June 3, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAMSEY WRIGHT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 95-03-0427.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 10, 2011
Before Judges Graves and Messano.
Defendant Ramsey Wright appeals from an order dated November 2, 2009, denying his petition for post-conviction relief (PCR). We affirm.
On May 16, 1995, defendant pled guilty to third-degree possession of cocaine in violation of N.J.S.A. 2C:35-10(a)(1).
In exchange for the plea, the State agreed to recommend a non-custodial probationary sentence. Defendant provided a factual basis for the plea and, when questioned by the court, testified as follows:
Q. Do you understand what you're charged with?
Q. Your lawyer says you want to plead guilty. Is that true?
Q. Have you discussed the charges and plea bargain with her?
Q. Has she explained everything to you?
Q. Has she answered your questions?
Q. Are you satisfied with her services?
Q. Sir, do you understand you do not have to plead guilty. You can plead not guilty and have a jury trial?
Q. Do you understand that at such time you are presumed innocent and the State has to prove that you are guilty beyond a reasonable doubt?
Q. Do you understand that at such a trial you have a right to be represented by your lawyer?
Q. To be confronted by the witnesses against you and to have your lawyer cross examine those witnesses?
Q. Do you understand that at such a trial you have a right to compel witnesses to appear for you?
Q. Do you understand you have a right to testify at trial, but you have an equal right to remain silent?
Q. Do you understand at such a trial if you remain silent the prosecutor cannot argue that your silence means you are guilty?
Q. Do you understand that at such a trial if you made any admission or confession I can have a hearing to see if those words could be used against you?
Q. Do you understand that at such a hearing the Judge would decide if you're statement was voluntary, if you had received your constitutional rights and if any of those rights were violated?
Q. Do you understand, sir, that by pleading guilty today you're giving up the rights I just described?
Q. Do you understand that by pleading guilty today you're admitting the truth of the charges?
Q. Have you understood everything I've said?
Q. Still want to plead guilty?
On July 27, 1995, defendant was sentenced to a three-year term of probation. However, probation was subsequently terminated, and defendant was sentenced to serve 270 days in jail after he pled guilty to violating the terms of probation.
Defendant did not file a direct appeal, but he filed a petition for PCR on December 8, 2008. In an amended petition dated August 20, 2009, defendant claimed that his plea should be vacated because his trial attorney "was ineffective in failing to explain the constitutional rights he was waiving when he pled guilty."
Following oral argument on November 2, 2009, the PCR court denied defendant's petition. In an oral decision, the court concluded that defendant's petition was time-barred because it was not filed within five years of defendant's judgment of conviction as required by Rule 3:22-12, and there were no specific facts to demonstrate that the delay in filing was due to defendant's excusable neglect. See State v. Mitchell, 126 N.J. 565, 576 (1992) (stating that "a court may disregard the five-year bar" if a defendant demonstrates excusable neglect).
The court also found there was no prima facie showing of ineffective assistance of counsel.
On appeal, defendant presents the following issues for our consideration:
DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL FOR HIS POST CONVICTION RELIEF PROCEEDINGS.
THE TRIAL JUDGE ERRED BY DENYING DEFENDANT'S CLAIMS AT THE POST CONVICTION RELIEF HEARING THAT HIS PLEA SHOULD BE WITHDRAWN.
DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD NOT BE BARRED.
Based on our review of the record and the applicable law, we conclude that these arguments are clearly without merit. R. 2:11-3(e)(2). We add only the following comments.
In the present matter, defendant's testimony at his plea hearing on May 16, 1995, confirms that he was satisfied with the legal services rendered by his trial attorney, and that the plea was entered voluntarily, "with an understanding of the nature of the charge and the consequences of the plea." R. 3:9-2.
Additionally, as the PCR court correctly concluded, defendant's petition was time-barred under Rule 3:22-12(a), and defendant failed to show that the time bar should be relaxed due to either "excusable neglect" or "exceptional circumstances." State v. Afanador, 151 N.J. 41, 52 (1997). Accordingly, an evidentiary hearing was not required because defendant failed to demonstrate a reasonable likelihood of success under the Strickland/Fritz*fn1 test. State v. Preciose, 129 N.J. 451, 463 (1992).
In addition, we conclude that defendant's new argument regarding the alleged ineffectiveness of PCR counsel is clearly without merit. The record confirms that PCR counsel's representation of defendant fully conformed with the requirements of State v. Rue, 175 N.J. 1, 13-19 (2002) and State v. Webster, 187 N.J. 254, 257-58 (2006).