On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 78-11-0923.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 29, 2010
Before Judges C.L. Miniman and LeWinn.
Appellant filed a pro se supplemental brief.
Defendant George Bratsenis appeals from the denial of his petition for post-conviction relief (PCR) in connection with his conviction on July 25, 1980, in Galloway Township Municipal Court, on one count of possession of a controlled dangerous substance, methaqualone, a high misdemeanor for which he was sentenced to a six-month suspended sentence, probation for one year, and a $250 fine. This conviction was subsequently used to impose an extended term of fifty years for unlawful possession of a weapon, robbery, and conspiracy in 1986. Defendant filed his PCR application on or about April 23, 2008. On November 18, 2008, Judge Bernard E. DeLury, Jr., denied defendant's PCR application. This appeal followed. Defendant raises the following issues for our consideration:
POINT ONE -- THE LOWER COURT SHOULD HAVE ORDERED A FULL EVIDENTIARY HEARING IN CONNECTION WITH THE DEFENDANT'S POST CONVICTION RELIEF PETITION BECAUSE (1) THE DEFENDANT PRESENTED EXCEPTIONAL CIRCUMSTANCES TO PERMIT RELIEF FROM THE FIVE YEAR LIMITATION OF R. 3:22-12 AND (2) THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF THE INEFFECTIVE ASSISTANCE OF PLEA/SENTENCING COUNSEL.
We affirm substantially for the reasons expressed by the PCR judge in his written opinion issued on November 18, 2008.
The findings and conclusions of the judge are supported by substantial, credible evidence in the record. State v. Locurto, 157 N.J. 463, 471 (1999).
Rule 3:22-12 provides in pertinent part that: no petition shall be filed pursuant to this rule more than 5 years after the date of entry pursuant to Rule 3:21-5 of the judgment of conviction that is being challenged unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true[,] enforcement of the time bar would result in a fundamental injustice.
Additionally, Rule 3:22-12(c) provides that "[t]hese time limitations shall not be relaxed, except as provided herein." Where a PCR petition is filed more than five years after entry of the judgment of conviction, it is barred under this rule unless the petition alleges facts constituting excusable neglect and a reasonable probability that enforcement of the time bar "would result in a fundamental injustice." R. 3:22- 12(a)(1). Nothing in defendant's PCR petition establishes excusable neglect, particularly in light of the fact that the extended-term sentence was imposed twenty-five years ago. We see no fundamental injustice that could result from denial of this very belated petition.