On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 98-05-0953.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 29, 2011
Before Judges Alvarez and Nugent.
Defendant Martin Carluccio appeals from the June 19, 2009 denial of his application for post-conviction relief (PCR). For the reasons that follow, we affirm.
On October 2, 1998, defendant was sentenced, pursuant to a negotiated plea agreement, on a third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2), to a five-year probationary term with conditions. In establishing the factual basis for the guilty plea, defendant admitted that, while using a compound bow, he shot an aluminum arrow through the window of his former girlfriend's house. Due to probation violations, the sentence was ultimately converted to a three-year state prison term. No direct appeal was taken from the conviction.
On April 15 and June 13, 2008, nearly ten years after the initial sentence, defendant filed two petitions for PCR, one counseled and the other pro se. For reasons not clear from the record, only the uncounseled PCR petition appears to have been considered; it was denied on June 30, 2008. Defendant subsequently appealed, the denial was reversed, and the matter remanded so that defendant's application could be referred for representation to the Office of the Public Defender, Post-Conviction Relief Unit. On July 7, 2009, defendant's third application, made on the remand with the assistance of counsel, was denied as time-barred. Defendant now appeals.
Defendant's contentions are:
POINT ONE THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF ON PROCEDURAL GROUNDS POINT TWO DEFENDANT'S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE TO DEFENDANT POINT THREE THERE WAS NOT A SUFFICIENT FACTUAL BASIS FOR DEFENDANT'S PLEA TO THE CRIME OF AGGRAVATED ASSAULT Where a PCR petition is premised on the ineffective assistance of counsel, New Jersey courts are guided by the two-part Strickland/Fritz framework:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. [Strickland v. Washington,*fn1 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).]
The second prong of this test is satisfied by a showing that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. In the case of a defendant who enters a guilty plea, he or she must also demonstrate a reasonable probability that, but for counsel's errors, no plea would have been entered and "he [or she] . . . would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985).
Post-conviction relief constitutes "New Jersey's analogue to the federal writ of habeus corpus." State v. Preciose, 129 N.J. 451, 459 (1992). A defendant making a prima facie showing of entitlement to such relief, that is, "demonstrat[ing] a reasonable likelihood that his or her claim will ultimately succeed on the merits[,]" is generally entitled to an evidentiary hearing. State v. Marshall, 148 N.J. 89, 158 (1997) (citing Preciose, 129 N.J. at 463), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). Absent such a showing, however, no evidentiary hearing is required. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
In his first point, defendant argues that the trial court erred in concluding that his petition was time-barred. Rule 3:22-12 states that no PCR "petition shall be filed . . . more than five years after . . . entry . . . of the judgment . . . unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." The excusable neglect here is asserted to be defendant's lack of knowledge that he had the right to file such a petition and/or that the attorney he hired in 2008 did not follow through on a PCR application in his behalf, and was thereby negligent. Defendant does not explain why hiring an attorney eight years after the fact excuses him from the rule-bar.
Mere lack of knowledge of the existence of time limits does not exempt a defendant from the rule's proscription. See State v. Moran, 202 N.J. 311, 320 (2010); State v. Dugan, 289 N.J. Super. 15, 22 (App. Div.), certif. denied, 145 N.J. 373 (1996). Because we agree with the motion judge that defendant does not proffer facts legally supporting his claim of excusable neglect, we also agree that he has not established circumstances which warrant relaxation of the five-year ...