STATE OF NEW JERSEY v. DAWN WILSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0952-05T50952-05T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAWN WILSON,

Defendant-Appellant.

____________________________________

 

Submitted January 23, 2007 - Decided April 19, 2007

Before Judges Payne and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Ind. No. 99-05-0508.

Dawn Wilson, appellant pro se.

Stuart Rabner, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Dawn Wilson, a self-represented litigant, appeals from the May 4, 2005 order denying her petition for appointment of counsel and the September 18, 2005 denial of her second petition for post-conviction relief (PCR). We affirm.

Defendant had been charged with murder, N.J.S.A. 2C:11-3a(1) or (2); first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree burglary, N.J.S.A. 2C:18-2; third-degree possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-4d, and third-degree possession of a controlled dangerous substance, (cocaine), N.J.S.A. 2C:35-10a. On August 4, 1999, defendant had entered a retraxit plea of guilty to an accusation, which charged her with first-degree felony murder, N.J.S.A. 2C:11-3a(3), as part of a plea agreement in which the State agreed to dismiss all other charges. A sentence of thirty years in prison without parole eligibility was imposed on October 18, 1999, along with applicable assessments and penalties. Defendant filed no direct appeal. We affirmed the denial of defendant's first PCR petition in our unreported opinion, State v. Wilson, No. A-2990-01T4 (App. Div. June 24, 2003). Certification was denied. State v. Wilson, 178 N.J. 249 (2003).

Defendant appeals the trial court's denial of her request for appointment of counsel to aid in the presentation of this petition as well as the denial, after review of the substance, of this, her second PCR petition, pursuant to Rule 3:22-5.

Rule 3:22-6(a) requires that "the first petition for post-conviction relief must be referred to the Office of the Public Defender if the petitioner's conviction was for an indictable offense unless the petitioner affirmatively states [her] intention to proceed pro se." State v. King, 117 N.J. Super. 109, 111 (App. Div. 1971) (emphasis omitted). This rule is mandatory. State v. Ellis, 116 N.J. Super. 330, 334 (App. Div. 1971); see also State v. Clark, 260 N.J. Super. 559, 562 (App. Div. 1992). "Upon any second or subsequent petition filed . . . attacking the same conviction, the matter shall be referred to the Office of the Public Defender only upon . . . showing of good cause." R. 3:22-6(b). We infer the trial court made such a finding when denying defendant's request for representation. This is supported by the court's denial of the defendant's second petition for PCR, because it was time barred, having been filed more than five years after the entry of the October 18, 1999 judgment of conviction. R. 3:22-12(a). No explanation accompanied the filing to justify the delay due to excusable neglect. Ibid.

Additionally, our review of the substantive issues raised in the present petition determines that they are substantially equivalent to the claims previously raised and adjudicated. In our prior opinion we concluded "[w]e are satisfied that there was insufficient basis for a mental deficiency defense or for an intoxication defense. The record reflects that trial counsel was fully aware of the extensive evidence against Wilson and counsel explored viable defenses with Wilson before she pled guilty." In denying defendant's initial PCR, we were "satisfied that not only did Wilson receive competent representation at the plea and sentencing proceedings, but also at the post-conviction relief proceedings." Nothing contained in the present submission modifies this conclusion. Defendant's present petition re-presents arguments previously advanced and adjudicated on the merits. R. 3:22-5.

Affirmed.

 

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4

A-0952-05T5

April 19, 2007