STATE OF NEW JERSEY v. R.H.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0746-08T40746-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

R.H.,

Defendant-Appellant.

_______________________________

 

Submitted: May 5, 2010 - Decided:

Before Judges Axelrad and Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 90-02-146.

Yvonne Smith Segars, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, of counsel and on the brief).

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Joseph M. Napurano, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant R.H. appeals from an order of the Law Division denying his petition for post-conviction relief (PCR) and request for an evidentiary hearing in which he asserted ineffective assistance of trial and appellate counsel and a basis to avoid the time-bar of Rule 3:22-12. We affirm.

Following a six-day trial in February l992, defendant was convicted of five counts of first-degree aggravated sexual assault of his step-daughter while she was under the age of thirteen, N.J.S.A. 2C:14-2a(l), and five counts of endangering the welfare of a child, N.J.S.A. 2C:24-4a. The State presented evidence, primarily through the testimony of the victim, then nineteen, that during the almost two-year period alleged in the indictment, defendant had her perform fellatio on him more than two hundred fifty times. The victim also testified to occasional vaginal penetrations. The victim's age during the period ranged from nine to eleven years.

At sentencing on October 9, 1992, the court merged the endangering counts with the respective aggravated sexual assault counts. It then imposed an aggregate term of thirty-five years, consisting of a twenty-year term of imprisonment with a ten-year parole disqualifier on one count of aggravated sexual assault, and four concurrent fifteen-year prison terms on the remaining counts, served consecutively to the twenty-year term. Defendant filed a direct appeal challenging his conviction and sentence, which we affirmed. State v. R.H., No. A-759-92T2 (App. Div. June 9, 1995).

In July 2006, defendant filed a PCR application and was appointed counsel. He certified that his appellate attorney never advised him he had the ability to file a PCR petition so defendant did not file one "until the year 2000 when [he] learned of this ability through other sources." Defendant represented he drafted an initial PCR petition and "forwarded it to the Public Defender's Office in the year 2000," but despite his repeated inquiries, it "fell through the cracks." Therefore, defendant drafted and filed this petition. Defendant claimed it was "through no fault of [his] own" the PCR petition was not brought before the court "years ago."

Following oral argument on July l0, 2008, with defendant present, Judge Thomas Manahan denied defendant's PCR petition, memorialized in an order of July l5, 2008. The court explained that defendant's petition was time-barred under Rule 3:22-12 as filed, without excusable neglect, more than five years after the rendition of the judgment or sentence that he sought to attack. The court relied on the principles set forth in State v. Dillard, 208 N.J. Super. 722, 727 (App. Div.), certif. denied, 105 N.J. 527 (1986), that the five-year time period is not tolled while the matter is under review in the appellate courts and ignorance of the law does not constitute excusable neglect. See also State v. DiFrisco, 187 N.J. 156, 166-67 (2006) (holding that the reason the five-year time period is generally neither stayed nor tolled by an appellate or other proceeding is to "ensure that the passage of time does not prejudice the State's retrial of a defendant" and "to respect the need for achieving finality of judgments and to allay the uncertainty associated with an unlimited possibility of relitigation"); State v. Merola, 365 N.J. Super. 203, 218 (Law Div. 2002) ("Ignorance of the law and rules of court does not qualify as excusable neglect."), aff'd, 365 N.J. Super. 82 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). This appeal ensued.

Defendant raises the same arguments on appeal. He argues the court erred and abused its discretion in failing to find excusable neglect that would relax the procedural time-bar under Rule 3:22-12, and in denying him an evidentiary hearing to address his ineffective assistance of counsel claims. According to defendant, had the court properly considered his and his former wife's certifications regarding his attorney's performance and failure to withdraw as counsel, the court would have determined the "interests of justice," R. l:1-2, justified relaxation of the procedural time-bar. Defendant contends trial counsel was ineffective in failing to withdraw and then serve as a fact witness for him, and in failing to adequately advise about his penal exposure, which led defendant to reject a plea offer he otherwise would have accepted. Defendant asserts appellate counsel was ineffective by not having sufficient contact with him during the process and by failing to raise appropriate issues on appeal.

We are not persuaded by defendant's arguments and affirm substantially for the reasons articulated by Judge Manahan. We are satisfied defendant failed to allege facts demonstrating the delay in filing his PCR petition was due to "excusable neglect"; nor do the "interests of justice" demand such relief. State v. Goodwin, l 73 N.J. 583, 594 (2002). Defendant would have been time-barred even if his PCR was filed in 2000, because it would have been filed eight years after his judgment of conviction. Moreover, defendant provides no explanation for his subsequent six-year delay after he admittedly learned about the availability of the collateral relief of a PCR petition. In evaluating whether there exists a sufficient basis to relax the time-bar, the "court should consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim . . . [and] [a]bsent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay." State v. Afanador, l 51 N.J. 41, 52 (1997). Considering defendant's excuse and the fact his PCR petition was filed fourteen years after sentencing, Judge Manahan did not abuse his discretion in denying defendant relief on procedural grounds and declining to address the merits of his PCR petition.

Affirmed.

 

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6

A-0746-08T4

RECORD IMPOUNDED

May 17, 2010