NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 8, 2013
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 03-11-0748.
Joseph E. Krakora, Pubic Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).
Before Judges Fisher and St. John.
Defendant Fernando Rosario appeals from an order of the Law Division denying his petition for post-conviction relief (PCR).
We remand for a determination as to whether defendant has met the requirements for relaxing the procedural time-bar.
We briefly summarize the relevant procedural history and the facts based on the record before us.
Pursuant to a negotiated plea agreement, defendant pleaded guilty to aggravated manslaughter as charged in Accusation 03-11-0748. On January 23, 2004, he was sentenced to a twenty-year prison term with an eighty-five percent period of parole ineligibility pursuant to N.J.S.A. 2C:43-7.2, the No Early Release Act (NERA). The judgment of conviction was signed on February 20, 2004. Defendant appealed his sentence and conviction. We affirmed his conviction but remanded for resentencing. State v. Rosario, No. A-4465-03 (App. Div., December 23, 2005). On August 24, 2007, defendant was re-sentenced to a twenty-year term subject to NERA, and he appealed. We affirmed the sentence. State v. Rosario, No. A-3274-07 (App. Div., April 1, 2009).
On April 30, 2009, slightly more than five years after defendant's judgment of conviction, he filed a pro-se petition for PCR. On February 1, 2010, PRC counsel filed a brief in support of defendant's petition. Defendant claimed that his sentence was illegal and that his plea counsel had been ineffective given that counsel failed to apprise defendant of his plea options and failed to present available defenses. The only reason defendant provided for the lateness in filing his PCR petition was his pending appeals.
The PCR judge instructed counsel to file a brief which addressed only the issue of the lateness of defendant's petition. Counsel believed the petition was timely and, therefore, never argued excusable neglect and did not address ...