STATE OF NEW JERSEY v. JOHN W. HUNTER

NOT FOR PUBLICATION WITHOUT THE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 W. HUNTER,

Defendant-Appellant.

____________________________________

August 7, 2014

Submitted June 4, 2014 Decided

Before Judges Fuentes and Simonelli.

On appeal from Superior Court of New Jersey Law Division, Union County, Indictment No. 89-02-00296.

Joseph E. Krakora, Public Defender, attorney for appellant (Brian O'Reilly, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant John W. Hunter appeals from the order of the trial court denying his third post-conviction relief (PCR) petition. We affirm.

Commencing on October 5, 1993, defendant was tried before a jury over a period of four days and convicted of first degree aggravated sexual assault, N.J.S.A. 2C:14-2(a). The jury acquitteddefendant of the charge of third degree possession of a weapon(a blackjack)for an unlawful purpose, N.J.S.A. 2C:39-4(d). The court sentenced defendant on August 5, 1994, as a persistent offender, to a term of life imprisonment with twenty-five years of parole ineligibility. On direct appeal, we affirmed defendant's conviction and sentence in an unpublished per curiam opinion, State v. John W. Hunter, No. A-1978-94 (App. Div. Mar. 27, 1996); the Supreme Court denied defendant's petition for certification. State v. Hunter, 145 N.J. 375 (1996).

As stated earlier, this is defendant's third petition seeking PCR. Defendant filed his first PCR petition on August 7, 1996. The petition was denied by the trial court on October 9, 1998. We affirmed the trial court's order denying the PCR petition in an unpublished per curiam opinion, State v. John W. Hunter, No. A-1644-98 (App. Div. Jan. 9, 2001). Although the appellate record does not contain copies of these documents, both parties agree that defendant filed a second PCR petition which was denied by the trial court. Defendant's appeal of the denial of this second PCR petition was dismissed for lack of prosecution by order of this court. See State v. John Hunter, No. A-0899-07 (App. Div. July 21, 2008).

Defendant filed his third PCR petition sometime after 2008. Theappellate recorddoes not contain a copy of this petition, and neitherdefendant's appellatecounsel northe Statehave identified thedate itwas filed. We doknow, despitethis being his third PCR petition,defendant was assigned counsel by the trial court. The mattercame beforeJudge Joseph P. Perfilio on September 24, 2010. Afterhearing the arguments of counsel, Judge Perfilio denied the petition as untimely and barred pursuant to Rule 3:22-12(a)(2). Citing Rule 3:22-4(b), Judge Perfilio found defendant had not presented any evidence to relax the Rule's time restrictions.

Defendant now appeals raising the following arguments.

POINT I

DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL. (Not Raised Below)

A. Trial counsel was ineffective for failing to request the lesser charge.

B. Appellate counsel was ineffective for failing to argue that the trial judge should have charged the jury without a request.

C. PCR Counsel was ineffective for failing to make the correct constitutional claim at the PCR hearing below.

D. Defendant's claim is not procedurally barred.

Defendant has also filed a pro se supplemental reply brief in which he raises the following arguments:

POINT ONE

THIS IS NOT PETITIONER[']S THIRD PCR IT IS PETITIONER[']S SECOND PCR BECAUSE THE JUDGE DISMISSED THE PETITIONER[']S CLAIMS ON HIS SECOND PCR WITHOUT PREJUDICE AND MADE NO RULING.

POINT TWO

THE STATE[']S CLAIM OF FAILURE TO PROSECUTE AND THAT PETITIONER DID NOT TIMELY FILE FOR THIRD PCR IS WRONG AND THAT CLAIM CAN NOT [SIC] BE APPLIED TO PETITIONER BECAUSE PETIONER [SIC] IS STILL ON HIS SECOND PCR.

In lieu of reciting the facts underlying defendant's conviction, we incorporate by reference the facts described in our unpublished per curiam opinion affirming defendant's conviction on direct appeal. Hunter, supra, No. A-1978-94 (slip op. at 1-3). The arguments defendant raises in this appeal lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Perfilio in his oral opinion delivered from the bench on September 24, 2010.

Affirmed.