STATE OF NEW JERSEY v. THOMAS SMID

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2152-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS SMID,

Defendant-Appellant.

________________________________________________________________

April 13, 2011

Submitted January 11, 2011 - Decided

Before Judges Espinosa and Skillman.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 02-02-00425.

Law Offices of Alexander M. Iler, attorneys for appellant (Mr. Iler and Travis J. Tormey, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.

Defendant pled guilty pursuant to a plea agreement to third-degree assault by auto, N.J.S.A. 2C:12-1(c)(2) and driving while intoxicated (DWI), N.J.S.A. 39:4-50. On September 6, 2002, the sentencing court imposed an aggregate sentence of probation for eighteen months on the assault charge. The court also suspended defendant's driving privileges for six months on the DWI charge and imposed appropriate fines and penalties.

Defendant did not appeal from his convictions and sentence.

Defendant filed a PCR petition on July 24, 2009, in which he argued he was denied the effective assistance of counsel because his counsel failed to apply for pretrial intervention (PTI) and did not advise him that he would have a permanent criminal record, a result that "could potentially be avoided" if he was accepted into PTI. According to the certification defendant submitted in support of his petition, defendant's attorney "never mentioned to [him] anything about 'Pre-Trial Intervention' or 'PTI' until toward [the] end of the case when he said it was 'too late' to apply for it." Defendant does not identify when "toward [the] end of the case" was. Specifically, he does not state whether this conversation occurred before or after his sentencing. The plea form defendant executed on July 8, 2002, contained the following standard question:

5. Do you understand that if you plead guilty:

a. You will have a criminal record?

"Yes" was circled as the "appropriate answer" to this question.

The PCR court denied defendant's petition by order dated December 23, 2009. In his appeal, defendant argues that his counsel's failure to apply for PTI constituted ineffective assistance of counsel. We need not reach the merits of defendant's argument because his petition is time-barred.

Rule 3:22-12(a) provides in pertinent part:

[N]o petition shall be filed pursuant to this rule more than 5 years after the date of entry pursuant to Rule 3:21-5 of the judgment of conviction that is being challenged unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice.

Defendant seeks to avert the five-year time limit for the filing of his petition by arguing that his failure to file his petition for seven years was due to excusable neglect. "The concept of 'excusable neglect' encompasses more than simply providing a plausible explanation for a failure to file a timely PCR petition." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). To be entitled to a relaxation of the Rule based upon excusable neglect, the defendant must "allege[] facts demonstrating that the delay was due to the defendant's excusable neglect" and, if he "does not allege sufficient facts, the Rule bars the claim." State v. Mitchell, 126 N.J. 565, 576 (1992).

In this case, defendant acknowledges that he learned about the PTI program from his attorney while his case was still pending. He therefore had the requisite knowledge to bring a challenge, based upon the failures alleged now, well within the five year period. He has offered no facts to support a conclusion that his failure to do so constituted excusable neglect.