On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 90-12-1762.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 28, 2011
Before Judges Sabatino and Fasciale.
Defendant appeals from a May 7, 2009 order denying his petition for post-conviction relief (PCR). He contends that the judge erred by dismissing his petition as time-barred. We disagree and affirm.
In 1990, defendant used a lead pipe and brutally attacked and murdered an elderly husband and wife in their bedroom. The murders occurred during the course of a robbery after defendant burglarized their home. Defendant's motive was to obtain money to purchase drugs. The evidence against defendant was overwhelming.
At the conclusion of a jury trial in 1991, defendant was convicted of second-degree burglary, N.J.S.A. 2C:18-2a; two counts of first-degree robbery, N.J.S.A. 2C:15-1; four counts of first-degree felony murder, N.J.S.A. 2C:11-3a; and two counts of first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3a(1), (2). After the appropriate mergers, the judge sentenced defendant on the murder convictions to two consecutive terms of life in prison, each with a thirty-year period of parole ineligibility, concurrent to ten years on the burglary count and twenty years on each of the robbery counts. We affirmed the convictions in an unpublished opinion. State v. Watson, No. A- 3328-91 (App. Div. December 17, 1993). The Supreme Court denied certification. State v. Watson, 135 N.J. 468 (1994).
On February 3, 2006, fourteen years after his sentence, defendant filed his petition for PCR.*fn1 Defendant primarily contended that his trial counsel was ineffective by failing to (1) "investigate and present [a] mental-state defense"; and (2) "challenge [his] competency[.]" He argued that he had been a patient at various psychiatric hospitals before his convictions, and had been diagnosed in 2005 with a schizoaffective disorder "manifested by auditory hallucinations, bouts of depression that include anhedonia, isolation, low self-esteem, lethargy, and poor appetite."
Defendant argued that his "long-standing mental illness" constituted "excusable neglect" warranting relaxation of the five-year period for filing PCR petitions pursuant to Rule 3:22- 12. Defendant contended that he did not know about the deadline because of his mental illness, and that the interests of justice required relaxation of the five-year time bar.
The judge assigned the PCR application, Judge Mitchel E. Ostrer,*fn2 initially issued an order providing for the release of defendant's mental health records between 1991 and 2005.
Defendant's PCR counsel objected and "sought initial exclusive review of the records." The judge then entered an order allowing defense counsel "alone to review [defendant's] medical records from 1991 to 2006 from the County Correction Center and the New Jersey State Prison." After completing his review of defendant's medical records, defense counsel informed the judge that "[defendant] intended to provide no further support [for] his claim of excusable neglect."
On May 7, 2009, Judge Ostrer issued a detailed written opinion and dismissed the petition for PCR. He determined, without an evidentiary hearing, that defendant failed to establish excusable neglect to justify relaxing the five-year PCR time bar, and that the interests of justice did not require an extension of time.
On appeal, defendant raises the following point:
DEFENDANT'S PCR PETITION SHOULD NOT HAVE BEEN TIME-BARRED; THEREFORE, THIS MATTER MUST BE REMANDED FOR THE PCR COURT TO ADDRESS THE ...