:22-12(a) and his ignorance of the collateral impact the plea would have on his family members due to his loss of employment. Defendant also claimed that he suffered a manifest injustice because the factual basis for his plea to third-degree conspiracy to possess CDS was legally deficient.*fn2
The PCR judge denied the petition, finding that defendant's ignorance of the law did not constitute excusable neglect, that the factual basis supported the plea, and that defendant failed to show an injustice. This appeal followed. On appeal, defendant raises the same contentions he raised below.
Rule 3:22-12(a) provides that no PCR petition shall be filed "more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." Our Supreme Court has instructed that in the context of post-conviction relief, a court should only relax the time-bar embodied in Rule 3:22-12 under exceptional circumstances. State v. Afanador, 151 N.J. 41, 52 (1997). "The court should consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's ...