STATE OF NEW JERSEY v. BOBBY BROWN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-06172-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BOBBY BROWN,

Defendant-Appellant.

______________________________________________________________

February 27, 2014

Submitted September 25, 2013 Decided

Before Judges Maven and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 91-05-0273.

Bobby Brown, appellant pro se.

Richard T. Burke, Warren County Prosecutor, attorney for respondent (Dit Mosco, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Bobby Brown appeals the denial of his third post-conviction relief (PCR) petition in connection with his conviction for two counts of purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1) and (2), along with thirteen other charges contained in Indictment No. 91-05-0273 returned by a Warren County grand jury.

The court imposed a sentence of death for the murder of Alice Skov, and life imprisonment with a thirty-year period of parole ineligibility for the murder of John Bell. The Supreme Court affirmed both the murder convictions and the life sentence for Bell's murder, but reversed defendant's death sentence. State v. Brown, 138 N.J. 481, 563 (1994). On remand, on March 17, 1995, the court resentenced defendant to life imprisonment with a thirty-year period of parole ineligibility. Defendant unsuccessfully appealed the sentences to an Excessive Sentencing Panel. The Supreme Court denied defendant's petition for certification. State v. Brown, 144 N.J. 587 (1996).

On April 24, 1997, defendant filed his first PCR petition, which the trial court denied. We affirmed. State v. Brown, No. A-188-99 (App. Div. February 26, 2001). Nearly ten years later, defendant filed a second PCR petition, which was originally characterized as a motion to correct an illegal sentence, for which there is no time bar. See R. 3:22-12a. The court denied the petition because both the Law and Appellate Divisions had already adjudicated defendant's illegal sentence claim. See R. 3:22-5. As to defendant's ineffective assistance of counsel claim, the court found it time barred because defendant had raised it beyond the five-year period contemplated by Rule 3:22-12. We affirmed. State v. Brown, No. A-3394-07 (App. Div. April 30, 2009).

More than two-and-a-half years later, on December 8, 2011, defendant filed his third PCR petition. The PCR judge denied the petition on June 18, 2012, finding that it was filed more than ninety days after the dismissal of defendant's second PCR petition on October 25, 2007, and more than five years after the date of the entry of the judgment of conviction on March 17, 1995. Thus, the court concluded the filing of the third petition was time barred, as the petition did not comply with Rule 3:22-12(a)(4). The present appeal followed in which defendant raises one issue:

I. THE APPELLANT SUBMIT[S] THE TRIAL COURT ERRED BY DISMISSING HIS PETITION FOR [PCR] WHERE THE COURT DID NOT STATE ITS FINDING OF FACT AND CONCLUSION OF LAW ON THE MERITS OF THE ARGUMENTS BEFORE IT IN VIOLATION OF DUE PROCESS UNDER THE FOURTEENTH AMENDMENT OF THE NEW JERSEY STATE CONSTITUION AND IN VIOLATION OF THE FIFTH AMENDMENT . . . WHERE THE CLAIMS ARE BASED UPON NEWLY DISCOVERED EVIDENCE.

Rule 3:22-4b governs second or subsequent PCR petitions. It provides that such a petition "shall be dismissed" unless (1) it is timely under R. 3:22-12(a)(2); and (2) it alleges on its face either that: (a) it relies on a new rule of constitutional law made retroactive by the United States Supreme Court or the Supreme Court of New Jersey; (b) it relies on a factual predicate that could not have been discovered earlier through the exercise of reasonable diligence; or (c) it alleges a prima facie case of ineffective assistance of counsel that represented the defendant on an earlier PCR petition.

Here, defendant asserts the appeal is based on a "Motion for Newly Discovered Evidence" pertaining to information from attorney files. Defendant, however, fails to identify the information he discovered or how it would affect the outcome of his case. Moreover, we have not been provided a copy of the third PCR petition to understand defendant's contention. Further, defendant neither sufficiently set forth a legal basis for our review in his brief, nor challenged the trial court's order dismissing the petition as time barred. Defendant's argument on appeal therefore lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

In short, defendant's third PCR petition did not satisfy the requirements of R. 3:22-4b. It was neither timely filed, nor did it adequately allege any of the aforementioned bases justifying relief. Moreover, the petition further failed to comply with the requirements of R. 3:22-12(b)(4).