On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 21-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Hayden.
Defendant E. Leroy Witherspoon appeals from a June 23, 2011 Law Division judgment denying his petition for post-conviction relief (PCR). We affirm.
In October 1984, defendant was convicted in the Southampton Township Municipal Court on a charge of passing a bad check, N.J.S.A. 2C:21-5. Approximately twenty-six years later, on March 14, 2010, he filed a PCR petition claiming that he was unfairly convicted, without representation by counsel, and that the conviction was preventing him from enrolling in a registered nursing program at a community college. By the time he filed his petition, however, the municipal court trial records had long since been destroyed.
The municipal judge held a plenary hearing on the PCR petition, at which defendant testified. He admitted he let almost twenty-six years go by without questioning his conviction. Defendant first conceded that he never looked into having the conviction expunged, although he later testified that he did attempt to have it expunged. The municipal judge denied the petition. He found no evidence of excusable neglect in defendant's delayed filing, and he found that the delay caused prejudice to the State in responding to the petition, because the pertinent municipal records had been destroyed. On defendant's appeal to the Law Division, Judge Thomas Kelly made the same findings. He also found defendant's municipal testimony not credible concerning the events that allegedly transpired in the municipal court some twenty-six years earlier.
On this appeal, we are bound by the Law Division judge's decision so long as it is supported by substantial credible evidence and is consistent with applicable law. See State v. Locurto, 157 N.J. 463, 474 (1999). Based on our review of the record, we find no basis to disturb Judge Kelly's decision. Defendant did not establish excusable neglect for failing to file his PCR petition within the five-year time limit set forth in Rules 7:10-2(b)(2) and 3:22-12(a)(1). Further, defendant produced absolutely no legally competent evidence that his decades-old municipal conviction was a bar to his college admission.
We affirm for the reasons stated in Judge Kelly's oral opinion placed on the record on June 23, 2011. Nothing in our opinion would preclude defendant from filing a motion for expungement of his conviction if he has not already done so.
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