On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 96-12-0488.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 10, 2011 -
Before Judges Sapp-Peterson and Ostrer.
A jury convicted defendant of first-degree carjacking, N.J.S.A. 2C:15-2; first and second-degree robbery, N.J.S.A. 2C:15-1a(1) and (2); fourth-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-9; and third-degree escape, N.J.S.A. 2C:29-5. On November 16, 1998, the court imposed an aggregate custodial sentence of thirty years with a five-year period of parole ineligibility, to be served consecutive to a juvenile sentence for armed robbery that defendant was already serving. The conviction and sentence imposed were upheld on direct appeal. State v. Clay, No. A-2691-98 (App. Div. October 20, 2000). The Supreme Court denied defendant's petition for certification. State v. Clay, 167 N.J. 630 (2001). On October 21, 2008, nearly ten years after his conviction, defendant filed a pro se post-conviction relief (PCR) petition. On October 4, 2009, defendant supplemented his pro se petition with a certification and, the following month, submitted two additional certifications from Joyce Nadhir and Fern Davis.
In his certification, defendant stated that based upon his trial counsel's representation as to his maximum custodial exposure upon conviction, he rejected the plea offer extended to him in which the State would recommend a thirteen-year prison term with a five-year period of parole ineligibility if he pled guilty to carjacking and escape. Both Nadhir and Davis, in their certifications, indicated that pending his trial, defendant had many discussions with them during which he explained that his trial counsel advised him to reject the plea offer, since a conviction would not result in a jail term of more than fifteen years with a five-year period of parole ineligibility.
Judge John J. Coyle, Jr. conducted oral argument on the petition on February 5, 2010, and issued a written opinion on March 26, 2010, denying defendant's petition. Citing Rule 3:22-12(a), the judge found that defendant's petition was time-barred and that defendant failed to set forth any facts demonstrating excusable neglect or exceptional circumstances justifying a relaxation of the filing requirements of the rule. The present appeal followed.
On appeal, defendant raises the following points for our consideration:
DEFENDANT'S PETITION SHOULD NOT HAVE BEEN PROCEDURALLY BARRED UNDER RULE 3:22-12. POINT TWO
THE [PCR] COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
THE [PCR] COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL. POINT FOUR DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR [PCR] (NOT RAISED BELOW).
Rule 3:22-12 provides in pertinent part that no petition [for PCR] shall be filed pursuant to this rule more than 5 years after the date of entry pursuant to Rule 3:21-5 of the judgment of conviction that is being challenged unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's ...