STATE OF NEW JERSEY v. CHARLES MERRITT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2152-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES MERRITT,

Defendant-Appellant.

________________________________

May 6, 2013

Submitted: April 24, 2013 Decided:

Before Judges Axelrad and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 96-07-0794.

Charles Merritt, appellant pro se.

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Mary E. Sparkman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Charles Merritt, appeals from denial of his second petition for post-conviction relief (PCR) without an evidentiary hearing. In l998 he was convicted of four counts of first-degree attempted murder, seven counts of second-degree aggravated assault, and seven counts of fourth-degree aggravated assault, in connection with an incident in which he and his brother fired into a group of people during a neighborhood dispute over a debt, and was sentenced to concurrent terms aggregating fifty years with a twenty-year parole disqualifier. We affirmed the conviction and sentence, State v. Merritt, No. A-2648-98 (App. Div. Sept. 28, 2000), and the Supreme Court denied certification, 167 N.J. 89 (2001).

We denied defendant's first PCR petition on April 6, 2010, alleging ineffective assistance of trial counsel in failing to properly cross-examine and discredit the State's key witness, make objections, and make a proper summation; and error by the court in not granting an evidentiary hearing on allegedly newly discovered evidence. State v. Merritt, No. A-5883-06 (App. Div. April 6, 2010). The Supreme Court denied certification, 203 N.J. 95 (2010).

Defendant filed a second PCR petition on February 10, 2011, challenging, in part, the trial court's decision on the admission of evidence, failure to disclose a key witness, and asserted ineffective assistance of trial counsel in not making pretrial motions and investigations. Judge Robert C. Billmeier denied the petition as woefully out of time because it was filed more than a year after the latest of the enumerated triggering dates. R. 3:22-12(a)(2). He concluded the petition further was procedurally barred under Rule 3:22-5 as the issues were raised and rejected in the prior proceedings, and Rule 3:22-4, because they could have been raised on direct appeal or in the initial PCR.

On appeal, defendant argues:

POINT I

THE PCR COURT INAPPROPRIATELY DENIED A SECOND PETITION FOR POST CONVICTION RELIEF AS BEING UNTIMELY WHEN PETITIONER SUBMITS THAT THE FIVE YEAR BAR SET FORTH IN R. 3:22-12 SHOLD BE RELAXED DUE TO PETITIONER'S EXCUSABLE NEGLECT AS TO AN IMPROVIDENTLY ISSUED ORDER THAT WAS AUTHORIZED "WITHOUT NOTICE" TO PETITIONER IN WHICH WAS AN EXTRAORDINARY CIRCUMSTANCE, THE CASE WAS ACTIVE THROUGHOUT THE COMMENICNG OF THE JUDGMENT OF CONVICTION, AND THE INTERESTS OF JUSTICE WARRANT RELAXATION OF THE TIME BAR BECAUSE OF EXCUSABLE NEGLECT.

POINT II

THE PCR COURT COMMITTED AN ERROR BY DENYING PETITIONER'S SECOND PETITION FOR PCR WITHOUT CONDUCTING AN EVIDENTIARY HEARING ON PETITIONER'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS BECAUSE FOR THE REASONS SET FORTH IN POINT I & POINT III PETITIONER HAD DEMONSTRATED A REASONABLE LIKELIHOOD OF SUCCESS ON THE MERITS.

POINT III

THE SECOND PCR COURT BELOW DENIED PEITITIONER'S ARGUMENTS THAT HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN BOTH HIS APPELLATE AND PCR ATTORNEY DID NOT RAISE THE VITAL CLAIM THAT PETITIONER'S CONSTITUTIONAL RIGHT TO BE PRESENT PURSUANT TO RULE 3:16(b) AT HIS TRIAL WAS VIOLATED WHEN THE TRIAL COURT DID NOT ADDRESS THE JURY'S QUESTION, REQUEST, OR THE READ BACK OF MATTHEW CAMPBELL'S TRIAL TESTIMONY ON THE TRIAL RECORD IN OPEN COURT ACCORDING TO RULE 1:2-2 FOR WHICH PETITIONER WAS ABSENT FOR THOSE PROCEEDINGS WHICH WERE VIOLATIONS OF BOTH N.J. CONST. ART. 1 PARA. 10, THE SIXTH AND FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

POINT IV

THE PCR COURT ERRED BY APPLYING AN ONE (1) YEAR RULE FOR WHICH THE ONE (1) YEAR RULE WAS NOT A PROVISION IN 2006, BUT ENACTED ON FEBRUARY 1, 2010 PURSUANT TO R. 3:22-12(A) TO DENY PETITIONER'S SECOND OR SUBSEQUENT PCR PETITION WIHTOUT COMPLETELY ADDRESSING BOTH LETTER BRIEFS, WITHOUT ORAL ARGUMENT, OR WITHOUT AN EVIDENTIARY HEARING.

POINT V

THE PCR COURT ERRED IN DENYING PETITIONER'S PETITION WHEN REASONING THAT PETITIONER WAS WELL OVER THE ONE (1) YEAR TIME PERIOD WHEN THE NEW FEBRUARY 1, 2010 PCR RULE SHOULD HAVE FURNISHED A GRACE PERIOD.

POINT VI

THE SECOND PCR COURT ERRED BY NOT GRANTING RELIEF ON PETITIONER'S CLAIMS THAT HE WENT TO TRIAL BASED ON HIS INNOCENSE AND THE DISCOVERY PACKAGE FOR WHICH PROSECUTORIAL MISCONDUCT WAS CONTRARY TO THE CONSTITUTION OF NEW JERSEY AND UNITED STATES.

POINT VII

THE SENTENCE IMPOSED BY THE COURT BELOW VIOLATED THE SENTENCE AUTHORIZED BY LAW AND PETITIONER'S CONSTITUTIONAL RIGHTS THAT ARE GUARANTEED BY THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENT.

Based on our review of the record and applicable law, we deem these arguments without merit. They do not warrant any discussion in addition to the comments set forth in the trial court's written opinion of October 17, 2011. R. 2:11-3(e)(2).

Affirmed.