STATE OF NEW JERSEY v. GREGORY COLLINS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2372-05T42372-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY COLLINS,

Defendant-Appellant.

_______________________________

 

Submitted November 28, 2006 - Decided January 5, 2007

Before Judges Coburn and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 74-02-0076.

Yvonne Smith Segars, Public Defender, attorney for appellant (Diane Toscano, Assistant Deputy Public Defender, of counsel and on the brief).

Stuart Rabner, Attorney General for respondent (H. John Witman, III, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant, Gregory Collins, appeals from an order of the Law Division entered on March 28, 2005, denying his petition for post-conviction relief (PCR). We affirm.

Defendant was charged and convicted of murder under Burlington County Indictment No. I-762-74. On August 31, 1978, defendant was sentenced to a term of life imprisonment, to be served consecutively to another life term imposed in Camden County for a murder he had committed in that county. Because the trial facts were discussed at length in our prior opinion, State v. Collins, No. A-404-78 (App. Div. April 9, 1981), it is unnecessary for us to detail the evidence against defendant for this crime. We affirmed the conviction, and on June 12, 1981, the Supreme Court denied defendant's petition for certification. State v. Collins, 87 N.J. 394 (1981).

On December 2, 2004, twenty-six years' post-conviction, defendant filed a pro se petition for PCR, arguing that he was denied effective assistance of trial counsel, contending that although he suffered from schizophrenia at the time of the offense, counsel never raised his mental health as a defense to the charge. Because defendant requested assignment of counsel to represent him on his petition for PCR, the trial court referred the matter to the Office of the Public Defender. On March 10, 2005, the Public Defender advised the trial court that it was defendant's second PCR petition and that the Office would not undertake to represent him. On March 28, 2005, Judge Schlosser issued a letter opinion denying defendant's petition stating:

On July 9, 2004, you filed an application to correct an illegal sentence. On November 8, 2004, I wrote to you to advise that your application was denied, with prejudice, and I advised you of your right to appeal. You apparently did not appeal my [o]rder.

On December 2, 2004, you filed a verified petition for post-conviction relief, and you certified that you have not filed a previous post-conviction relief petition. You were convicted of the crime of murder and sentenced on August 30, 1978. Your appeal of that conviction was unsuccessful. You wrote again on March 22, 2005.

Rule 3:22-12(a) precludes the filing of your petition . . . five years after the rendition of the sentence sought to be attacked unless the petition alleges facts showing that the delay beyond that time was due to your excusable neglect.

You suggest that excusable neglect exists. You indicate that in 2004 you learned that you were depressed after an evaluation by Dr. Kaldany at Riverfront State Prison. Further, you indicate that in 1976[] you were prescribed medication and diagnosed as Paranoid Schizophrenic.

Clearly, your medical diagnosis was known to you prior to your trial, conviction, and sentencing. You have been treating for it now for many years.

I find that no excusable neglect is shown.

Your application for post-conviction relief is denied, without prejudice. Enclosed is a copy of the order.

You may appeal this order to the Appellate Division, and you must do so within 45 days of the date of this letter.

On appeal, defendant argues that the trial court erred in denying "his first petition for post-conviction relief" without assigning an attorney to represent him, citing R. 3:22-6(a). Defendant contends that it was his first petition, and the Office of the Public Defender was willing to accept assignment in the matter.

We conclude that the argument is without merit. R. 2:11-3(e)(2). The trial court's decision of March 28, 2005, references defendant's prior application to correct an illegal sentence. Although a copy of that pleading is not contained in the record, we are satisfied from the court's letter opinion that the application was a petition for PCR. The petition was denied on November 8, 2004; and defendant was served with a copy of the order and advised of his right to appeal. No appeal was taken from that order. Accordingly, the petition of December 2, 2004, was defendant's second petition for PCR, not his first; therefore, defendant's reliance on Rule 3:22-6(a) is misplaced. We also find unpersuasive defendant's argument that the letters from the Office of the Public Defender dated March 10, 2005, and July 15, 2005, support his contention that the present petition was his first. Although both letters reference defendant, they reference a different indictment, No. 84-05-329. Accordingly, we affirm substantially for the reasons expressed by Judge Schlosser in his letter opinion of March 28, 2005.

Affirmed.

 

The petition for PCR was filed in the name of Gregory Collins, but signed in the name of Caleb M. Beyah; and the order of March 28, 2005, was captioned in the name of Caleb Malik Beyah, a/k/a Gregory Collins. Because the notice of appeal was filed solely in the name of Gregory Collins, we reference defendant under that name.

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A-2372-05T4

January 5, 2007