STATE OF NEW JERSEY v. PERCY SELLES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5235-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PERCY SELLES,

Defendant-Appellant.

_________________________________

October 10, 2014

Submitted September 30, 2014 - Decided

Before Judges Hoffman and Whipple.

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

00-10-01349.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, 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, on the brief).

PER CURIAM

Defendant appeals from the trial court's denial of his petition for post-conviction relief on March 1, 2012. Defendant argues

DEFENDANT's PCR PETITION SHOULD NOT HAVE BEEN TIME-BARRED; THEREFORE, THIS MATTER MUST BE REMANDED FOR THE PCR COURT TO ADDRESS DEFENDANT'S SUBSTANTIVE CLAIMS.

We have considered this argument in light of the record and applicable legal standards. We affirm.

On October 25, 2000, defendant Percy Selles, Ariel Fernandez, and Andres Sanabria were charged in a twenty-seven count indictment with various offenses in connection with a brutal sexual assault upon a woman in Elizabeth.

On March 27, 2002, a jury found defendant guilty of first degree kidnapping, second-degree burglary, first-degree sexual assault, third-degree aggravated assault, fourth-degree aggravated assault with a gun, first-degree robbery, first-degree aggravated sexual assault, third-degree possession of a weapon for an unlawful purpose, and second-degree conspiracy.

On October 11, 2002, defendant was sentenced to an aggregate thirty-three year custodial term with a twenty-five year period of parole ineligibility.

In 2007, we affirmed the convictions but remanded for resentencing in light of State v. Natale, 184 N.J. 458, 466 (2005). State v. Selles, No. A-1577-02 (App. Div. April 13, 2007) (slip op. at 12). On remand, the same sentence was imposed.

On July 20, 2009, over six and a half years after the original sentencing, defendant filed a petition for post-conviction relief, claiming ineffective assistance of counsel in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article One of the New Jersey Constitution. Defendant claimed that his petition should not be procedurally barred because enforcing the five-year time bar of Rule 3:22 12(a)(1) would result in manifest injustice.

The petition was denied as untimely filed by the trial court, because defendant did not provide facts showing excusable neglect or establishing that enforcement of the procedural bar would result in fundamental injustice.

On appeal, defendant argues that the trial court erred in denying his petition without first relaxing or dispensing with the procedural bar of Rule 3:22 12(a)(1) to avoid injustice.

No petition for post-conviction relief can be filed more than five years after the date of entry of the judgment of conviction being challenged, unless the petition "alleges facts showing that the delay beyond said time was due to defendant's excusable neglect" and shows that, if the facts are found to be true, "there is a reasonable probability that . . . enforcement of the time bar would result in a fundamental injustice." R. 3:22 12(a)(1). The rule serves the two important interests of 1) preventing prejudice to the State's case as memories fade, witnesses become unavailable, and evidence is lost, and 2) respecting the finality of judgment so as to "allay the uncertainty associated with an unlimited possibility of relitigation" and prompt "those believing they have grounds for post-conviction relief to bring their claims swiftly. . . ." State v. Mitchell, 126 N.J. 565, 575-576 (1992).

Nevertheless, the five-year procedural bar is not absolute. State v. Milne, 178 N.J. 486, 492 (2004). It may be relaxed if the defendant shows that the delay in filing was due to excusable neglect or the interests of justice demand it. Id.

"In the context of post-conviction relief, a court should relax Rule 3:22-12's bar only under exceptional circumstances." Mitchell, supra, 126 N.J. at 580. Factors to consider in determining whether there has been injustice warranting a relaxation of the procedural bar include 1) the extent and cause of the delay, 2) the prejudice to the State, and 3) the importance of the petitioner's claim. State v. Afanador, 151 N.J. 41, 52 (1997). "Absent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay." Id. To meet the burden, a petition must include more than a bare allegation. State v. Goodwin, 173 N.J. 583, 594 (2002). "The petition itself must allege the facts relied on to support the claim." Mitchell, supra, 126 N.J. at 577.

Here, defendant's petition fails to allege facts showing that the delay in filing was due to excusable neglect, and fails to establish that enforcement of the time bar would result in fundamental injustice. From our review of the record, we discern no "exceptional circumstances" that entitle defendant to the relief sought.

Affirmed.