July 26, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LEESHOHN BROWN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-02-0367.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 11, 2011
Before Judges Fuentes and Newman.
Defendant Leeshohn Brown appeals from the order of the trial court denying his post-conviction relief (PCR) petition.
On February 26, 2001, a jury convicted defendant of first degree armed robbery, N.J.S.A. 2C:15-1, second degree aggravated assault, N.J.S.A. 2C:12-1b, second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, and third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b.*fn1
On March 30, 2001, the court sentenced defendant to an aggregate term of twenty years, with an eighty-five percent period of parole ineligibility and five years of parole supervision, both pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On direct appeal, we affirmed defendant's conviction and remanded for the court to reconsider the Violent Crimes Compensation Board penalty and the merger of certain convictions, State v. Brown, Docket No. A-0926-02 (App. Div. February 24, 2005), certif. denied, 183 N.J. 589 (2005). In lieu of stating the facts underpinning defendant's conviction, we incorporate by reference the factual recitation reflected in our unpublished opinion affirming defendant's conviction. Id., slip op. at 2-4.
On May 23, 2006,*fn2 defendant filed this PCR petition alleging ineffective assistance of counsel. The State argued defendant's petition was time-barred under Rule 3:22-12(a)(1) because it was filed more than five years after defendant was sentenced, and defendant had not shown any grounds establishing excusable neglect for the delay. By order dated April 7, 2008, supported by a memorandum of opinion, Judge Michael J. Nelson denied defendant's petition, addressing the merits of the arguments made by defendant in support of the relief requested.
Defendant now appeals raising the following argument:
DEFENSE COUNSEL'S FAILURE TO CROSS EXAMINE AND DEMAND ADDITIONAL DISCOVERY OF THE SOLE EYEWITNESS CONCERNING A CRITICAL EVENT, WHICH WAS ADMITTED TO HAVE OCCURRED BY BOTH THE WITNESS AND THE STATE, WAS NOT TRIAL STRATEGY AND DENIED DEFENDANT A FAIR TRIAL UNDER STATE AND FEDERAL CONSTITUTIONAL PROTECTIONS. THE FAILURE CONTINUED THROUGH DIRECT APPEAL AND PCR.
We affirm the trial court's order because defendant's PCR petition was filed more than five years after the date of sentence and defendant has not established any grounds for relaxing the time restrictions under Rule 3:22-12(a)(1). Absent this procedural impediment, we reject defendant's argument and affirm substantially for the reasons expressed by Judge Nelson in his memorandum of opinion.