June 8, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GLENN WILLIAMS, A/K/A GLEN L. WILLIAMS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 90-11-3215.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 2, 2012
Before Judges Lihotz and Waugh.
Defendant Glenn Williams appeals from the dismissal of his petition for post-conviction relief. We affirm.
We discern the following facts and procedural history from the record on appeal.
In November 1990, Williams was indicted for third-degree possession of cocaine, contrary to N.J.S.A. 2C:35-10(a)(1) (count one); second-degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5(b)(2) (count two); and third-degree possession of cocaine in a school zone with intent to distribute, contrary to N.J.S.A. 2C:35-7(a) (count three). In July 1991, he entered a plea of guilty to count two, with the understanding that the State would recommend a four-year term of incarceration. He was sentenced in accordance with the plea bargain in January 1992, and the remaining charges were dismissed.
Williams filed his PCR petition more than eight years later, in September 2010. He alleged that, on September 15, 1990, he had been stopped without cause by a member of the New Jersey State Police while driving on the Turnpike on his way into New York City, allowed to proceed without being issued a summons for any offense, and then stopped by the Port Authority Police as he exited the Lincoln tunnel on his return to New Jersey. Williams contends that the Port Authority police officer who stopped him was acting at the request of the State Police. Based upon the involvement of the State Police, Williams argued that there was a presumption of racial profiling. He relied on the Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling*fn1 and a consent order concerning racial profiling entered on September 30, 2000.
The attorney appointed to represent Williams requested discovery, but the State refused. On March 31, 2011, the PCR judge denied discovery and dismissed the petition as time barred. She also determined that Williams had failed to establish a colorable claim of racial profiling. This appeal followed.
Williams raises the following issues on appeal:
POINT I: BECAUSE DEFENDANT ESTABLISHED A "COLORABLE BASIS" FOR A CLAIM OF DISCRIMINATORY ENFORCEMENT, THE COURT ERRED IN SUBSTANTIVELY DENYING THE PCR [PETITION] WITHOUT FIRST ORDERING THE STATE TO PROVIDE THE REQUESTED DISCOVERY.
POINT II: THE COURT ERRED IN DENYING THE PCR [PETITION] WITHOUT AN EVIDENTIARY HEARING ON WHETHER DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BY COUNSEL'S FAILURE TO PROSECUTE A MERITORIOUS MOTION TO SUPPRESS.
Rule 3:22-12(a)(1) provides a time limit for the first filing of a PCR petition. It specifies that "no petition shall be filed pursuant to this rule more than [five] years after the date of entry . . . of the judgment of conviction that is being challenged unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." Ibid. Lack of "sophistication in the law does not satisfy the exceptional circumstances required" to constitute excusable neglect. State v. Murray, 162 N.J. 240, 246 (2000) (citations omitted).
The five-year time bar established by Rule 3:22-12(a)(1) is relaxable only in "exceptional circumstances." State v. Afanador, 151 N.J. 41, 52 (1997). In determining whether or not exceptional circumstances exist, courts 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.'" Ibid. (quoting State v. Mitchell, 126 N.J. 565, 580 (1992)). Without "compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay." Ibid. (citing Mitchell, supra, 126 N.J. at 580).
Judge Sheila A. Venable correctly held that Williams offered no facts that would establish the type of extenuating circumstances necessary for relaxation of the five-year filing requirement. In 1991, we recognized the right of a criminal defendant to discovery concerning racial profiling upon presentation of a colorable basis for a claim of selective enforcement. State v. Kennedy, 247 N.J. Super. 21, 25 (App. Div. 1991). Williams did not file his PCR petition until more than eight years later, long after the five-year period had expired. He has offered no explanation for the delay.
We also agree with the PCR judge that Williams failed to offer a colorable claim of racial profiling. The underlying offense to which he pled guilty was premised on evidence seized in connection with a stop by the Port Authority Police, not the State Police. We have held that "a motorist, stopped by a police agency other than the State Police, cannot rely on the contents of the Attorney General's Interim Report to show entitlement to discovery in order to explore the existence of a racial profiling or selective enforcement defense." State v. Halsey, 340 N.J. Super. 492, 494 (App. Div. 2001), certif. denied, 171 N.J. 443 (2002).
There is nothing in the record to support Williams' assertion that there was any State Police involvement, other than Williams' own assertions made for the first time ten years after the underlying events. The Port Authority police officer's report reflects that Williams was stopped because his vehicle had no license plates and displayed an insufficient paper tag. There is no reference to the involvement of the State Police.