STATE OF NEW JERSEY v. MITCHELL WEST

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NOT FOR PUBLICATION WITHOUT THE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.

MITCHELL WEST,

Defendant-Appellant.

December 2, 2014

 

Submitted November 19, 2014 Decided

Before Judges Waugh and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-06-939.

Mitchell West, appellant pro se.

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Thomas N. Zuppa, Jr., Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Mitchell West appeals from an October 5, 2012 order dismissing his second petition for post-conviction relief (PCR) without prejudice. We reverse.

We shall not review in detail the facts and procedural history addressed at length in our opinion affirming defendant's conviction for first-degree attempted murder, second-degree possession of a weapon for an unlawful purpose, and third-degree unlawful possession of a weapon. State v. West, No. A-3402-06 (App. Div. July 21, 2009), certif. denied, 200 N.J. 475 (2009). Suffice it to say that West was convicted of the February 2005 shooting of an individual with whom he had recently been involved in an altercation. The trial court imposed an aggregate thirty-year prison sentence, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On direct appeal we affirmed defendant's conviction and extended-term sentence; however we remanded for re-sentencing on the weapons offenses.1

West timely filed his first PCR petition in March 2010, arguing ineffective assistance of trial counsel. The PCR court denied West's first petition on July 15, 2011. We subsequently affirmed the denial of West's first petition. State v. West, No. A-2049-11 (App. Div. Sept. 19, 2013).

While West's appeal from his first PCR denial was still pending, he filed a second petition in June 2012, alleging ineffective assistance of PCR counsel. Without reaching the merits, the PCR court dismissed the second petition without prejudice on October 5, 2012, "because, pursuant to [] Rule 3:22-6A(2), there is a direct appeal pending [in] the [] Appellate Division."

West appeals and presents the following point for our consideration

THE PCR JUDGE ERRED IN SUMMARILY DISMISSING DEFENDANT'S SECOND PCR PETITION.

When the PCR court has not held "an evidentiary hearing, we may exercise de novo review over the factual inferences the [PCR] court has drawn from the documentary record." State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014). We also exercise plenary review of purely legal issues. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Here, West was entitled to file a second petition, asserting ineffective assistance of PCR counsel, within one year of "the date of the denial of the first or subsequent application for post-conviction relief where ineffective assistance of counsel that represented the defendant on the first or subsequent application for post-conviction relief is being alleged." R. 3:22-12(a)(2)(C); see also R. 3:22-4(b) (stating that a second petition is barred unless, among other things, "the petition alleges a prima facie case of ineffective assistance of counsel that represented the defendant on the first or subsequent application for post-conviction relief"). The one-year period began on July 15, 2011, when the first petition was denied. Defendant timely filed his second PCR petition in June 2012.

The trial court erred in dismissing that petition on the grounds that West's appeal from the first PCR denial was pending. The Rules provide for dismissal without prejudice of a PCR petition while "a direct appeal . . . is pending," Rule 3:22-6A(2), and allow a petitioner to refile within ninety days of appellate finality, even if more than five years after entry of the judgment of conviction. R. 3:22-12(a)(3). However, an appeal from the denial of a first PCR petition is not a "direct appeal" under the Rule. Moreover, the Rule does not provide a ninety-day window for filing a second petition after finality in the appellate process involving the first petition. Rather, the one-year deadline is non-relaxable. R. 3:22-12(c).

Accordingly, because West's second PCR petition was improperly dismissed under Rule 3:22-6A(2), we vacate the October 5, 2012 dismissal order, reinstate the petition, and remand the matter to the PCR court for further proceedings.

Reversed and remanded. We do not retain jurisdiction.

1 On remand, the trial judge imposed a concurrent five-year sentence on the conviction for unlawful possession of a weapon.