STATE OF NEW JERSEY v. ALLABYE E. PARKER

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0549-07T40549-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALLABYE E. PARKER n/k/a

ALYAS MUHAMMAD BADU-SHABAZZ,

Defendant-Appellant.

 

Submitted May 19, 2009 - Decided

 
Before Judges Winkelstein and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 89-11-4660-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jeffrey R. Jablonski, Designated Counsel, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Allabye Parker, appeals from a June 29, 2007 order denying his petition for post-conviction relief (PCR). We affirm.

As a result of an incident on December 22, 1988, defendant, who was eighteen years old, was charged with sexually assaulting a three-year-old child. An Essex County grand jury indicted him on November 8, 1989, charging him with three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a (counts one, two and three), and one count of fourth-degree endangering the welfare of a child, N.J.S.A. 2C:24-4 (count four). Pursuant to a plea agreement, defendant pleaded guilty to counts three and four of the indictment; on December 14, 1990, the trial court merged count four into count three, dismissed counts one and two, and on count three imposed an indeterminate term, with a ten-year maximum, at the Youth Correctional Institutional Complex at Yardville. Although the record is not clear exactly when, sometime after defendant was paroled, the State civilly committed him under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38.

Subsequently, on June 12, 2006, defendant filed his PCR petition, in which he argues that he received ineffective assistance of counsel because his trial counsel did not explain the charges to him, failed to advise him of the possibility of being civilly committed under the SVPA, failed to contact him when the SVPA was enacted to advise him of the change in the law, and did not explain that the person bringing him the plea form was the prosecutor. Further, defendant argues that his trial attorney should have obtained medical records to ensure that the victim's injuries were consistent with the charges and should have had bed sheets that police had confiscated tested for DNA evidence. Defendant also argues that he did not understand the consequences of the plea agreement.

Defendant certifies that at the time of the plea hearing, he was undergoing detoxification from drugs and alcohol and as a result "was not aware of what was happening to" him and thought he was pleading guilty to robbery and not to aggravated sexual assault and endangering the welfare of a minor. He contends that he could not read or write at the time of his plea. Further, he alleges that his attorney failed to contact him prior to the plea hearing and sentencing, and at sentencing, "[his attorney] leaned in to [defendant] and told [him] that [he] would simply go to the prison and immediately see the parole board and be released because [he] had significant amount of time in custody on the robbery [charge]."

Defendant also submits that the transcripts of his plea hearings have typographical errors, and he told the trial judge that he could not read or write and that he had not reviewed the plea form with his attorney. Defendant also claims that he does not remember being asked a significant number of questions during the plea agreement, such as whether or not anyone had threatened him into pleading guilty.

At the PCR proceeding, Judge Kennedy denied defendant's petition on both procedural and substantive grounds. We agree with the judge's analysis and affirm substantially for the reasons he placed on the record on June 29, 2007. Defendant's arguments to the contrary are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.

Aside from a petition to correct an illegal sentence, which may be filed at any time, a PCR petition must be filed within five years of "rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." R. 3:22-12. Usually, "the five-year period commences from the time of the conviction or the time of the sentencing, whichever the defendant is challenging." State v. Milne, 178 N.J. 486, 491 (2004) (internal quotation omitted). The time limit may be relaxed "if the defendant alleges facts demonstrating that the delay was due to the defendant's excusable neglect or if the interests of justice demand it." Id. at 492 (internal quotation omitted). To warrant relaxation under Rule 3:22-12, a defendant "must offer something more than a bare allegation," and must "articulate[] facts that demonstrate a serious question about his or her guilt and [be] prepared to provide factual evidence to support" his argument. State v. Cummings, 321 N.J. Super. 154, 168 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Here, defendant delayed filing a PCR petition for over fifteen years from the date he was sentenced. Aside from presenting multiple allegations, he has articulated no facts to demonstrate a serious question about his guilt, or a reason for his delay in filing his PCR petition. Accordingly, we agree with the trial judge that defendant has established no basis for relaxing the five-year time bar imposed by Rule 3:22-12.

We affirm.

 

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A-0549-07T4

June 8, 2009