STATE OF NEW JERSEY v. ANTHONY DRAKE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5240-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY DRAKE,

Defendant-Appellant.

_________________________________

Submitted June 6, 2011 - Decided June 14, 2011

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 96-05-0671.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Anthony Drake appeals from an October 20, 2009 order denying his petition for post-conviction relief (PCR). We affirm.

On February 23, 1998, defendant pled guilty to three weapons offenses: possession of an assault firearm, N.J.S.A. 2C:39-5f; possession of a weapon (handgun), N.J.S.A. 2C:39-5b; and possession of a large capacity magazine, N.J.S.A. 2C:39-3k. Before he was sentenced for those weapons offenses, defendant began serving a 210-month federal prison sentence for drug distribution.1 That sentence had commenced on January 21, 1999.

Defendant was not sentenced on the state charges until May 5, 2000. At that sentencing, his attorney asked Judge Joseph S. Conte to impose the state sentence to run concurrent to defendant's federal sentence. After considering defendant's prior criminal record and the fact that the weapons offenses were "a totally separate crime from the crime that he's serving the Federal time on," the judge declined to impose a concurrent sentence. Noting defense counsel's argument that defendant was willing to cooperate with the prosecution in some unspecified manner, the judge stated that, thus far, defendant had not provided any cooperation, but if there was cooperation in the future defendant could move for re-sentencing.

Defendant did not file a direct appeal from the 2000 sentence. Instead, he waited almost nine years before filing a PCR petition on March 3, 2009. In his petition, defendant asserted that the delay in filing the PCR was due to his inability to get a Public Defender attorney assigned to his case. Defendant further stated that his original trial attorney told him that he would appear before Judge Conte again, to have his sentence changed to a concurrent term, but that re-sentencing never took place. He did not, however, state that he pled guilty because he believed that he would receive a concurrent sentence, and the plea form contained no such promise. Defendant contended that his co-defendant received a concurrent sentence in 2002, and that, as a "first time offender" he should have been given a concurrent sentence also. Defendant did not assert that he had provided any cooperation to the prosecution.

In an oral opinion placed on the record on October 20, 2009, Judge Donald R. Venezia reasoned that defendant's challenge to his sentence should have been raised on direct appeal and was not cognizable on a PCR petition. See R. 3:22-4. He also found that an ineffective assistance PCR claim was barred by the five-year time limit set forth in Rule 3:22-12(a). He found no excusable neglect for the untimely filing, noting that defendant knew, on the day he was sentenced in 2000, that his state sentence was going to be consecutive to the federal sentence he was serving. He also found that the plea was knowing and voluntary; defendant did not object to the three-year consecutive sentence when it was imposed; and there was no basis to conclude that invoking the five-year time limit would result in a miscarriage of justice.

On this appeal, defendant raises the following contention:

DEFENDANT'S PCR PETITION SHOULD NOT HAVE BEEN PROCEDURALLY BARRED; THEREFORE, THIS MATTER MUST BE REMANDED FOR THE PCR COURT TO ADDRESS THE MERITS OF DEFENDANT'S CLAIM.

Having reviewed the record, we conclude that defendant's appellate arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm for the reasons stated in Judge Venezia's cogent opinion. We add the following comments.

Defendant's PCR petition was filed almost four years beyond the time limit set forth in Rule 3:22-12(a). It was properly denied as untimely. Moreover, a challenge to an allegedly excessive sentence (as opposed to an illegal sentence) is not cognizable on a PCR petition. See State v. Acevedo, 205 N.J. 40, 47 (2011). However, even if we consider the merits of the PCR petition, it was properly rejected.

This was not defendant's only criminal offense. By the time of the May 2000 sentencing, he was serving a seventeen and one-half year federal sentence for drug distribution. Judge Conte explained the reasons for imposing a consecutive sentence, and we find no abuse of discretion or other error in that sentencing decision. See State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). Moreover, defendant provided nothing more than vague, unsupported assertions concerning his trial counsel's alleged ineffective assistance. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Affirmed.

1 Defendant's federal judgment of conviction is not in the record. However, all parties agree that he was convicted of cocaine distribution.