STATE OF NEW JERSEY v. JOHN DOW

NOT FOR PUBLICATION WITHOUT THE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 DOW,

Defendant-Appellant.

________________________________________________________________

August 1, 2013

Submitted May 20, 2013 Decided

Before Judges Fasciale and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 93-07-1182.

Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the briefs).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Patricia B. Quelch, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant John Dow appeals from the denial of his third petition for post-conviction relief (PCR). We affirm.

In December 1994, a jury convicted defendant of capital murder, felony murder, robbery, burglary, aggravated arson, and aggravated assault. He was sentenced January 20, 1995, to serve an aggregate term of seventy-five years in state prison with a thirty year period of parole ineligibility. The convictions and sentence were affirmed on appeal. State v. Dow, No. A-5331-94 (App. Div. Dec. 3, 1998).

Defendant filed this amended third petition for PCR1 on December 28, 2010, almost sixteen years following entry of the judgment of conviction, contending that trial, appellate and PCR counsel rendered ineffective assistance of counsel. He claimed that counsel failed to object to: (1) the admission of prior "bad acts" evidence under N.J.R.E. 404(b); (2) hearsay statements of certain witnesses; and (3) cross examination of defendant's expert regarding defendant's propensity for violence.

The Honorable Ronald L. Reisner, J.S.C., heard oral argument on July 29, 2011, and issued a written opinion dismissing the petition for several reasons. The judge ruled that the petition was time barred, R. 3:22-12, having been filed after the statutorily prescribed five year period, and was not factually supported with a showing of excusable neglect. Relying on State v. Mitchell, 126 N.J. 565, 584 (1992), the judge found that defendant failed to demonstrate the existence of a true injustice to warrant relaxation of Rule 3:22-4. On the merits, the judge determined that defendant's asserted claims of counsel error either could have been raised or had been addressed on direct appeal and thus, cannot be litigated anew in this petition. Ultimately, the judge found that defendant failed to satisfy the two prong Strickland/Fritz2 standard as applied to the performance of his appellate and PCR counsel. This appeal followed.
On appeal, defendant raises the following claims:

I. THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

A. Trial Counsel Failed to Raise Objections to Testimony Which Violated the Rule Against Hearsay and the Confrontation Clause of the United States and New Jersey Constitutions.

B. Trial Counsel Failed to Object to Prior "Bad Acts" Evidence Admitted in Violation of N.J.R.E. 404(b).

II. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN HIS PCR PETITIONS.

III. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

IV. THE LOWER COURT ORDER MUST BE REVERSED SINCE CUMULATIVE ERRORS DEPRIVED DEFENDANT OF DUE PROCESS.

V. THE LOWER COURT ORDER MUST BE REVERSED SINCE THE FIVE-YEAR TIME BAR OF [RULE] 3:22-12 SHOULD NOT BE APPLIED TO BAR DEFENDANT'S CLAIMS.

VI. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER [RULE] 3:22-4.

VII. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS AREA NOT PROCEDURALLY BARRED UNDER [RULE] 3:22-5.

VIII. THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

We reject these contentions and affirm substantially for the reasons expressed by Judge Reisner in his comprehensive thirty-two page opinion dated September 6, 2011. We add only that we agree with Judge Reisner that this third petition was procedurally barred because defendant filed this petition almost sixteen years after entry of the judgment of conviction and more than ten years beyond the five-year time limitation established by Rule 3:22-12. The judge correctly concluded that defendant failed to establish excusable neglect or exceptional circumstances such that strict adherence to the five-year time bar would result in an injustice.

1 We affirmed the denials of the first two PCR petitions in State v. Dow, No. A-4793-99 (App. Div. May 6, 2002), and State v. Dow, No. A-3836-03 (App. Div. June 9, 2005).

2 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) (stating that (1) "defendant must show that counsel's performance was deficient;" and (2) "the deficient performance prejudiced the defense"); see also State v. Fritz, 105 N.J. 42, 67 (1987) (adopting the Strickland standard in New Jersey).