On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 97-04-0503.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 31, 2011 -
Before Judges Parrillo and Alvarez.
Defendant, Edwin Lorenzo, appeals from a November 6, 2009 order of the Law Division denying his petition for post- conviction relief (PCR). We affirm.
Defendant entered a guilty plea to an accusation charging third-degree eluding, N.J.S.A. 2C:29-2(b). In accord with the negotiated plea, on June 6, 1997, defendant was placed on probation for three years. Appropriate fines and penalties were imposed, and related motor vehicle summonses were dismissed. Defendant did not appeal his sentence.
On November 19, 2007, defendant filed a PCR petition, alleging seven separate grounds for relief, ranging from ineffective assistance of counsel to the claim that his application was not time-barred despite the ten-year lapse between his sentence and PCR petition filing. After oral argument, the PCR judge denied the application in a thirty-three page written decision. The first issue he addressed was whether the application should be denied in light of Rule 3:22-12(a), containing a five-year time bar:*fn1
[Rule] 3:22-12(a) governs the general time limitations in which a petition for post-conviction relief can be filed. This rule mandates that a petition be filed no more than "5 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 petitioner's excusable neglect." However, it is important to note that this rule does not apply if the motion is filed for the purpose of correcting an illegal sentence. Id. However, while an "illegal" sentence is correctable at any time, this limited exception to the general rule should be confined to cases in which the quantum of the sentence imposed is beyond the maximum provided by law or where the term set by the court is not authorized by any statutory provision. Id. This court will note that, for reasons that will be stated on the record, it does not regard this sentence as an "illegal sentence."
The five year period prescribed by this rule is commenced when the judgment of conviction is entered, it is not stayed or tolled by appellate or other proceedings. State v. Dillard, 208 N.J. Super. 722 [(App. Div.),] cert. denied, 105 N.J. 527, 532 (1986). The reasoning behind such rule is clear: "achieving justice years after the fact may be more an illusory temptation than a plausibly attainable goal when memories have dimmed, witnesses have died or disappeared and evidence is lost or unattainable." State v. Mitchell, 126 N.J. 565, 575 (1992) (indicating that the court may review a petition for Post-Conviction Relief filed more than five years from the date of the judgment of conviction if the petitioner alleges facts demonstrating that delay was due to petitioner's excusable neglect).
The New Jersey Supreme Court has stated that, "absent compelling, extenuating circumstances," a petitioner's burden to justify the tardy filing of a petition increases with the extent of the delay. State v. Afanador, 151 N.J. 41, 52 (1997). Furthermore, "in determining whether a petitioner has asserted grounds sufficient for relaxation of the rule, a 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.'" State v. Goodwin, 173 N.J. 583, 594 (2002) (quoting Afanador, [supra, 151 N.J. Super.] at 52).
In the present matter, there was an approximately ten year delay between the judgment of conviction and the filing of the instant motion; therefore petitioner has a heavy burden to satisfy. Regarding the cause of the delay, petitioner claims that it was not until recently that he learned, upon receipt of records subpoenaed from the Union County Prosecutor's Office in an unrelated civil case, that the police allegations did not support a charge of eluding.  However, this court finds that petitioner's claim lacks merit. Petitioner knew what the elements of the eluding charge consisted of as the plea court went over the elements with him.  Furthermore, petitioner answered "yes" to questions asked by the court regarding the eluding charge.  Therefore, petitioner's claim that he had to wait ten years before he found out he did not commit the crime of eluding is baseless.
The prejudice to the State would be great as the relevant events occurred more than twelve years ago. The State would need to reassemble evidence, which might consist of witnesses with faded memories. This would put the State at a marked disadvantage while rewarding the petitioner for the delay. Lastly, as will be noted on the record, an injustice has not occurred that would warrant the relaxation of the time limits contained in R. 3:22-12. This is not an extenuating or compelling circumstance, and the petitioner has not met his burden of proving excusable neglect. Therefore, this claim must be considered time-barred.
Although the court found that defendant's petition was time-barred, it went on to consider defendant's substantive points, finding each to be lacking in merit.
We affirm for the reasons stated by the Law Division judge, particularly as to the time bar contained in the rule. In order for the five-year limit to be relaxed, defendant must establish excusable neglect. See State v. Merola, 365 N.J. Super. 203, 218 (Law Div. 2002) (summarizing cases not finding excusable neglect for "ignorance of the law and rules of the court[,] . . . lack [of] sophistication in the law[,] . . . failure to comprehend the meaning of R. 3:22-12[,] . . . low IQ or inability to speak or read English[,] . . . and defendant's psychological treatment." (internal citations and quotation marks omitted)). No such neglect is even suggested. Defendant merely explains that his delay resulted from his recent receipt of documents not investigated by his trial counsel, which he asserts would have provided a defense. In a case of eluding, where the court elicited a factual basis and ...