STATE OF NEW JERSEY v. JOSEPH LOVETT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4496-04T44496-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH LOVETT,

Defendant-Appellant.

______________________________________

 

Submitted April 26, 2006 - Decided May 19, 2006

Before Judges Grall and Kimmelman.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 75-0606.

Yvonne Smith Segars, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, of counsel and on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (James F. Smith, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Joseph Lovett (defendant) is currently imprisoned for the federal offenses of conspiracy to distribute a controlled dangerous substance and unlawful possession of a weapon by a convicted felon. He appeals from a March 31, 2005 order that denied his application for post conviction relief. The conviction entered October 4, 1976, on his plea of guilty to atrocious assault and battery.

Defendant has already served the first sentence for the 1976 conviction. However, the 1976 conviction was used as a prior conviction to enhance defendant's federal sentence. Defendant contends that he was denied the effective assistance of counsel because no inquiry was made with respect to the psychiatric illness he allegedly suffered in 1976.

Judge Connor pointed out that the judge and defense attorney involved in the 1976 proceeding are both deceased and the court stenographer was unavailable. There was no transcript of the proceeding. Defendant's petition for post conviction relief was denied pursuant to R. 3:22-12(a).

R. 3:22-12(a) provides that no petition for post conviction relief shall be filed more than five years after the rendition of the judgment or sentence sought to be attacked. Here, the petition was filed twenty-six years after the judgment and sentence were rendered. The late filing of the petition was not due to exceptional circumstances, State v. Goodwin, 173 N.J. 583, 594 (2002), and may not now be considered. Cloaking the claim in constitutional language does not help defendant by guaranteeing relief. State v. Mitchell, 126 N.J. 565, 586 (1992).

Accordingly, we affirm the order of March 31, 2005.

 

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A-4496-04T4

May 19, 2006