NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 4, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-10-3475.
Troy Swint, appellant pro se.
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew Robert Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Fisher and Alvarez.
Defendant Troy Swint appeals from the June 25, 2012 denial of his second petition for post-conviction relief (PCR). We affirm.
Defendant was convicted after trial of first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a). The victim of the kidnapping and aggravated assault was an acquaintance of defendant. Defendant was sentenced to concurrent terms resulting in a sentence to life imprisonment subject to a twenty-year parole disqualifier.
The convictions were affirmed on direct appeal, but remanded for resentencing. State v. Swint, 328 N.J.Super. 236, 264-65 (App. Div.), certif. denied, 165 N.J. 492 (2000). Thereafter, defendant unsuccessfully appealed the resentence. State v. Swint, No. A-5545-05 (App. Div. July 30, 2008), certif. denied, 197 N.J. 14 (2008).
Defendant's first PCR petition was denied. State v. Swint, No. A-2850-06 (App. Div. July 9, 2009) (slip op. at 3). The date defendant filed his second petition is in dispute. He claims he filed the petition on January 8, 2009, while the State contends it was filed in November, 2009.
Defendant mailed out his second PCR petition in January 2009 and again in May 2009. However, during that time, direct appeal of the denial of his first PCR petition was pending, and thus prevented any action on his second PCR petition. The court clerk found no record that defendant had resubmitted his second PCR petition after the July 2009 judgment on appeal of his first PCR petition. Rule 3:22-12(a)(3) requires the re-filing of a PCR petition within ninety days of the date of the judgment on direct appeal. It is unclear whether defendant resubmitted his second PCR petition within ninety days of July 9, 2009, as nothing in the appellate record allows us to verify the alleged November 2009 filing date.
In any event, Judge Vichness denied defendant's application on the grounds that it was time-barred pursuant to Rule 3:22-12, as well as on the merits. Defendant claims that trial counsel was ineffective because no Wade hearing was sought prior to trial and PCR counsel's ...