On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Accusation No. 01-10-312.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 11, 2012 Before Judges Nugent and Haas.
Defendant A.D.-C. appeals from an order denying his petition for post-conviction relief (PCR), which he filed more than seven years after the entry of the judgment convicting him of aggravated sexual assault. He argues that the judge who heard his PCR petition erroneously denied the petition as untimely, and compounded that error by failing to compel the State to produce its file for discovery. After considering the record in light of defendant's arguments, we affirm.
Defendant was sixteen years old when he pled guilty to the single count in an accusation charging him with aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), for committing an act of sexual penetration with a victim less than thirteen years old.*fn1
As a factual basis for his plea, defendant explained that while he was fifteen years old, he met a girl in a mall who lied about her age, claiming to be fifteen years old. After meeting her, they talked, went to a secluded location outside of the main area of the mall, and had consensual sex.*fn2 Following his arrest, defendant learned that the victim was less than thirteen years old. In fact, defendant and his attorney reviewed her birth certificate before defendant agreed to plead guilty.
The court sentenced defendant to a five-year term of imprisonment, and to community supervision for life, N.J.S.A. 2C:43-6.4(a). The judge also required defendant to comply with Megan's Law by registering as a sex offender, N.J.S.A. 2C:7-2(a)(1), (c) and (d); imposed mandatory fines and assessments; and ordered that defendant make restitution to the victim and her family. Defendant did not file a direct appeal. Nearly eight years later, defendant filed his PCR petition.
While the petition was pending, defendant asked the prosecutor to produce the State's file for discovery, because the Public Defender's office had lost his file. The prosecutor refused to comply with the request, explaining that defendant had filed his petition three years late, and even if his victim had lied about her age, her misrepresentation was not a defense to the crime.
Thereafter, the prosecutor moved to dismiss defendant's PCR petition because defendant had failed to assert a legally sufficient claim, and had failed to demonstrate excusable neglect for filing the petition late. Defendant opposed the motion and requested the court compel the prosecutor to produce its file for discovery.
The court granted the State's motion. The court explained that "our court rules are very clear that a petition cannot be filed more than five years after the judgment unless it alleges facts showing that the delay was due to some excusable neglect on the part of the defendant or defense counsel." The court noted that defendant had not only failed to demonstrate excusable neglect, but "[i]t's not even mentioned, frankly, in defendant's petition." The court also noted that "the late filing could be excused if denying the PCR petition would result in a denial of a defendant's constitutional rights[,] . . . lack of jurisdiction or some other significant flaw in the prosecution and conviction." The court emphasized defendant's only claim was that the victim had lied about her age, and that even if true, the victim's misrepresentation was not a defense to the offense of committing an act of sexual penetration with a person under the age of thirteen.
The court also explained that one policy reason for the time limits on filing PCR petitions was to provide finality. The court deemed that policy particularly appropriate in a case involving a victim under age thirteen who had been sexually assaulted more than five years before defendant filed the PCR petition.
Addressing the State's refusal to disclose its file, the court noted that some public records relating to the case were available to defense counsel, and defendant was "available to inform defense counsel of claims constituting excusable neglect or claims that do not require any great deal of legal expertise." The court also noted that defendant had not denied that the incident occurred. Because defendant had not attempted to demonstrate excusable neglect, had not denied that he committed the offense, and had not demonstrated any viable ground to support his PCR petition, the court granted the State's motion and dismissed defendant's petition. This appeal followed.
PCR petitions are authorized and circumscribed by Rules 3:22-1 to -13. Rule 3:22-2 provides that a PCR petition "is cognizable if based upon any of" four grounds. The four grounds are: a "[s]ubstantial denial in the conviction proceedings of
[a] defendant's [federal or state constitutional rights]," lack of jurisdiction, imposition of an illegal sentence, and "[a]ny ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy." Ibid. "A petitioner must establish the right to such relief by a preponderance of the credible evidence." State v. Preciose, 129 N.J. ...