February 1, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MIGUEL GONZALEZ, DEFENDANT-PETITIONER.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 87-08-1027.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 18, 2012 -
Before Judges Espinosa and Kennedy.
Defendant appeals from the denial of his second petition for post-conviction relief (PCR). We affirm.
Defendant was convicted of first-degree murder, fourth- degree unlawful possession of a weapon, second-degree burglary and third-degree theft. He was sentenced on April 18, 1989 to an aggregate sentence of thirty years without any eligibility of parole. Defendant appealed and argued that comments by the prosecutor during summation deprived him of a fair trial; that trial counsel was ineffective and that the trial court abused its discretion by admitting "gruesome photographs" into evidence. His convictions and sentence were affirmed on direct appeal, State v. Bilbrault, No. A-1064-89T4 (App. Div. June 16, 1992), and his petition for certification was denied, State v. Gonzalez, 130 N.J. 595 (1992).
Defendant filed his first PCR petition on December 12, 1997. The trial court denied the petition. We affirmed in an unpublished opinion in which we noted that defendant's petition was time-barred, R. 3:22-12, and procedurally barred, R. 3:22-4, State v. Gonzalez, No. A-5909-97T4 (App. Div. November 12, 1999).*fn1
Defendant filed this, his second PCR petition, on July 7, 2006. The trial court denied his petition on August 27, 2010. In this appeal, defendant raises the following issues:
POST-CONVICTION RELIEF RULES 3:22-4 AND -12 DO NOT BAR THE COURT'S
CONSIDERATION OF THE DEFENDANT'S CLAIM
THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL AND THE RIGHT TO DUE PROCESS WHERE THE TRIAL COURT ISSUED A DEFECTIVE JURY INSTRUCTION ON ACCOMPLICE LIABILITY
A. THE INSRUCTION ON ACCOMPLICE LIABILITY FAILED TO SET FORTH THE REQUISITE MENTAL ELEMENT FOR CULPABILITY
B. THE INSTRUCTION ON ACCOMPLICE LIABILITY FAILED TO INFORM THE JURY THAT CO-DEFENDANTS COULD BE GUILTY TO DIFFERING DEGREES
THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL, ON DIRECT APPEAL, AND ON HIS FIRST PETITION FOR POST-CONVICTION RELIEF
Defendant filed this second petition prior to the amendment of Rule 3:22-12, which prohibits the filing of a second or subsequent PCR more than one year after the denial of the first PCR. Nonetheless, we are satisfied that the arguments raised in Point II and the claims of ineffective assistance of counsel at trial and in his direct appeal are procedurally barred. Each of the arguments raised in Point II present issues that could have been raised in defendant's direct appeal. His arguments that he was denied the effective assistance of counsel at the trial level and in his direct appeal could have been raised in his first PCR petition. As a result, each of these issues is barred by Rule 3:22-4(a).
Defendant's argument that he was denied the effective assistance of counsel in his first PCR petition was presented approximately seven years after we affirmed the denial of his PCR petition and approximately nine years after the PCR court denied his petition. At the time he filed his second petition, Rule 3:22-12 mandated that a petition for PCR be filed no more than five years after the judgment was rendered. Defendant argues that this time limit should be relaxed in the interest of justice because he raises substantial constitutional issues, i.e., that the jury instruction on accomplice liability was defective and that his counsel was ineffective in failing to timely raise the issue. He does not, however, identify any new rule of constitutional law or any other facts that would excuse his failure to raise these issues on a timely basis.
In the context of post-conviction relief, a court should relax Rule 3:22-12's bar only under exceptional circumstances. The court should consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an "injustice" sufficient to relax the time limits. As we have made clear, the longer the time-span since the original trial, the more difficult a retrial becomes. Absent compelling, extenuating circumstances, the burden of justifying a petition filed after the five-year period will increase with the extent of the delay.
[State v. Mitchell, 126 N.J. 565, 580 (1992).]
We are satisfied that defendant's allegation of error in the jury instruction fails to present a substantial constitutional issue that justifies relaxation of the five-year rule and, further, that his argument lacks sufficient merit to warrant further discussion in a written opinion. R. 2:11- 3(e)(2).