STATE OF NEW JERSEY v. JAMES GURLEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3927-06T43927-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES GURLEY,

Defendant-Appellant.

___________________________

 

Submitted April 27, 2009 Decided

Before Judges Reisner and Alvarez.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 99-07-2378 and 99-09-2746.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kimmo Z. Hussain, Designated Counsel, of counsel and on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant James Gurley appeals an order dated August 25, 2006, denying him post-conviction relief (PCR). We affirm.

Defendant was charged in Camden County Indictment No. 99-07-2378 with first-degree robbery, N.J.S.A. 2C:15-1; second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1(b)(4); and third-degree threatening violence, N.J.S.A. 2C:12-3(a). A second Camden County indictment, No. 99-09-2746, charged him with first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(c); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second-degree eluding law enforcement officials, N.J.S.A. 2C:29-2(b); second-degree conspiracy, N.J.S.A. 2C:5-2; and third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1).

On June 16, 2000, defendant entered a guilty plea to the aggravated manslaughter charge in Indictment No. 99-09-2746. The recommended sentence was eighteen years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On that same date, defendant entered a guilty plea to the first-degree robbery charged in Indictment No. 99-07-2378 in exchange for a recommendation of a concurrent eighteen-year term, also subject to NERA's 85% parole ineligibility. Appropriate fines and penalties were imposed.

The supplemental NERA form, explaining that the term of imprisonment would be followed by a five-year parole supervision term, was not signed until defendant's sentence date of July 28, 2000. Neither a copy of the plea transcript nor the sentencing transcript was provided on appeal.

Defendant's PCR petition was filed on August 24, 2005, and denied on August 18, 2006. No plea or sentencing transcript was supplied to the motion judge either.

Defendant's points on appeal are as follows:

POINT I

DEFENDANT'S LATE FILING OF HIS PETITION FOR POST-CONVICTION RELIEF CONSTITUTED EXCUSEABLE (SIC) NEGLECT.

A. DEFENDANT'S DELAY IN FILING HIS PETITION FOR POST-CONVICTION RELIEF WAS MINOR.

B. DEFENDANT'S DELAY IN FILING HIS PETITION FOR POST-CONVICTION RELIEF IS NOT PREJUDICIAL TO THE PROSECUTION.

C. THE IMPORTANT (SIC) OF DEFENDANT'S CLAIM MANIFESTS GOOD CAUSE TO RELAX THE TIME BAR.

POINT II

AT HIS PLEA AND AT THE TIME OF SENTENCING, DEFENDANT NEVER AGREED TO THE FIVE YEAR PERIOD OF PAROLE SUPERVISION.

It is axiomatic that a defendant must be informed about NERA's mandatory period of parole supervision. State v. Rosado, 182 N.J. 245, 246 (2005). It is also well settled, however, as the PCR judge noted, that PCR relief must be sought no more than five years after rendition of the sentence unless the petition "alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." R. 3:22-12(a).

Defendant asserts that his delay in filing a PCR petition was "negligible" because his petition was filed twenty-seven days after the five-year filing period had expired. Defendant contends that given this asserted lack of prejudice to the State and the failure of the plea judge to inform him of the five-year period of mandatory parole supervision, it would be "an injustice" to hold him to the five-year time limitation.

These circumstances do not satisfy the rule's requirement of excusable neglect. Only exceptional circumstances permit relief from the time bar, and actual facts must be alleged in order to meet this high standard. State v. Afanador, 151 N.J. 41, 52 (1997). Defendant offers far less than is required.

Additionally, defendant's unsubstantiated assertion that NERA's mandatory parole supervision was not explained at either his plea or sentencing flies in the face of Rule 3:22-4, which bars consideration on PCR of grounds that could have been raised on direct appeal. Application of this bar to defendant's claims does not result in a fundamental injustice. R. 3:22-4. Defendant knew about the parole supervision, at the latest, when he signed the supplemental NERA plea form on his sentence date and could readily have raised the issue on direct appeal. Denial of the PCR on these grounds certainly would not be contrary to either the federal or state constitution. R. 3:22-4. As the PCR judge said:

I see nothing compelling here that would make me think that for some reason in the interest of justice, if you will, that the time should be extended. I see nothing about this application that would make me think in that direction.

As noted, this is a limited appeal (sic) here. The Court has been provided with no transcripts which would have helped me to further evaluate the situation. Such as, what the questions and answers were at the time of the plea retraxit.

We also don't have the benefit, as indicated, of the sentencing transcript which also could have, if you will, colored the situation in terms of what did or did not take place. Clearly, on the date of the sentence the document was executed in regard to the application of the No Early Release Act.

Defendant is barred by Rule 3:22-12(a) and Rule 3:22-4 from raising this belated claim.

Affirmed.

 

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A-3927-06T4

June 30, 2009