STATE OF NEW JERSEY v. WILLIAM DUNLAP

NOT FOR PUBLICATION WITHOUT THE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.

WILLIAM DUNLAP, a/k/a MICHAEL

WILLIAMS,

Defendant-Appellant.

___________________________________

December 9, 2014

Submitted November 18, 2014 Decided

Before Judges Ostrer and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Accusation No. 00-04-1275.

Edward J. Crisonino, attorney for appellant.

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Natalie A. Schmid Drummond, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant William Dunlap appeals from the trial court's May 13, 2013, order denying his May 2010 petition for post-conviction relief (PCR). The petition is defendant's second. Defendant again challenges his June 2, 2000, judgment of conviction for aggravated manslaughter, N.J.S.A. 2C:11-4(a). Defendant pleaded guilty to a single-count accusation, and was sentenced, consistent with his plea agreement, to a twenty-three year sentence. The court imposed an eighty-five percent parole bar and a five-year period of parole supervision, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant asserts that he was not told before entering his plea that he would be subject to five years of parole supervision. He contends that had he been informed, he would not have accepted the plea agreement. Having reviewed defendant's arguments in light of the facts and applicable legal principles, we affirm.

Defendant did not file a direct appeal of his conviction or sentence. In 2000, he filed an unsuccessful motion before the trial court for reconsideration of his sentence. That same year, he filed a pro se PCR petition, which he voluntarily dismissed in 2002. Through counsel, defendant filed an amended petition in November 2006. In that first petition, defendant presented the same contention that he asserts in his second petition; that is, he was uninformed that he would be subject to a five-year period of parole supervision.1

After a non-testimonial hearing, the trial court denied the petition by order entered on January 16, 2007. We affirmed the trial court's order. State v. Dunlap, No. A-5057 06 (App. Div. July 24, 2008) (Dunlap I), certif. denied, 197 N.J. 16 (2008). We held that defendant had presented only a bare allegation that he was uninformed of the five-year period of parole supervision. Citing State v. Johnson, 182 N.J. 232, 244 (2005), we also held that defendant failed to assert that he would not have accepted the plea agreement if he had been so informed. Dunlap I, supra, slip op. at 5-6. Consequently, defendant failed to demonstrate a reasonable probability "that the outcome of this matter would have been different." Id. at 7. In other words, defendant did not satisfy the second prong of the Strickland-Fritz test. See Strickland v. Washington, 466 U.S. 668, 688-89, 693-95, 104 S. Ct. 2052, 2064-65, 2067-68, 80 L. Ed. 2d 674, 693-94, 697-98 (1984) (stating that, to obtain post-conviction relief based on ineffective assistance of counsel, a petitioner must show that (1) counsel's performance was objectively deficient, falling outside the wide range of reasonable professional assistance, and (2) that counsel's performance created a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey).

Defendant filed his second petition, supported by a May 7, 2010, affidavit that was silent on the issue of the period of parole supervision. Defendant then filed a second affidavit on October 13, 2011, asserting for the first time, "I was never told that after completing my sentence I would be subject to five years of supervision. . . . If I had been told about the five years of supervision I would not have accepted the plea agreement."

Judge Michelle M. Fox denied defendant's second petition after a non-testimonial hearing. After reviewing the background set forth above, Judge Fox concluded that defendant's petition was procedurally barred on two grounds. First, defendant's petition was barred by Rule 3:22-5, which states that "[a] prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule . . . ." Defendant sought relief on the same basis presented in his first petition the alleged failure to inform him of the five-year period of parole supervision.

Secondly, defendant's petition was time-barred under Rule 3:22-12, which provides that a petition shall be filed no more than five years after entry of the challenged judgment. Judge Fox found no excusable neglect or other exceptional circumstances that would justify relaxing the time-bar.

On appeal, defendant asks us to consider the following point: "THE DEFENDANT'S PETITION SHOULD HAVE BEEN GRANTED AS HE DID NOT ENTER A KNOWING AND VOLUNTARY PLEA."

We affirm substantially for the reasons set forth in Judge Fox's oral opinion. We add the following brief comments.

We recognize that defendant attempted, in his May 2011 affidavit, to supply the assertion that he omitted, to his detriment, in his first petition: that he would not have pleaded guilty if he had been informed of the five-year period of parole supervision. Defendant conceivably could have argued that the omission in his first petition was the product of ineffective assistance by his first PCR counsel.

However, defendant's second petition was still filed too late. Defendant was obliged to file his second petition within one year of alleged ineffective assistance of PCR counsel

[N]o second or subsequent petition shall be filed more than one year after the latest 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).]

In this case, defendant's omission of an allegation of prejudice was apparent when we issued our decision in Dunlap I in July 2008. Yet, defendant did not file his second petition until May 2010, almost two years after our decision, and over eighteen months after the Supreme Court denied certification. Moreover, defendant did not correct the omission and assert prejudice from the alleged failure to inform until October 2011, over three years after Dunlap I. Consequently, defendant's second petition is time-barred.

Affirmed.

1 Defendant presented other collateral challenges to his conviction, which are not relevant to the present appeal. We therefore do not address them.