STATE OF NEW JERSEY v. A.D.-C.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4150-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

A.D.-C.,

Defendant-Appellant.

____________________________________

December 26, 2012

Submitted October 11, 2012 - Decided

Before Judges Nugent and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Accusation No. 01-10-312.

Joseph E. Krakora, Public Defender, attorney forappellant (MichaelConfusione, Designated Counsel, on the briefs).

BruceJ. Kaplan,Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant A.D.-C. appeals from an order denying his petition for post-conviction relief (PCR), which he filed more than seven years after the entry of the judgment convicting him of aggravated sexual assault. He argues that the judge who heard his PCR petition erroneously denied the petition as untimely, and compounded that error by failing to compel the State to produce its file for discovery. After considering the record in light of defendant's arguments, we affirm.

Defendant was sixteen years old when he pled guilty to the single count in an accusation charging him with aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), for committing an act of sexual penetration with a victim less than thirteen years old.1 As a factual basis for his plea, defendant explained that while he was fifteen years old, he met a girl in a mall who lied about her age, claiming to be fifteen years old. After meeting her, they talked, went to a secluded location outside of the main area of the mall, and had consensual sex.2 Following his arrest, defendant learned that the victim was less than thirteen years old. In fact, defendant and his attorney reviewed her birth certificate before defendant agreed to plead guilty.

The court sentenced defendant to a five-year term of imprisonment, and to community supervision for life, N.J.S.A. 2C:43-6.4(a). The judge also required defendant to comply with Megan's Law by registering as a sex offender, N.J.S.A. 2C:7-2(a)(1), (c) and (d); imposed mandatory fines and assessments; and ordered that defendant make restitution to the victim and her family. Defendant did not file a direct appeal. Nearly eight years later, defendant filed his PCR petition.

While the petition was pending, defendant asked the prosecutor to produce the State's file for discovery, because the Public Defender's office had lost his file. The prosecutor refused to comply with the request, explaining that defendant had filed his petition three years late, and even if his victim had lied about her age, her misrepresentation was not a defense to the crime.

Thereafter, the prosecutor moved to dismiss defendant's PCR petition because defendant had failed to assert a legally sufficient claim, and had failed to demonstrate excusable neglect for filing the petition late. Defendant opposed the motion and requested the court compel the prosecutor to produce its file for discovery.

The court granted the State's motion. The court explained that "our court rules are very clear that a petition cannot be filed more than five years after the judgment unless it alleges facts showing that the delay was due to some excusable neglect on the part of the defendant or defense counsel." The court noted that defendant had not only failed to demonstrate excusable neglect, but "[i]t's not even mentioned, frankly, in defendant's petition." The court also noted that "the late filing could be excused if denying the PCR petition would result in a denial of a defendant's constitutional rights[,] . . . lack of jurisdiction or some other significant flaw in the prosecution and conviction." The court emphasized defendant's only claim was that the victim had lied about her age, and that even if true, the victim's misrepresentation was not a defense to the offense of committing an act of sexual penetration with a person under the age of thirteen.

The court also explained that one policy reason for the time limits on filing PCR petitions was to provide finality. The court deemed that policy particularly appropriate in a case involving a victim under age thirteen who had been sexually assaulted more than five years before defendant filed the PCR petition.

Addressing the State's refusal to disclose its file, the court noted that some public records relating to the case were available to defense counsel, and defendant was "available to inform defense counsel of claims constituting excusable neglect or claims that do not require any great deal of legal expertise." The court also noted that defendant had not denied that the incident occurred. Because defendant had not attempted to demonstrate excusable neglect, had not denied that he committed the offense, and had not demonstrated any viable ground to support his PCR petition, the court granted the State's motion and dismissed defendant's petition. This appeal followed.

PCR petitions are authorized and circumscribed by Rules 3:22-1 to -13. Rule 3:22-2 provides that a PCR petition "is cognizable if based upon any of" four grounds. The four grounds are: a "[s]ubstantial denial in the conviction proceedings of [a] defendant's [federal or state constitutional rights]," lack of jurisdiction, imposition of an illegal sentence, and "[a]ny ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy." Ibid. "A petitioner must establish the right to such relief by a preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 455 (1992). Here, defendant did not even allege, let alone establish, any of those four grounds.

Defendant recognizes and acknowledges the four grounds for PCR. He reiterates what he has argued repeatedly since filing his petition: the victim lied about her age. However, defendant does not explain how the victim lying about her age falls within one of the four grounds required to make his PCR petition cognizable. It does not. The New Jersey Code of Criminal Justice provides explicitly that "[i]t shall be no defense to a prosecution for a crime under this chapter that the actor believed the victim to be above the age stated for the offense, even if such a mistaken belief was reasonable." N.J.S.A. 2C:14-5(c). Thus, defendant's mistaken belief about his victim's age, even if reasonably based upon her misrepresentation, is not a defense to the crime with which he was charged, and therefore does not fall within one of the four grounds that make a PCR petition cognizable.

Defendant argues the court erred in denying his PCR petition as time-barred. Generally, a defendant's first PCR petition must be filed within five years of the date the judgment of conviction is entered, "unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time-bar would result in a fundamental injustice." R. 3:22-12(a)(1) (emphasis added). Defendant asserts that after his release from custody he was finally able to obtain documentary evidence that his victim had misrepresented her age. He asserts that his inability to do so sooner constitutes excusable neglect.

When defendant pled guilty, he informed the court that his victim had misrepresented her age. Before pleading guilty, he and his attorney confirmed the victim's actual age by obtaining a copy of her birth certificate. Thus, the information was not newly discovered after defendant was released from custody. More significantly, as we have explained, the victim's misrepresentation of her age is not a defense to the crime defendant committed. Consequently, enforcement of the time-bar to defendant's PCR petition would not result in a fundamental injustice.

Defendant also contends that his attorney could not effectively assist him with his PCR petition without having access to the State's file, and the court therefore erred by denying his request to compel discovery of the file. We disagree.

Generally, a defendant has no right to discovery in PCR proceedings. See State v. Marshall, 148 N.J. 89, 268 (1997), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Although New Jersey courts have inherent power to compel discovery in PCR proceedings, PCR courts should invoke such power only in unusual cases. Id. at 269-70. A defendant has no "post-conviction right to fish through official files for belated grounds of attack on the judgment, or to confirm mere speculation or hope that a basis for collateral relief may exist." Id. at 270 (internal quotation marks and citations omitted).

Here, defendant has not attempted to demonstrate either that he pled guilty or was sentenced in violation of a right cognizable under Rule 3:22-2, but instead seeks to review the prosecutor's file in an attempt to find some ground for collaterally attacking his plea. In other words, defendant attempts to do precisely what our Supreme Court proscribed in Marshall. For that reason, the court properly dismissed defendant's PCR petition.

A

1 Defendant had consented to being waived up to adult proceedings and had been waived up, before he entered the guilty plea.

2 The victim claimed that she was forcibly raped.