STATE OF NEW JERSEY v. FRANCISCO REYES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3384-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANCISCO REYES,

Defendant-Appellant.

_________________________________

January 28, 2011

Submitted January 5, 2011 - Decided

Before Judges Axelrad and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 90-01-0270.

Yvonne Smith Segars, Public Defender, attorney for appellant (Andrew P. Slowinski, Designated Counsel, of counsel and on the brief).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/ Assistant Essex County Prosecutor, on the brief).

PER CURIAM

Defendant Francisco Reyes appeals the denial of his application for post-conviction relief (PCR) on procedural and substan tive grounds. Because the application was clearly time-barred, we affirm.

In an eleven-count indictment, defendant was charged by an Essex County Grand Jury on January 18, 1990, with three instances of first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1); one instance of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3); two instances of second-degree sexual assault, N.J.S.A. 2C:14-2(b); two instances of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a)(3); one instance of third-degree terroristic threats, N.J.S.A. 2C:12-3; and two instances of fourth-degree endangering the welfare of a child, N.J.S.A. 2C:24-4. At the time, the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, had not yet been adopted.

On May 21, 1990, defendant pled guilty to one count of first-degree kidnapping and one count of first-degree aggravated sexual assault. In exchange, the State promised to dismiss all of the remaining charges, and to recommend a term of imprisonment not to exceed twenty years, with ten years of parole ineligibility. In his sworn plea allocution, defendant acknowledged that he would be examined at the Adult Diagnostic and Treatment Center (ADTC) and that he might be required to serve his sentence at the ADTC in Avenel, where the normal parole guidelines would not apply. Defendantmoved towithdraw his plea, but his motion was denied on October 11, 1991.

Defendant was sentenced on February 24, 1992. By that time, the ADTC determined that he was a not a repetitive and compulsive offender and that he would not serve his imprisonment in Avenel and not be specially classified for parole. The sentencing court imposed the plea agreement's term of twenty years with a ten-year period of parole ineligibility.

Defendant appealed his conviction on the ground that the sentence was excessive. We affirmed the judgment of conviction on October 19, 1993.

On December 23, 2002, defendant completed the mandatory ten-year period of parole ineligibility and he was transferred to the Special Treatment Unit (STU) in Kearny as a sexual predator under the SVPA. Defendant waited more than five years after the transfer to the STU to file his pro se application for PCR on July 21, 2008. The matter was heard and denied on October August 21, 2009, and this appeal followed.

Defendant raises the following arguments on appeal:

POINT I: THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS THE RETROACTIVE APPLICATION OF THE SEXUALLY VIOLENT PREDATOR ACT TO DEFENDANT RENDERS DEFENDANT'S GUILTY PLEA INVOLUNTARY AND INVALID.

POINT II: THE PCR COURT SHOULD HAVE HELD THAT RETROACTIVE ENFORCEMENT OF THE SVPA CONSTITUTES A BREACH BY THE STATE OF ITS PLEA AGREEMENT WITH DEFENDANT.

POINT III: THE PCR COURT SHOULD HAVE HELD THAT RETROACTIVE ENFORCEMENT OF THE [SVPA] VIOLATES THE EX POST FACTO CLAUSES OF THE STATE AND FEDERAL CONSTITUTIONS.

POINT IV: DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD NOT BE PROCEDURALLY BARRED BY RULE 3:22-2.

POINT V: DEFENDANT'S PETITION FOR PCR SHOULD BE GRANTED FOR THE REASONS SET FORTH IN DEFENDANT'S PRO SE BRIEF IN SUPPORT OF HIS PETITION.

Applications for PCR, "'New Jersey's analogue to the federal writ of habeas cor pus,'" State v. Milne, 178 N.J. 486, 491 (2004) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)), are governed by Rule 3:22. PCR is not a substitute for direct appeal. R. 3:22-3. An application for PCR may not be filed more than five years after the judgment or sentence attacked "unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." R. 3:22-12(a)(1). Such a claim must be made in the application and allege facts sufficient to support it. State v. Cann, 342 N.J. Super. 93, 102 (App. Div.), certif. denied, 170 N.J. 208 (2001). No such showing has been made here.

We have applied this rule to bar review of untimely PCR petitions. See State v. Cummings, 321 N.J. Super. 154, 166-67 (App. Div.) (difficulty reading and writing and ignorance of right to seek PCR does not excuse late petition), certif. denied, 162 N.J. 199 (1999); State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div. 1998) (mistake of law does not amount to excusable neglect; petition filed beyond five years barred), aff'd as modified, 162 N.J. 240 (2000); State v. Dugan, 289 N.J. Super. 15, 22 (App. Div.) (finding same), certif. denied, 145 N.J. 373 (1996); State v. Miller, 277 N.J. Super. 122, 125, 129 (App. Div. 1994) (petition filed six and one-half years after conviction time-barred), certif. denied, 142 N.J. 449 (1995); State v. Jenkins, 221 N.J. Super. 286, 293 (App. Div. 1987) (petition filed more than five years after judgment of convic tion time-barred), cer tif. denied, 113 N.J. 344 (1988), cert. denied, 488 U.S. 1032, 109 S. Ct. 843, 102 L. Ed.2d 975 (1989).

Affirmed.

1 We also observe that the application for PCR was filed more than seventeen years after the judgment of conviction.