STATE OF NEW JERSEY v. JOHN ROBINSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1841-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN ROBINSON,

Defendant-Appellant.

_____________________________

February 6, 2013

Submitted January 30, 2013 - Decided

Before Judges Axelrad and Haas.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 91-07-3533.

Joseph E. Krakora, Public Defender, attorney forappellant (MichaelJ. Confusione,Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant John Robinson appeals from a July 29, 2011 order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

Defendant was charged in a two-count Essex County indictment with third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10a(1) (count one), and second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5b(2) (count two). Pursuant to a plea agreement, defendant pled guilty to second-degree possession of cocaine with intent to distribute.

In accord with the negotiated plea, on July 2, 1992, defendant was sentenced to seven years in prison, concurrent to a prison term he was already serving on another matter. Appropriate fines and penalties were imposed. Defendant did not file a direct appeal from his conviction and sentence.

Almost eighteen years later, on May 7, 2010, defendant filed a PCR petition, alleging he was not aware that he had pled guilty to an intent to distribute charge; there was an inadequate factual basis for his plea; and his counsel did not file a direct appeal on his behalf. After oral argument, Judge Michael A. Petrolle denied the petition in an oral opinion.

The judge found that defendant's application was barred by Rule 3:22-12(a)(1), which provides that 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." The judge found that defendant had failed to demonstrate "any excusable neglect" because defendant had merely asserted he was not aware that he could file a PCR petition.

Although the judge found that defendant's petition was therefore time-barred, he went on to consider defendant's substantive points, finding each to be lacking in merit. Judge Petrolle found the transcript of the plea colloquy confirmed defendant was specifically advised he was pleading guilty to a distribution charge; an adequate factual basis for the plea had been provided; and a direct appeal raising either of these issues would therefore not have been successful.1 This appeal followed.

On appeal, defendant presents the following arguments:

The Court should reverse the denial of defendant's petition for post-conviction relief and remand this matter for an evidentiary hearing on defendant's claims.

1. Defendant's petition is not time barred.

2. Defendant established at least prima facie evidence of ineffective assistance of counsel.

3. At the very least, defendant's ineffective assistance claims warranted an evidentiary hearing in the court below.

We affirm for the reasons stated by Judge Petrolle, particularly as to the time bar contained in Rule 3:22-12(a)(1). In the context of post-conviction relief, a court should relax the bar "only under exceptional circumstances." State v. Mitchell, 126 N.J. 565, 580 (1992). "Absent compelling, extenuating circumstances, the burden of justifying a petition filed after the five-year period will increase with the extent of the delay." Ibid.

Defendant waited almost eighteen years to file his PCR petition. He presented no "compelling, extenuating circumstances" to justify this extraordinary delay. Defendant filed the petition only after he was sentenced on a federal drug charge on April 8, 2008. He received an extended sentence on the federal charge due to his prior State conviction.

Defendant argues he did not become aware of his right to file a PCR petition, or the legal arguments he might be able to raise, until after his federal conviction. However, it is well established that ignorance of the law or court rules is not considered excusable neglect. State v. Merola, 365 N.J. Super. 203, 218 (Law Div. 2002), aff'd o.b., 365 N.J. Super. 82 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). In addition, defendant waited two additional years after his federal conviction to file his PCR petition, which further exacerbated his already long delay. Mitchell, supra, 126 N.J. at 580.

Under these circumstances, we perceive no basis to disturb Judge Petrolle's conclusion that defendant's petition was barred by Rule 3:22-12(a)(1). We further deem defendant's arguments in support of PCR to lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

1 The judge also reviewed the transcript of the sentencing proceeding and confirmed defendant had been advised of his right to file a direct appeal at the conclusion of that hearing.