On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 96-09-0225.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Hayden.
Defendant Trevor Desouza appeals from April 14, 2009 order denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.
We discern the following facts from the record on appeal. In February 1996, defendant was indicted on one count of second- degree aggravated assault, N.J.S.A. 2C:12-1b(1), and one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. The charges were based on an allegation that he threw his three-week-old child against a wall. Defendant denied the charges and claimed the child was injured from being scratched by defendant's plastic pocket protector while he was fighting with his wife.
On December 13, 1996, pursuant to a plea agreement, defendant pled guilty to a one-count accusation charging him with a violation of N.J.S.A. 9:6-3, fourth-degree cruelty and neglect of a child, and the State agreed to recommend a non- custodial term of probation, conditioned on participation in family counseling, and to dismiss the pending indictment. During the plea hearing, defendant's admission that he negligently injured the child during a fight with his wife was accepted as a sufficient factual basis for the plea. The pre- sentence report, however, indicated that defendant agreed with the charge that he threw his son against the wall. Defendant was subsequently sentenced in accordance with the plea agreement. On the judgment of conviction (JOC), the original and final charge is listed as "Child Cruelty or Neglect."
According to defendant, in 2004 he was incarcerated in state prison on an unrelated conviction. Due to the nature of his 1997 conviction, the prison authorities considered defendant a child abuser, which negatively affected his classification and parole qualification. On July 20, 2007, defendant filed a PCR petition requesting amendment of the JOC and pre-sentence report to accurately reflect that he pled guilty to child neglect, not child abuse. Subsequently, appointed counsel filed an amended petition.
On December 5, 2008, Judge Thomas Kelly held a hearing and denied the petition. The judge found that under R. 3:22-12, defendant was procedurally barred from obtaining relief as a PCR petition must be brought within five years of the conviction and this petition was filed over ten years later with no showing of excusable neglect. In his written decision, the judge held as follows:
While an illegal sentence may be corrected at any time, this is not a case where there was imposition of an illegal sentence. The defendant moves this court to correct the Presentence Report and clarify the Judgment of Conviction relative to Accusation Number 96-09-0225.
The court will not rewrite history and the records of this case. They clearly indicate that during a domestic violence incident between the defendant and his wife on December 20, 1995, their three month old child, who at the time was being held by the wife, hit the wall and fortuitously experienced only minor injuries to the face.
The plea transcript, dated September 30, 1996, has also been reviewed by the court. Defendant, I find, was sworn upon his oath to tell the truth . . . . Before the court and counsel, defendant gave all the necessary legal information to Judge Parillo who thereafter found . . . that defendant had entered a free, voluntary, knowledgeable plea with the advice of counsel, and accepted the factual basis for his admission of guilt to a violation of N.J.S.A. 9:6-3, Child Cruelty or Neglect. . . . It is patently clear that defendant pled guilty to the correct offense, [N.J.S.A.] 9:6-3 and gave an adequate basis for the court to accept his offer of admission of guilt to same.
The judge decided that defendant had presented no basis to correct the JOC. Nevertheless, he ordered that the presentence report be amended to include defendant's 1996 testimony concerning the factual basis for his plea. He also suggested that defendant's counsel provide the transcript ...