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State of New Jersey v. Johnnie Preston A/K/A Travis Lovette

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 23, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHNNIE PRESTON A/K/A TRAVIS LOVETTE, A/K/A JO-JO MALIK, A/K/A BOMANI KUBWEZA, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 86-07-2752.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 12, 2011

Before Judges Grall and Alvarez.

Defendant Bomani Kubweza was convicted under the names Johnnie Preston a/k/a Travis Lovette and Jo-Jo Malik, after trial by jury, of first-degree armed robbery, N.J.S.A. 2C:15-1 (count one); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count three); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d) (count five); and third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count six). He was sentenced on February 20, 1987, after appropriate mergers, to thirty years imprisonment, subject to parole ineligibility of thirty years, on the felony murder, and a concurrent term of four years for the unlawful possession of a firearm (count three). Appropriate fines and penalties were also imposed.

On appeal, we affirmed defendant's convictions and sentences in an unreported opinion. State v. Preston, No. A-3687-86 (App. Div. Feb. 24, 1989). The Supreme Court denied defendant's petition for certification. State v. Preston, 117 N.J. 142 (1989).

Defendant filed his first petition for post-conviction relief (PCR) in 1991, which was twice remanded for evidentiary hearings, and twice denied. In 1996, defendant's second motion for PCR was denied. The denial was affirmed in 1998. State v. Preston, No. A-2132-96 (App. Div. June 4, 1998) (slip op. at 2, 3).

On September 26, 2008, defendant filed a third petition for PCR, which the trial court denied by an oral opinion rendered on July 16, 2009. The court rejected defendant's contention, reiterated on appeal, that his lengthy periods of solitary confinement and denial of law library privileges excused his delayed filing of his third PCR petition. Accordingly, the judge found defendant's application to be time-barred pursuant to former Rule 3:22-12. Under former Rule 3:22-12, a petition, other than to correct an illegal sentence, "shall be filed . . . no more than 5 years after rendition of the judgment or sentence unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." R. 3:22-12 (amended 2010).

On appeal, defendant presents the following arguments:

I. THE PCR COURT ERRED IN FAILING TO VACATE DEFENDANT'S CONVICTION AND SENTENCE BASED ON DEFENDANT'S TRIAL COUNSEL'S INEFFECTIVE ASSISTANCE

II. THE PCR COURT ERRED IN FINDING THE PETITION TO BE TIME BARRED BECAUSE THE PETITIONER'S FAILURE TO FILE HIS PETITION WITHIN FIVE YEARS OF HIS CONVICTION WAS DUE TO EXCUSABLE NEGLECT

III. THE PCR COURT ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING ON DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF

In his submission to the trial court defendant did not, in any fashion, explain how the periods of time in solitary confinement and restrictions barring his access to the law library were so substantial as to constitute neglect excusing the twenty-one years between sentence and his third petition.

Clearly, the five-year time bar is not absolute. State v. Milne, 178 N.J. 486, 492 (2004). It can be relaxed where excusable neglect or the interests of justice require. Ibid. In making the determination as to relaxation, however, we are called upon to balance the extent and cause of the delay, 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. Afanador, 151 N.J. 41, 52 (1997) (internal citation omitted). The burden rests upon a defendant to justify an extension beyond the five-year term, which burden increases with the length of the delay, in this case since 1987. See ibid.

Since defendant's delay is not the product of excusable neglect, it therefore raises an insurmountable bar. The five-year limit reflects the necessity "for achieving finality of judgments and to allay the uncertainty associated with unlimited possibilities of relitigation." State v. Cummings, 321 N.J.

Super. 154, 165 (App. Div.), certif. denied, 162 N.J. 199 (1999). Previously, we have found that a defendant's illiteracy was not a basis for a finding of excusable neglect. Id. at 166. Similarly, lack of knowledge that a mechanism for post-conviction relief existed is not sufficient for a finding of excusable neglect. Id. at 166 (citing State v. Murray, 315 N.J. Super. 535, 539-41 (App. Div. 1998), aff'd and remanded by, 162 N.J. 240 (2000)). Psychological treatment does not establish excusable neglect, unless a connection can be established by a defendant that the treatment prevented him from pursuing the petition on a timely basis. Cummings, supra, 321 N.J. Super. at 166 (citing State v. D.D.M., 140 N.J. 83 (1995)).

Placed in this context, defendant's claims are nothing more than insufficient "bald assertions" which do not warrant an exception. See Cummings, supra, 321 N.J. Super. at 170.

Affirmed.

20120323

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