STATE OF NEW JERSEY v. DOMINICK J. ATTINO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3751-08T43751-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DOMINICK J. ATTINO,

Defendant-Appellant.

________________________________________________________________

 

Submitted July 6, 2010 - Decided

Before Judges Lisa and Fuentes.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 98-03-0414.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from an order denying his petition for post-conviction relief (PCR). The subject of the petition was a conviction entered on August 7, 1998 for third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. Defendant filed his PCR petition on August 23, 2005. Judge Mellaci found the petition deficient because it was time barred, and, alternatively, because it was lacking in substantive merit. The judge did not grant an evidentiary hearing.

On appeal, defendant argues:

POINT ONE

THE TRIAL COURT ERRED IN CONCLUDING THAT DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WAS TIME BARRED BECAUSE DEFENDANT'S FAILURE TO FILE HIS PETITION WITHIN FIVE YEARS OF HIS CONVICTION WAS DUE TO EXCUSABLE NEGLECT AND BECAUSE THE INTERESTS OF JUSTICE WARRANT RELAXATION OF THE TIME BAR.

POINT TWO

PLEA COUNSEL WAS INEFFECTIVE BECAUSE HE MISINFORMED DEFENDANT ABOUT THE CONSEQUENCES OF COMMUNITY SUPERVISION FOR LIFE.

POINT THREE

AT THE VERY LEAST, DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING.

We reject the argument in Point One and affirm the order denying defendant's PCR petition on the ground that it was time barred. In light of that disposition, it is not necessary for us to address Points Two and Three.

Pursuant to a plea agreement, defendant pled guilty on March 27, 1998 to an accusation charging him with third-degree endangering the welfare of a child, involving sexual conduct, in violation of N.J.S.A. 2C:24-4a. Sentence was imposed on August 7, 1998. The sentence included a requirement that defendant would be subject to community supervision for life (CSL). When defendant pled guilty, he completed a plea form acknowledging that CSL would be part of his sentence. In pronouncing sentence, the judge stated that defendant was sentenced to CSL, and his judgment of conviction so provided.

On October 27, 2000, defendant pled guilty to violating probation, based upon the conviction that is the subject of this appeal. He was resentenced on that date to five years imprisonment. That sentence was later reduced to four years, and then further reduced to three years.

On August 19, 2003, as defendant was about to be released from State prison, he signed a form setting forth the general conditions of CSL, thus acknowledging his understanding of those conditions. He was released on August 22, 2003.

On March 9, 2004, defendant was indicted for violating CSL by failing to refrain from using a controlled dangerous substance without the required prescription. Defendant pled guilty to the offense and was sentenced on February 14, 2005 to eighteen months suspension of sentence, subject to various conditions, including compliance with CSL.

On August 23, 2005, defendant filed his PCR petition. On August 29, 2005, the trial court summarily denied the petition because it did not allege an illegal sentence and it failed to make a showing of excusable neglect sufficient to relax the five-year time bar of Rule 3:22-12. In an unpublished opinion, we reversed and remanded, not on the merits, but because defendant had not been assigned counsel, to which he was entitled for his first PCR petition. State v. Attino, No. A-3201-05 (App. Div. January 29, 2007). On remand, counsel was assigned, and the matter came before Judge Mellaci.

In his pro se petition, defendant said no one had ever explained to him at the time of his plea or sentence the "actual details" of CSL. He then stated that he "didn't find out about these aspects until [he] was imprisoned in 2000 and was getting ready to be paroled, which actually wasn't until 2001." After our remand and the assignment of counsel, defendant filed a supplemental certification on March 31, 2008, in which he stated that he "first was advised of the conditions of [CSL] on or about August 19, 2003, when [he] was first asked to sign the notice of conditions." Defendant further asserted that had he known of the CSL conditions, he would not have pled guilty to the endangering charge.

Judge Mellaci found no basis for relaxing the five-year time bar. He found that defendant failed to provide sufficient facts to demonstrate excusable neglect, and that failing to relax the time bar would not result in a manifest injustice. The judge noted that, giving defendant the benefit of the doubt as to his own factual assertions, he admitted to being fully aware of the CSL conditions no later than August 19, 2003. The judge reasoned: "Certainly, although any filing after August 7, 2003 would have been at least technically out of time, defendant waited a full two years additionally before filing this petition, and after signing an acknowledgment of their terms and a recognition that same would be supervisory parole." He therefore concluded that "[s]urely 'excusable neglect' cannot be used for this additional two-year delay."

We agree with Judge Mellaci's analysis. Defendant has demonstrated no basis for relaxation of the five-year time bar imposed by Rule 3:22-12(a). State v. Goodwin, 173 N.J. 583, 594 (2002); State v. Mitchell, 126 N.J. 565, 580 (1992). Relaxation of the time bar should be allowed only upon the demonstration of exceptional circumstances. Goodwin, supra, 173 N.J. at 595. And, a defendant's burden to support relaxation of the five-year time bar increases with the length of the delay beyond five years. Mitchell, supra, 126 N.J. at 580. With the passage of time, the ability to achieve justice becomes more elusive and the necessity for preserving finality of judgments increases. Id. at 575-76.

Defendant's PCR petition was filed seven years after his judgment of conviction and at least two years after he admittedly became familiar with the conditions of CSL. Defendant received a substantial benefit from his plea agreement, which included the dismissal of serious second and third-degree charges. At the time of the offense, defendant was twenty-nine years old and engaged in sexual improprieties with a fifteen-year-old girl. The charges against him alleged penetration. The accusation charging a less serious offense of third-degree endangering was part of the plea negotiation process. If the plea were vacated at this time, the State would encounter substantial prejudice in having to try defendant. Substantial prejudice would also fall to the victim, assuming she could be located, if she were required to relive this experience many years later by testifying at trial. "Achieving 'justice' years after the fact may be more an illusory temptation than a plausibly attainable goal when memories have dimmed, witnesses have died or disappeared, and evidence is lost or unattainable." Mitchell, supra, 126 N.J. at 575.

Finally, defendant's contention that the time bar should be relaxed because he did not know he could file a PCR petition until after he was indicted for violating the conditions of CSL is to no avail. Ignorance of the law does not constitute excusable neglect under Rule 3:22-12. State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div. 1998), aff'd as modified, 162 N.J. 240 (2000).

 
Affirmed.

The judge imposed a probationary sentence, but included a 364-day county jail component, which had not been provided for in the plea agreement. Because defendant was incarcerated in county jail on other charges, this was of no consequence. A motion was later made to clarify or correct the sentence, which was denied. These events have no bearing on the issues before us on this appeal.

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A-3751-08T4

July 26, 2010