On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-02-0561.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 11, 2011 - Decided
Before Judges Carchman and Messano.
During the jury selection in this capital murder prosecution, defendant Roger Hoyte entered a plea of guilty to three counts of first-degree capital murder, N.J.S.A. 2C:11- 3a(1) and (2); three counts of first-degree carjacking, N.J.S.A.
2C:15-2; three counts of first-degree robbery, N.J.S.A. 2C:15-1, three counts of felony murder, N.J.S.A. 2C:11-3a(3); three counts of second-degree conspiracy, N.J.S.A. 2C:5-2; one count of third-degree burglary, N.J.S.A. 2C:18-2; one count of third- degree theft, N.J.S.A. 2C:20-3a; three counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and three counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. During the penalty phase of the trial, the jury was unable to reach agreement as to the penalty, and after appropriate mergers, defendant was sentenced on April 3, 1998, to an aggregate term of three consecutive life sentences, see N.J.S.A. 2C:11-3c(3)(c); N.J.S.A. 2C:11-3b, with a minimum of 90 years of parole ineligibility. Defendant appealed, and we affirmed. The Supreme Court denied certification. State v. Hoyte, 165 N.J. 488 (2000). Defendant filed a petition for post-conviction relief (PCR) on May 23, 2006. That application was denied, and this appeal followed.
The underlying prosecution arose out of the murder of three taxicab drivers in Newark. As we noted in our earlier opinion addressing the direct appeal:
Between October 20 and November 8, 1995, three Newark taxicab drivers were murdered. In each of the killings, the victim was shot execution style in the back of the head. One of the victims did not immediately expire. The perpetrator thus slit the victim's throat after attempting to break his neck.
[State v. Hoyte, No. A-5785-97T4 (App. Div. Mar. 31, 2000) (slip op. at 2).]
We went on to note that defendant confessed to the murders and implicated his co-defendants. Id. at 3. On appeal, he urged that he confessed because of promises made by the prosecutor, an assertion that both the trial judge and we rejected. In addition, he urged that the sentence was excessive and that, too, was rejected. Id. at 2, 4-6.
In his PCR, he claimed ineffective assistance of counsel, contending that he had been pressured into pleading guilty by his attorney. The judge determined that defendant's PCR was barred by Rule 3:22-12 (providing for a five-year limitation period on the filing of a PCR). She also concluded that defendant had received effective assistance of counsel.
On appeal, Defendant raises the following issues:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL ARISING OUT OF THE ENTRY OF GUILTY PLEAS, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL, THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION.
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-12.
We conclude that defendant's arguments are without merit.
Rule 3:22-12 imposes a five-year limitation period on the filing of a PCR. Defendant was sentenced on April 3, 1998, and the PCR was filed on May 23, 2006.*fn1 Defendant urges that he attempted to file a PCR in 2002, but for unexplained reasons, it was never filed. We do not deem such attempt to be "excusable neglect," State v. Murray, 162 N.J. 240, 245-46 (2000), State v. Afanador, 151 N.J. 41, 52 (1997), and the interests of justice here do not demand that we relax the ...