On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 83-05-0276.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 17, 2010
Before Judges Gilroy and Nugent.
Defendant appeals from the June 24, 2009 order that denied his petition for post-conviction relief (PCR). We affirm.
On May 12, 1983, a Salem County Grand Jury charged defendant with second-degree burglary, N.J.S.A. 2C:18-2 (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count two); and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count three). A jury convicted defendant on all counts. Prior to sentencing, defendant submitted to a psychological examination at the Avenel Adult Diagnostic and Treatment Center (ADTC), pursuant to the New Jersey Sex Offender Act, N.J.S.A. 2C:47-1 to -10. The examining psychiatrist opined in his December 5, 1983 report that defendant "fall[s] under the purview of the New Jersey Sex Offender Act, and as such, he should be committed to an institution so designated by Law."
On May 3, 1984, the court sentenced defendant to an extended term on his conviction on count three, pursuant to N.J.S.A. 2C:44-3a, to a life term of imprisonment with twenty-five years of parole ineligibility. The court sentenced defendant on his convictions on counts one and two to terms of ten years and five years of imprisonment, respectively, the sentences to run concurrent with each other and to the sentence imposed on count three.
On direct appeal defendant argued, among other things, that the trial court erred in failing to sentence him for special treatment at the ADTC on his conviction on count three. In an unpublished opinion, we affirmed the convictions and the terms of the sentences, except we modified the sentence imposed on count three, directing the trial court to re-sentence defendant to the ADTC, pending the special classification committee determining that defendant could no longer benefit from sex offender treatment at the ADTC. State v. Pryor, No. A-1554-84 (App. Div. November 19, 1986) (slip op. at 7), certif. denied, 107 N.J. 96 (1987). We further directed that in such case he should then be returned to the State prison system to complete his custodial term. Ibid.
In September 1990, defendant filed a pro se PCR petition challenging his sentence on count three. Defendant argued that his extended-term sentence was illegal because: his prior predicate convictions were Title 2A convictions; the extended term was unconstitutional as cruel and unusual punishment; the trial judge failed to consider certain mitigating sentencing factors; the extended-term sentence resulted from prosecutorial misconduct; and lastly, he was denied effective assistance of trial counsel because his attorney failed to raise the issues stated. We affirmed. State v. Pryor, No. A-3626-90 (App. Div. May 25, 1993) (slip op. at 9) certif. denied, 134 N.J. 483 (1993).
On September 9, 2008, defendant filed a second pro se PCR petition, seeking again to vacate his extended-term sentence on count three, contending that the sentence was illegal, and in the alternative, to vacate the ADTC provision of that sentence because the Appellate Division had improperly modified his sentence to the ADTC without remanding to the trial court for a Horne*fn1 hearing. On May 27, 2009, assigned counsel filed a supplementary brief. On June 19, 2009, Judge Forester rendered an oral decision without an evidentiary hearing, denying defendant's petition. The court entered a confirming order on June 24, 2009.
On appeal, defendant argues:
THE TRIAL COURT ERRED IN CONCLUDING THAT DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WAS TIME BARRED BECAUSE DEFENDANT'S FAILURE TO FILE HIS PETITION WITHIN FIVE YEARS OF HIS CONVICTION WAS DUE TO EXCUSABLE NEGLECT AND BECAUSE ...