STATE OF NEW JERSEY v. RICHARD LOVE

NOT FOR PUBLICATION WITHOUT THE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.

RICHARD LOVE, a/k/a

KAREEM LOVE,

Defendant-Appellant.

___________________________________________

June 12, 2014

Before Judges St. John and Leone.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-05-1961.

Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor,attorney forrespondent (AndrewR. Burroughs, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Richard Love appeals from the denial, without an evidentiary hearing, of his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. We affirm substantially for the reasons set forth by Judge Michael A. Petrolle in his comprehensive October 4, 2012 written decision.

In March 2005, defendant pleaded guilty to third-degree possession of a controlled dangerous substance with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7. In exchange, the State dismissed one count of third-degree possession of CDS (heroin) and one count of second-degree possession of CDS with intent to distribute. Defendant was sentenced to five years in state prison, with eighteen months parole ineligibility.

At the plea hearing, the judge conducted an appropriate colloquy with defendant, during which defendant admitted that he was in possession of heroin on the date in question; that he knew it was illegal to possess heroin; that he knew he was within 1000 feet of a school; and that he possessed the heroin for the purpose of selling it. The court accepted the plea and sentenced him on April 8, 2005.

During sentencing, defendant asked to be put into a drug program, a request which the court rejected because the State did not consent. Defendant also indicated he no longer wished to be represented by his current attorney and that she "had an attitude" during the proceeding. Despite defendant's belief that his attorney was not adequately representing him, counsel argued for the reduced term of four years, with eighteen months parole ineligibility, rather than the five-year sentence. Judge Petrolle disagreed with a four-year term and sentenced defendant to five years with an eighteen-month period of parole ineligibility. The judge dismissed the remaining charges. Defendant was informed of his right to appeal within forty-five days, indicated he understood his right to appeal, but would not sign the appeal rights form.

On August 11, 2011, defendant filed a pro se PCR petition to set aside his 2005 guilty plea and conviction. Defendant made the following allegations in support of his petition: (1) the trial judge violated his Due Process rights by participating in the plea negotiations; (2) the judge violated his rights by accepting a plea agreement, and then rejected that plea at sentencing and "went with an agreement . . . not giving defendant the right to withdraw[] his plea"; (3) defense counsel intentionally misinformed defendant that the prosecutor obtained statements from the co-defendants implicating defendant, in order to induce him to accept a plea; and (4) defense counsel was ineffective for failing to file numerous pretrial motions, for not conferring with defendant, and for not investigating the case.

After hearing argument on October 4, 2012, Judge Petrolle dismissed defendant's petition by written opinion and a corresponding order. The judge noted that the petition was not filed within the five-year time period set forth in Rule 3:22-12(a), and found that defendant failed to show excusable neglect for the late filing. Despite the procedural bar, Judge Petrolle also considered and rejected defendant's claims on their merits, finding that defendant had not established a prima facie case of ineffective assistance of counsel as required by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Fritz, 105 N.J. 42, 51-52, (1987).

On appeal, defendant raises the following arguments:

POINT I

THE DEFENDANT PROVIDED A FACTUAL BASIS FOR A FINDING OF EXCUSABLE NEGLECT AND IN THE INTERESTS OF JUSTICE SHOULD HAVE BEEN PERMITTED TO PROCEED WITH HIS SUBSTANTIVE POST-CONVICTION RELIEF CLAIMS.

POINT II

THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION.

POINT III

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S PARTICIPATION IN PLEA NEGOTIATIONS.

POINT IV

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY PROSECUTORIAL MISCONDUCT.

We find no merit in any of these arguments and affirm the trial judge's order denying defendant's PCR petition substantially for the reasons stated in his written decision of October 4, 2012. We add only the following brief comments.

Our courts have repeatedly held that "there are good reasons for" the time limitation of Rule 3:22-12, which "serves to respect the need for achieving finality of judgments and to allay the uncertainty associated with an unlimited possibility of relitigation." State v. Milne, 178 N.J. 486, 491 (2004) (quoting State v. Mitchell, 126 N.J. 565, 575-76 (1992)). Rule 3:22-12(a)(1) states, in relevant part, that,

no 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 fundamental injustice.

[R. 3:22-12(a)(1).]

A petitioner seeking relaxation of the time bar due to excusable neglect "must offer something more than a bare allegation." State v. Goodwin, 173 N.J. 583, 594 (2002) (citing Mitchell, supra, 126 N.J. at 580). He must allege sufficient facts or the claim is barred. Ibid.

Here, defendant alleges he established excusable neglect because he was incarcerated in federal prison and did not have access to New Jersey legal materials, and therefore was unaware of the five-year time limit. It is well established that "ignorance of the law and rules of court does not qualify as excusable neglect [under Rule 3:22-12]." State v. Merola, 365 N.J. Super. 203,218 (Law Div. 2002), aff d o.b., 365 N.J. Super. 82, 84 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

Defendant also did not establish that enforcement of the time bar would result in fundamental injustice, as required by Rule 3:22-12(a)(1). Accordingly, the trial judge correctly held that defendant failed to overcome the time bar and that the petition was therefore procedurally barred.

Defendant's additional arguments do not warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.