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State v. Worthy

Superior Court of New Jersey, Appellate Division

May 28, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
MARVIN WORTHY, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 8, 2013

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 02-09-1247.

Marvin Worthy, appellant pro se.

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Sarah M. Mielke, Special Assistant Prosecutor, on the brief).

Before Judges Messano and Ostrer.

PER CURIAM

Defendant Marvin Worthy appeals from an order entered September 30, 2011, denying, without an evidentiary hearing, his second petition for post-conviction relief (PCR). Defendant collaterally challenges his July 2004 judgment of conviction of conspiracy to commit murder, N.J.S.A. 2C:5-2, [1] first-degree murder, N.J.S.A. 2C:11-3, and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a). We affirm.

On direct appeal, we affirmed defendant's conviction in an unpublished opinion, but we remanded to merge the weapons conviction into the murder conviction. State v. Worthy, No. A-1846-04 (App. Div. Dec. 22, 2006). The Supreme Court denied defendant's petition for certification. State v. Worthy, 190 N.J. 396 (2007).

In his first PCR petition, timely filed in June 2009, defendant claimed his trial counsel provided ineffective assistance by failing to conduct a reasonable pre-trial investigation that would have enabled him to obtain exculpatory statements from co-defendants Renato Santos and James Irwin, as well as non-defendants Steven Bennett and Jem Salamanca. The trial court denied the petition in October 2009 without an evidentiary hearing. We affirmed the trial court's order on March 30, 2011. State v. Worthy, No. A-2346-09 (App. Div. Mar. 30, 2011).

We shall not review at length here the roles that these various individuals played in the murder of the victim, Rashon Roy. We reviewed the facts in detail in our prior opinions. Suffice it to say that we denied defendant's first PCR petition because it was grounded in "bald assertions." Id. at slip op. at 14 (quoting State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)). Defendant presented nothing but conclusory claims of what the uncalled witnesses would have said, unsupported by affidavits or certifications on personal knowledge as required.

While defendant's appeal from the denial of his first PCR petition was pending, he filed his second petition on October 4, 2010, alleging ineffective assistance of PCR counsel. Defendant alleged his PCR counsel was ineffective because he failed to submit evidence in support of his petition. The trial court dismissed the petition without prejudice on October 27, 2010. The trial court concluded that defendant could not pursue a second petition while the first was pending appeal.

Almost six months after we affirmed the denial of defendant's first petition, defendant refiled his second petition, on August 3, 2011. The trial court, by a different judge, denied that second petition by order entered September 30, 2011. In a short letter opinion, the court explained the petition was time-barred because it was filed more than one year after denial of the first petition, citing Rule 3:22-12(a)(2); the filing of the appeal of the first PCR petition did not toll the one-year period; and defendant failed to re-file his second petition within ninety days of our 2011 decision, citing Rule 3:22-12(a)(3). Without discussing the merits ...


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