STATE OF NEW JERSEY v. JAMES E. MCILHENNY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0658-04T20658-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES E. MCILHENNY,

Defendant-Appellant.

____________________________________

 

Submitted March 28, 2006 - Decided April 5, 2006

Before Judges Skillman and Payne.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 87-12-2653.

James E. McIlhenny, appellant, pro se.

Zulima V. Farber, Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant pled guilty pursuant to a plea bargain to felony murder, in violation of N.J.S.A. 2C:11-3a(3). The trial court sentenced defendant in accordance with the plea agreement to a life sentence, with thirty years of parole ineligibility. The court also imposed a $10,000 VCCB penalty. On appeal, we affirmed defendant's sentence on an excess sentence calendar, see R. 2:9-11, without prejudice to an application to the trial court for reconsideration of the VCCB penalty. State v. McIlhenny, No. A-3393-87T4 (App. Div. Nov. 29, 1988). Defendant subsequently made such an application, which resulted in the reduction of his VCCB penalty to $2,000.

In June 1988, defendant filed a motion to withdraw his guilty plea and vacate the judgment of conviction pursuant to R. 3:2-1 based on the "possibility of a recanting witness." This motion was denied.

In September 1990, defendant filed his first petition for post-conviction relief, which was denied. We affirmed the denial of this petition in an unreported opinion, State v. McIlhenny, No. A-1440-90T4 (App. Div. Nov. 10, 1992), and the Supreme Court denied defendant's petition for certification. 133 N.J. 430 (1993).

In 1997, defendant filed his second petition for post-conviction relief, which also was denied. On appeal, we reversed the denial of this petition on the ground that once counsel was appointed for a successive petition for post-conviction relief, defendant was entitled to have appointed counsel review the petition and make appropriate arguments. State v. McIlhenny, 333 N.J. Super. 85, 87-88 (App. Div. 2000).

In 2000, defendant re-filed his second petition for post-conviction relief, which was supported by a supplemental brief by assigned counsel. The trial court denied the petition, and on appeal, we affirmed the denial. State v. McIlhenny, 357 N.J. Super. 380 (App. Div. 2003). The Supreme Court denied defendant's petition for certification. 176 N.J. 430 (2003).

In 2004, defendant filed this petition for post-conviction relief, which was his third. The trial court denied the petition for the reasons set forth in an oral opinion delivered on August 6, 2004.

On appeal, defendant presents the following arguments:

I. APPELLANT'S CONVICTION WAS SECURED IN VIOLATION OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL, AT TRIAL, ON HIS DIRECT APPEAL TO THE APPELLATE DIVISION, ON HIS PETITION FOR CERTIFICATION, ON HIS FIRST AND SECOND PETITIONS FOR POST CONVICTION RELIEF AND THEIR ATTENDANT REVIEWS AND CERTIFICATIONS.

A. Procedural bars

B. Evidentiary hearings

C. Constitutional violations

D. Appellant's plea should not stand because defense counsel rendered the ineffective assistance of counsel in failing to investigate exculpatory fact witnesses, thus, making petitioner unable to make a knowing, intelligent and voluntary plea of guilty.

The trial court correctly concluded that defendant's petition was filed well beyond the five-year period allowed by Rule 3:22-12 and that defendant failed to show relaxation of this time bar was required either because his delay was due to "excusable neglect" or because the "interests of justice" demand such relaxation. See State v. Goodwin, 173 N.J. 583, 594-95 (2002). The court also correctly concluded that all of defendant's arguments either had been adjudicated in his prior petitions for post-conviction relief or could have been presented in those petitions, and therefore are now barred by Rules 3:22-5 and 3:22-4.

Affirmed.

 

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A-0658-04T2

April 5, 2006