STATE OF NEW JERSEY v. MARLON D. THOMPSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0803-04T10803-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARLON D. THOMPSON,

Defendant-Appellant.

_________________________________

 

Submitted February 8, 2006 - Decided March 22, 2006

Before Judges Fuentes and Graves.

On appeal from Superior Court of

New Jersey, Law Division, Cumberland

County, Indictment Nos. 97-08-756 and

97-08-757.

Marlon D. Thompson, appellant pro se.

Ronald J. Casella, Cumberland County

Prosecutor (Seth Levy, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Marlon D. Thompson appeals from the order of the trial court denying his second petition for post-conviction relief (PCR). Defendant pled guilty on April 6, 1998 to aggravated manslaughter, in violation of N.J.S.A. 2C:11-4a, and first-degree robbery, in violation of N.J.S.A. 2C:15-1. These two crimes were not related to each other, and were presented as charges against defendant in two separate accusatory instruments.

On May 15, 1998, defendant was sentenced to a term of twenty-six years imprisonment, with thirteen years of parole ineligibility on the aggravated manslaughter charge, and to a consecutive term of twelve years imprisonment, with six years of parole ineligibility on the robbery. On May 18, 1999, we reviewed and affirmed defendant's sentence on direct appeal. State v. Thompson, No. A-855-98T4 (App. Div. order dated May 18, 1999), and the Supreme Court denied defendant's petition for certification. State v. Thompson, 162 N.J. 197 (1999).

On January 24, 2000, defendant filed a pro se motion, which was treated by the court as a PCR petition. The trial court denied this first PCR petition by order dated July 9, 2001. Defendant appealed from this decision raising the following arguments:

POINT I

THE TRIAL COURT ERRED IN DEYING APPELLANT'S MOTION FOR POST-CONVICTION RELIEF.

POINT II

APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL ON HIS MOTION FOR POST-CONVICTION RELIEF.

Defendant filed a pro se supplemental brief which asserted the following additional arguments:

POINT I

AN EVIDENTIARY HEARING IS NECESSARY FOR DEFENDANT TO MEET THE BURDEN OF PROOF FOR OBTAINING RELIEF, WITH THIS COURT ON THE FINDING OF FACTS AND LAWS.

POINT II

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED HIM BY THE 6th AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE NEW JERSEY CONSTITUTION ART. I, Par. 10.

A. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO CONDUCT ANY PRE-TRIAL INVESTIGATION/FILE TIMELY MOTIONS.

B. TRIAL COUNSEL WAS INEFFECTIVE FOR OBJECTING; RATHER THAN, REQUESTING A CONTINUANCE AND/OR MIS-TRIAL ON THE GROUNDS OF HAVING RECEIVED DEFENDANT'S DISCOVERY ON DAY OF TRIAL.

POINT III

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ON DIRECT APPEAL.

We rejected these arguments and affirmed the trial court's denial of defendant's PCR petition. State v. Thompson, No. A-6708-00T4 (App. Div. March 25, 2003). The Supreme Court denied defendant's petition for certification. State v. Thompson, 179 N.J. 372 (2004).

Defendant's second PCR petition was not included as part of the record before us. We do have a copy of the trial court's order entered on June 7, 2004, denying the petition as time barred, pursuant to R. 3:22-12(a). We thus infer that this second PCR petition was filed sometime between March 15, 2004 (the date the Supreme Court denied certification on the first PCR petition), and June 7, 2004.

Defendant now appeals from the order of the trial court, raising the following arguments:

POINT I

THE WITHIN MATTER IS NOT PROCEDURALLY BARRED

A. PETITIONER ARGUES THAT THE FIVE YEAR TIME PERIOD IMPOSED UNDER R. 3:22-12, SHOULD BE RELAXED PURSUANT TO R. 1:1-2.

B. THE SPECIFICALLY ENUMERATED EXCEPTIONS TO R. 3:22-4 ARE CLEARLY APPLICABLE TO THIS PETITION.

C. IN SO FAR AS THE WITHIN PETITION ALLEGES FACTS THE [SIC] LIE "OUTSIDE THE RECORD", THE WITHIN PETITION CANNOT BE PROCEDURALLY BARRED UNDER R. 3:22-5.

 
After reviewing the record, and in light of prevailing legal standards, we affirm. The arguments raised by defendant lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Defendant's second PCR petition is time barred pursuant to R. 3:22-12(a). Defendant has not presented any reasons to justify the relaxation of this restriction.

Affirmed.

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4

A-0803-04T1

March 22, 2006