STATE OF NEW JERSEY v. STEPHEN MATTIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2714-04T12714-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEPHEN MATTIS,

Defendant-Appellant.

____________________________

 

Submitted November 9, 2005 - Decided March 1, 2006

Before Judges Coburn and Collester.

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, 95-02-396-C.

Stephen Mattis, appellant pro se.

Jeffrey S. Blitz, Atlantic County Prosecutor,

attorney for respondent (James F. Smith,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant, Stephen Mattis, appeals from the December 23, 2004, order of Judge Robert Neustadter denying his post-conviction relief (PCR) petition for withdrawal of his guilty plea based upon claimed ineffective assistance of counsel.

Defendant entered a guilty plea to one count of perjury, contrary to N.J.S.A. 2C:28-1, and was sentenced on June 21, 1995 to a probationary term of eighteen months. In December 1991, defendant allegedly fell down the parking garage stairs at Caesar's Casino in Atlantic City. He later filed a civil suit and during his deposition, he stated while under oath that he had not seen a chiropractor immediately prior to the alleged accident. After a referral by counsel for Caesar's, the Atlantic City Prosecutor conducted an investigation which resulted in an indictment charging defendant with one count of attempted theft by deception, one count of conspiracy to commit theft, and three counts of perjury. On May 8, 1995, defendant withdrew his pleas of not guilty and entered a guilty plea to one count of perjury and was subsequently sentenced. He did not file an appeal.

After defendant's first pro se PCR petition filed on October 2, 2002, was dismissed without prejudice, he filed the instant petition in December 2003. After oral argument Judge Neustadter denied defendant's petition and subsequently filed an eleven page letter opinion on December 14, 2004, detailing his reasoning.

On appeal defendant argues:

POINT I - DEFENDANT EXCEEDED THE THRESHOLD REQUIRED FOR THE LOWER COURT TO HOLD AN EVIDENTIARY HEARING TO ASSURE THAT THERE EXISTED A FACTUAL BASIS FOR THE COUNT THREE PERJURY PLEA.

POINT II - THE LOWER RULING REFLECTS MANIFEST, REVERSIBLE "PLAIN ERRORS" THAT HAVE PROLONGED A MISCARRIAGE OF INJUSTICE.

After careful consideration of the appeal record, we find that defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We make only the following comments.

Under R. 3:22-12(a), a petition for PCR for reasons other than to correct an illegal sentence must be filed within five years after sentence unless there is a showing of excusable neglect. In this case defendant's initial petition was over seven years after the date of his conviction, and there was no showing of excusable neglect or a miscarriage of justice. State v. Mitchell, 126 N.J. 565, 580 (1992). Moreover, defendant's allegations of ineffective assistance of counsel are insufficient under the test of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and State v. Fritz, 105 N.J. 42, 58 (1987). We agree with Judge Neustadter that even viewing the evidence in a light most favorable to the defendant, there was a failure to make a prima facie showing of ineffective assistance to justify an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462-63 (1992). Accordingly, we affirm substantially for the reasons set forth by Judge Neustadter in his comprehensive oral opinion of December 14, 2004.

 
Affirmed.

(continued)

(continued)

4

A-2714-04T1

March 1, 2006