STATE OF NEW JERSEY v. ROBERT A. RUFF

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5245-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT A. RUFF, a/k/a ROBERT RUFF,

Defendant-Appellant.

_________________________________

April 28, 2011

Submitted April 12, 2011 - Decided

Before Judges Graves and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 80-12-0182.

Yvonne Smith Segars, Public Defender, attorney for appellant (David A. Snyder, Designated Counsel, on the brief).

Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Robert Ruff appeals the dismissal of his petition for post-conviction relief (PCR). We affirm.

In December 1980, a Cape May County grand jury returned a four-count indictment charging Ruff with armed robbery and three weapons offenses. Ruff subsequently pled guilty to one count of unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(b). On March 17, 1982, Ruff was sentenced to a five-year term of incarceration, to be served consecutive to an unrelated sentence of seven to twenty years he was then serving in Pennsylvania.

In January 1983, Ruff was sentenced to two concurrent life terms in the United States District Court for the Middle District of Pennsylvania, following a trial at which he was found guilty of interstate transportation of a stolen vehicle, conspiracy, and kidnapping. The sentence was concurrent with a five-year sentence arising out of the same conviction, but consecutive to his sentences from the state courts in Pennsylvania and New Jersey.

In March 2009, Ruff filed a pro se petition for PCR, alleging ineffective assistance of counsel with respect to the guilty plea in 1982. Ruff's assigned counsel filed a supplemental brief. Ruff argued that there was excusable neglect with respect to his failure to file the petition within five years of the date of his sentence because of his limited mental capacity and his having only recently discovered how the 1982 sentence would affect the length of his federal sentence.

Argument on the petition was heard on December 7, 2009. The PCR judge then delivered an oral opinion denying relief on the grounds that the petition was time barred, and noting that the State would be substantially prejudiced by the passage of time in the event Ruff was permitted to withdraw his guilty plea. This appeal followed the subsequent filing of the order of dismissal.

Ruff raises the following issues on appeal:

POINT ONE: THE COURT COMMITTED ERROR BY DENYING THE APPELLANT'S MOTION WITHOUT GRANTING AN EVIDENTIARY HEARING.

POINT TWO: THE COURT COMMITTED ERROR BY DENYING THE APPELLANT'S MOTION FOR POST-CONVICTION RELIEF UNDER RULE 3:22-12, AS BEING OUT OF TIME.

Having reviewed Ruff's arguments on appeal in light of the applicable law and the record before us, we find them to be without merit and not warranting discussion in a written opinion. R. 2:11-3(e)(2).

We affirm substantially for the reasons stated by Judge Susan F. Maven in her December 7, 2009 oral decision, in which she concluded that Ruff's claims were barred under Rule 3:22-12(a)(1) and that there was no showing of "excusable neglect." We add only that our review of the record leads us to conclude that enforcement of the time bar would not result in "a fundamental injustice."

Affirmed.