On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 00-04-0689.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 26, 2011 - Decided: Before Judges Cuff and Sapp-Peterson.
Defendant Wayne A. Davis is serving a seventy-year term of imprisonment with a twenty-five year period of parole ineligibility following his conviction of armed robbery of a woman at a bus stop in the early morning hours in Freehold. Defendant appeals from an order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
On appeal, defendant raises the following arguments:
POINT I -THE COURT ERRED IN FAILING TO APPLY
THE "INJUSTICE" CRITERIA OF R. 1:1-2 TO RELAX THE PROCEDURAL 5 YEAR TIME BAR BECAUSE THE DEFENDANT'S PETITION FOR CERTIFICATION ON DIRECT APPEAL WAS NOT DENIED IN ITS ENTIRETY BY THE SUPREME COURT UNTIL NOVEMBER 17, 2007. (RAISED IN PART BELOW).
POINT II -THE COURT ERRED IN DENYING POST- CONVICTION RELIEF WITHOUT FIRST CONDUCTING A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S FAILURE TO PRESENT EXPERT TESTIMONY AT THE PRETRIAL MIRANDA HEARING TO SHOW HOW THE ALCOHOL AND COCAINE INGESTED BY THE DEFENDANT RENDERED HIM UNABLE TO FULLY COMPREHEND THE CONSEQUENCES OF HIS WAIVER RESULTED IN A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER BOTH PRONGS OF THE STRICKLAND/FRITZ TEST.
POINT III -THE COURT'S RULING DENYING POST-
CONVICTION RELIEF VIOLATED THE DEFENDANT'S FEDERAL CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE [OF] COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE DEFENDANT'S STATE CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY ART. I., PAR. 10, OF THE NEW JERSEY CONSTITUTION.
POINT IV -DEFENDANT REASSERTS ALL OTHER ISSUES
RAISED IN SUPPORT OF POST-CONVICTION RELIEF.
Defendant filed his petition for PCR on August 13, 2007, five years and nine months after entry of the judgment of conviction. Judge Mellaci held that Rule 3:22-12 barred the petition. The judge found defendant could not establish excusable neglect because defendant admitted he was not aware of the PCR procedure.
The five-year limitation period should be relaxed "only under exceptional circumstances." State v. Mitchell, 126 N.J. 565, 580 (1992). A petitioner who files a late PCR petition must do "more than simply provid[e] a plausible explanation" for his failure to meet the five-year limitation. State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). Rather, defendant must "articulate facts that demonstrate a serious question about his or her guilt or the ...