STATE OF NEW JERSEY v. JOHN MERILLO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN MERILLO,

Defendant-Appellant.

___________________________

March 27, 2015

Submitted March 23, 2015 Decided

Before Judges Simonelli and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 04-11-4365.

Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant John Merillo appeals from the November 15, 2012 Law Division order, which denied his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

Defendant was charged under five separate indictments with first-degree robbery, N.J.S.A. 2C:15-1(a)(1); two counts of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1(a)(1); third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); two counts of second-degree attempted robbery, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:15-1(a)(1); three counts of third-degree burglary, N.J.S.A. 2C:18-2(a)(1); two counts of fourth-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a); and third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1).

On June 6, 2005, defendant pled guilty to first-degree robbery, an amended charge of second-degree robbery, two counts of third-degree burglary, and third-degree possession of a CDS. In exchange for defendant's guilty plea, the State agreed to recommend an aggregate nineteen-year term of imprisonment with 13.75 years of parole ineligibility. On July 19, 2005, the court sentenced defendant in accordance with the plea agreement and entered judgments of conviction.

Defendant appealed his sentence. We affirmed on our Excessive Sentencing Oral Argument Calendar. State v. Merillo, No. A-3449-05 (App. Div. Jan. 15, 2008). Defendant did not file a petition for certification with our Supreme Court.

On March 30, 2011, defendant filed a PCR petition. Because the petition was untimely, to establish excusable neglect defendant argued that the five-year time limit of Rule 3:22-12(a) was tolled by the appeal of his sentence and his attempted suicide in July 2008 and placement in a mental health prison unit for ninety days thereafter. Defendant also asserted, in part, that defense counsel rendered ineffective assistance at sentencing by failing to advocate his mental health issues to support the imposition of a lesser sentence based on a finding of mitigating factor N.J.S.A. 2C:44-1(b)(4), that "[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense."1

In a November 15, 2012 written opinion, Judge Terrence Cook determined that the petition was time-barred under Rule 3:22-12(a) and defendant failed to show excusable neglect. Citing State v. Dillard, 208 N.J. Super. 722 (App. Div.), certif. denied, 105 N.J. 527 (1986), the judge first found that defendant's appeal did not stay or toll the five-year period to file a PCR petition. The judge then found that defendant had sufficient time to file a petition after his release from the mental health unit following his suicide attempt, and defendant provided no authority establishing that his mental health issues or attempted suicide tolled the five-year time period.

Addressing defendant's ineffective assistance of counsel claim, Judge Cook found that defense counsel had, in fact, argued at sentencing for a lesser term of incarceration based on defendant's significant mental health issues, psychiatric hospitalizations and drug addiction, and pointed to the pre-sentence report, which revealed that defendant had a "very severe crack/cocaine addiction," attempted suicide in February 1998, suffered from depression and anxiety, and was diagnosed with bipolar disorder. Judge Cook also found that counsel asked the judge to consider a letter defendant wrote to the court requesting a lesser sentence, and that defendant spoke at sentencing and requested a lesser sentence based on his drug addiction and psychiatric problems. Judge Cook noted that the sentencing judge considered, and rejected, these arguments before imposing the sentence. Accordingly, Judge Cook held that defendant failed to establish a prima facie claim of ineffective assistance of counsel to warrant an evidentiary hearing. This appeal followed.

On appeal, defendant raises the following contentions

POINT ONE

DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.

[POINT II]

THE TRIAL COURT ERRED IN CONCLUDING THAT DEFENDANT'S [PCR PETITION] WAS TIME[-]BARRED BECAUSE DEFENDANT'S FAILURE TO FILE HIS PETITION WITHIN FIVE YEARS OF HIS CONVICTION WAS DUE TO EXCUSABLE NEGLECT.

We have considered these contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Cook in his comprehensive and well-reasoned written opinion.

Affirmed.

1 Defendant raised other claims of ineffective assistance of counsel in his PCR petition that he did not address in his merits brief. Those claims therefore are deemed abandoned. Drinker Biddle v. Dep't of Law, 421 N.J. Super. 489, 496, n.5 (App. Div. 2011); Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2015).