On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 99-05-0161.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 5, 2011 -
Before Judges Alvarez and Skillman.
Defendant Angelo Marquez was convicted by a jury of three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a), one count of second-degree sexual assault, N.J.S.A. 2C:14-2(c), and one count of third-degree child endangering, N.J.S.A. 2C:24-4(a). On September 28, 2001, he was sentenced to an aggregate term of twenty-four years, subject to twelve years of parole ineligibility, to be served at the Adult Diagnostic and Treatment Center at Avenel, in addition to other lawful conditions, fines, and penalties. The convictions were affirmed. State v. Marquez, No. A-4078-01 (App. Div. Feb. 24, 2004). The subsequent petition for certification was denied. State v. Marquez, 180 N.J. 357 (2004).
Defendant's first petition for post-conviction relief (PCR) was denied on February 16, 2007, and the denial was affirmed. State v. Marquez, No. A-6210-06 (App. Div. May 26, 2009). Defendant's petition for certification to the Supreme Court was denied on September 9, 2009. State v. Marquez, 200 N.J. 370 (2009).
The procedural picture becomes cloudy after that point. In September 2009, defendant attempted to file with the Camden County Criminal Case Management (CCM) office a document titled "Post Conviction Relief Letter Brief Supplemental Brief." Defendant asserts without record support that the submission was intended to be a second petition for PCR, and was mistakenly treated as a supplemental brief on his first PCR appeal. In fact, the filing was regarded as a second PCR petition and appears to have been filed on approximately December 8, 2009.*fn1
Defendant's second PCR petition was denied on procedural grounds in May 2010, based on new Rule 3:22-4(b) and Rule 3:22-12(a)(2), which became effective February 1, 2010. Those rules, when read in combination, require second PCR petitions based on ineffective assistance of counsel to be filed no later than one year after denial of the first petition. The basis for defendant's first and second petitions was ineffective assistance of counsel.
Defendant now appeals from the May 2010 denial, asserting that because the rules did not go into effect until nearly two months after his filing, they cannot bar consideration of his application. Even if we assume that position is correct, defendant's PCR petition is nonetheless time-barred. The predecessor rule, Rule 3:22-12(a) (amended 2010), stated:
A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule more than five years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.
Defendant's sentence was imposed September 28, 2001. Consequently, defendant's second application for PCR, filed some eight years after sentencing, is three years beyond the five-year outer limit allowed by the prior rule.
Defendant proffers as excusable neglect his PCR counsel's failure to raise the issues he wanted addressed on the first application, due to counsel's inadequate investigation. He asserts that neither his prior trial nor appellate counsel conducted a proper investigation. Defendant also asserts that his PCR counsel erred by filing an appeal of the denial of the first PCR, as opposed to filing a second PCR as instructed. There is no record support for any of these assertions. By no stretch of the imagination do they constitute excusable neglect in any event. See State v. Cummings, 321 N.J. Super. 154, 165-66 (App. Div.), certif. denied, 162 N.J. 199 (1999). Moreover, even if PCR counsel had filed a second petition immediately after the first, it too would have been out of time. The earliest filing date would have been after February 16, 2007, and defendant was sentenced in 2001. That application, obviously, would have been almost five months out of time.
We therefore agree with the Law Division judge's conclusion that defendant's second petition is indeed time-barred and affirm the denial, albeit for different reasons. See State v. McLaughlin, 205 N.J. 185, 195 (2011) (citing Isko v. ...