January 3, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY LEAHEY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 99-06-0337.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 29, 2010
Before Judges Lisa and Alvarez.
Defendant Anthony Leahey appeals the May 26, 2009 denial of his second petition for post-conviction relief (PCR). For the reasons that follow, we affirm.
Defendant entered a guilty plea on August 10, 2000, to first-degree murder and weapons offenses in exchange for the State's sentencing recommendation - the minimum term for first- degree murder - thirty years imprisonment, thirty years to be served without parole. N.J.S.A. 2C:11-3(b)(1). The agreement required defendant to testify against his co-defendant, who at trial was convicted of the lesser offense of reckless manslaughter, and who received a nine-year sentence subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant appealed his sentence, and by order dated June 5, 2002, an excessive sentencing panel of this court affirmed. Thereafter, defendant filed a PCR petition, which was denied. His appeal of that decision was denied on March 13, 2006. State v. Leahey, No. A-2444-04 (App. Div. Mar. 13, 2006). The Supreme Court denied certification on July 6, 2006. State v. Lealey, 188 N.J. 218 (2006).*fn1
On this appeal of his second PCR petition, defendant makes the following arguments:
THE CIRCUMSTANCES SURROUNDING THE ARREST WARRANT AND THE SEQUENCE OF EVENTS RAISE SERIOUS DOUBTS AS TO ITS VALIDITY POINT TWO: DEFENDANT IS NOT PROCEDURALLY BARRED FROM RAISING THE ISSUES ON HIS SECOND POST-CONVICTION RELIEF APPLICATION
THE TRIAL COURT ERRED BY DENYING DEFENDANT'S SECOND POST-CONVICTION RELIEF APPLICATION SINCE THE CIRCUMSTANCES SURROUNDING THE ARREST WARRANT AND THE SEQUENCE OF EVENTS RAISED SERIOUS DOUBTS AS TO ITS VALIDITY WHICH SHOULD HAVE BEEN PURSUED BY PRIOR COUNSEL
Judge Coleman sentenced defendant on August 24, 2001; he also presided over both PCR applications. He concluded on this petition that defendant had made no showing of excusable neglect which would warrant relief from the five-year time bar found in Rule 3:22-12. Defendant's five years from sentence expired on August 24, 2006; this application was filed after June 1, 2007.*fn2
We agree with the motion judge that defendant has not made the requisite showing - indeed, no excusable neglect is even alleged. The five-year time bar is relaxed only where excusable neglect is established, and the petition itself must allege the requisite facts. State v. Mitchell, 126 N.J. 565, 576-77 (1992). Defendant does not explain his reasons for delay in any submissions. Moreover, in this case there is no injustice asserted which would warrant relaxation of the rule. See State v. Milne, 178 N.J. 486, 492 (2004). We therefore decline to reach defendant's appeal issues on the merits except with the briefest of comments.
Defendant contends the circumstances surrounding the issuance of his arrest warrant in Florida were fatally flawed. But challenges to the arrest were made both on defendant's prior motion to withdraw his guilty plea as well as his prior PCR. In the first PCR decision, in fact, Judge Coleman said that defendant also argues that the defense attorney was ineffective because he did[ not] challenge the legality of his arrest. Def[endant] argues that the [a]ffidavit of [p]robable
[c]ause prepared by Lieutenant Diana for the purpose of obtaining the arrest was replete with errors, omissions, and, therefore, law enforcement did not have probable cause needed to perfect the arrest.
In addition to the five-year time bar, defendant is clearly precluded from now advancing arrest-related theories as a basis for ineffective assistance of counsel claims. See R. 3:22-3 and R. 3:22-5. These issues should have long since been raised and appealed, or were previously addressed. Ibid. For the reasons stated by Judge Coleman, we affirm.