On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 86-07-2752.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...