September 19, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JUDSON PERKINS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-10-3099.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 20, 2010
Before Judges Fuentes and Ashrafi.
Defendant Judson Perkins appeals from the order of the trial court denying his post conviction relief (PCR) petition.
Defendant was tried before a jury from September 5 to September 14, 2001, and convicted of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2); two counts of second degree sexual assault by sexual contact with a child under the age of thirteen, N.J.S.A. 2C:14-2b; second degree sexual assault by vaginal penetration, N.J.S.A. 2C:14-2c(4); and second degree endangering the welfare of a child, N.J.S.A. 2C:24-4.*fn1
On May 9, 2002, the court sentenced defendant to an aggregate term of fifteen years with a seven-year period of parole ineligibility.
We affirmed defendant's conviction and sentence on direct appeal, State v. Perkins, No. A-5234-01, (App. Div. Dec. 11, 2003) (slip op. at 7).*fn2 On November 1, 2007, defendant filed a pro se PCR petition alleging he was denied a fair trial by the court admitting "unreliable scientific evidence," and ineffective assistance of counsel. Court-assigned counsel thereafter filed a supplemental legal memorandum in support of the petition.
The matter came for oral argument on August 28, 2008, before Judge Robert H. Gardner. After considering the evidence presented and the arguments of counsel, Judge Gardner found defendant's petition was time-barred under Rule 3:22-12 because it was filed more than five years after the date of sentence.
Judge Gardner did not find any grounds to relax the time restrictions. He also found defendant's argument concerning the inadmissibility of scientific evidence was barred under Rule 3:22-4 because these issues could have been raised on direct appeal. Notwithstanding these procedural impediments, Judge Gardner also rejected as without merit defendant's claims of ineffective assistance of counsel.
Defendant now appeals raising the following arguments.
THE PCR COURT ERRED IN DENYING A HEARING ON MR. PERKINS'S CLAIM THAT HIS TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OBJECT TO IMPROPER COMMENTS DURING THE PROSECUTOR'S OPENING AND CLOSING STATEMENTS.
THE PCR COURT ERRED IN DENYING MR. PERKINS A HEARING ON HIS CLAIM THAT APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY FAILING TO RAISE ON DIRECT APPEAL THAT THE EXPERT'S TESTIMONEY WAS ERRONEOUS.
MR. PERKINS'S PETITION FOR POST-CONVICTION RELIEF IS NOT TIME-BARRED BECAUSE HIS FAILURE TO FILE HIS PETITION WITHIN FIVE YEARS OF HIS CONVICTION WAS DUE TO EXCUSABLE NEGLECT, THERE WAS NO PREJUDICE TO THE STATE, AND BECAUSE THE INTERESTS OF JUSTICE WARRANT RELAXATION OF THE TIME BAR.
A. The Time Bar Should be Relaxed Because Defendant's Delay in Filing His PCR Petition Was Due to Excusable Neglect.
B. The Time Bar Should be Relaxed in the Interests of Justice.
MR. PERKINS'S CLAIM THAT HIS TRIAL ATTORNEY WAS INEFFECTIVE REGARDING THE DISMISSAL OF JUROR NUMBER SIX IS INCORPORATED IN THIS APPEAL UNDER STATE V. WEBSTER, 187 N.J. 254 (2006).
We reject these arguments and affirm substantially for the reasons expressed by Judge Gardner. Defendant's PCR petition is time-barred under Rule 3:22-12 and he has not asserted any grounds from which to find excusable neglect. Further, mere ignorance of the requirements of the law is not excusable neglect. State v. Mitchell, 126 N.J. 565, 575 (1992). The remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).