STATEOF NEW JERSEY IN THE INTEREST OF C.E

RECORD IMPOUNDED

                     NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION
  This opinion shall not "constitute precedent or be binding upon any court."
   Although it is posted on the internet, this opinion is binding only on the
     parties in the case and its use in other cases is limited. R. 1:36-3.




                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-0181-16T4

STATE OF NEW JERSEY
IN THE INTEREST OF C.E.
______________________________

           Submitted January 10, 2018 – Decided February 20, 2018

           Before Judges Alvarez and Currier.

           On appeal from Superior Court of New Jersey,
           Chancery Division, Essex County, Docket No.
           FJ-07-2803-02.

           C.E., appellant pro se.

           Robert D. Laurino, Acting Essex County
           Prosecutor, attorney for respondent State of
           New Jersey (Barbara A. Rosenkrans, Special
           Deputy   Attorney  General/Acting  Assistant
           Prosecutor, on the brief).

PER CURIAM

     Defendant C.E. appeals from the denial of his petition for

post-conviction relief (PCR). We conclude that this is defendant's

second PCR petition, and since it was not filed in a timely manner

and defendant has not shown good cause for the delay, we affirm.

     Defendant was convicted in 2006 of four counts of first–

degree robbery, 
N.J.S.A. 2C:15-1, and one count of conspiracy to
commit robbery, 
N.J.S.A. 2C:5-2.               In 2007, defendant was sentenced

to an aggregate thirty-year term of incarceration, subject to the

No   Early    Release      Act,    
N.J.S.A.      2C:43-7.2.      We   affirmed   his

convictions and sentence, State v. Evans, No. A-1530-08 (App. Div.

June 24, 2011), and his petition for certification was subsequently

denied.      State v. Evans, 
208 N.J. 601 (2011).

      Defendant's first PCR petition was denied by the trial court

on December 3, 2012.             We affirmed, State v. Evans, No. A-3324-12

(App.     Div.      May   15,     2014),   and    a   subsequent      petition   for

certification was denied in October 2014.                     State v. Evans, 
220 N.J. 43 (2014).           Defendant also pursued federal remedies.               His

petition      for     a   writ    of   habeas     corpus   and     certificate     of

appealability was denied in June 2016.                Evans v. D'Ilio, No. 15-

2132, 2
016 U.S. Dist. LEXIS 73672 (D.N.J. June 6, 2016).                         The

subsequent application to the Third Circuit was denied, Evans v.

Adm'r N.J. State Prison, No. 16-3152, 2
017 U.S. App. LEXIS 17919

(3d Cir. Jan. 18, 2017), and defendant's petition for a writ of

certiorari was denied by the Supreme Court on October 10, 2017.

Evans v. Johnson, ___ U.S. ___, 
138 S. Ct. 319 (2017).

      In 2016, defendant filed a PCR petition under a juvenile

docket number, contending that he had learned that another person

had used his name and birthdate as an alias, and that person had

committed the juvenile offenses noted on defendant's criminal

                                           2                                A-0181-16T4
record.     Defendant asserted that due to these juvenile offenses

in his criminal history, he was denied a mitigating factor and

assessed    an   aggravating   factor     at   his   2007    sentencing.         He

requested an evidentiary hearing and oral argument.

     In denying defendant's petition, the PCR judge determined in

a letter opinion issued on July 27, 2016, that (1) defendant's

petition was his second PCR petition despite being filed under his

juvenile offense docket numbers; (2) defendant was not entitled

to the assignment of counsel because he did not show good cause;

(3) due to the length of time that had passed since defendant's

juvenile    offenses,   it   was   "impossible       to   determine     the   true

perpetrator of the [juvenile] offenses" on his record because the

Public Defender, Essex County Prosecutor, and the Essex County

Youth Detention Center could not locate any records pertaining to

the juvenile offenses; and (4) even if the juvenile offenses "were

to be entirely wiped from [his] history, it would in no way impact

his current status" because the offenses were not levied against

him as an aggravating factor at sentencing.

     We review the legal conclusions of a PCR judge de novo.                  State

v. Harris, 
181 N.J. 391, 421 (2004).             The same scope of review

applies to mixed questions of law and fact.               Ibid.

     On appeal, defendant contends that, because this petition

addressed    his   alleged     juvenile    offenses,        not   his   criminal

                                      3                                   A-0181-16T4
convictions, the judge wrongfully characterized his application

as a second PCR petition.           He therefore contends he was entitled

to    counsel,      oral    argument,   and       an    evidentiary      hearing.       We

disagree.

       Although defendant asserts that the juvenile offenses and

adjudications listed on his criminal record do not belong to him,

the    crux    of     his    argument    is       the     bearing     those    juvenile

adjudications had at his sentencing on his adult convictions.                          His

PCR petition challenges the sentence he is currently serving, the

sentence previously affirmed by this court in both a direct and

PCR appeal. Defendant only raises the error in his juvenile record

for the effect he perceives it had on his sentence.

       As we are satisfied that the judge correctly determined

defendant's application to be a second PCR petition, it was not

an abuse of discretion for the court to consider the application

on the submitted briefs and not entertain oral argument.

       Defendant is also not entitled to assigned counsel on a second

PCR without a showing of good cause.                   R. 3:22-6(b).     "[G]ood cause

exists only when the court finds that a substantial issue of fact

or    law   requires       assignment   of       counsel   and    when    a   second   or

subsequent petition alleges on its face a basis to preclude

dismissal under R. 3:22-4."             R. 3-22(6)(b).           Here, defendant has

failed to show a substantial factual or legal issue to support the

                                             4                                  A-0181-16T4
assignment of counsel.           Defendant's juvenile record was fourteen

years old when he filed this PCR petition and, as the PCR judge

explained, it was "impossible to determine the true perpetrator

of the offenses at this point in time."

     Further, defendant's juvenile record had no effect on the

imposed sentence.          At the sentencing hearing in 2007, the judge

referenced       the     juvenile    adjudication    on   defendant's    record.

Although the judge declined to accord defendant a mitigating factor

for a lack of a prior record,1 he also did not accept the State's

request for an aggravating factor because he did not find it to

be "a significant prior criminal history."                The sentencing judge

concluded that the aggravating factor of the death of a victim

during   the     armed     robbery   "vastly   outweigh[ed]     any   mitigating

factor."        Despite the discussion of defendant's juvenile record

in 2007, he never raised the mistaken identity issue in any of the

myriad     of    post-conviction       proceedings.       Defendant     has    not

presented a substantial factual or legal issue warranting the

assignment of counsel.

     Although       we    have   addressed    the   substance   of    defendant's

arguments, it is of no consequence whether the application was a

first or second PCR petition as it was untimely filed in either


1
   Defendant also had several arrests as an adult listed in his
criminal history.

                                          5                               A-0181-16T4
instance.   A first PCR petition must be filed within five years

of the entry of the judgment of conviction.           R. 3:22-12(a)(1).     A

defendant seeking relief from the time bar under the rule must

show excusable neglect and that a fundamental injustice will

result.     R.   3:22-12(a)(1)(A).       To   relax   the   five-year   time

limitation for filing a PCR petition, the New Jersey Supreme Court

has    required     a    showing     of       "compelling,     extenuating

circumstances," State v. Milne, 
178 N.J. 486, 492 (2004), or

alternatively, "exceptional circumstances." State v. Goodwin, 
173 N.J. 583, 594 (2002); see also State v. Murray, 
162 N.J. 240, 246

(2000); State v. Mitchell, 
126 N.J. 565, 580 (1992).

      Defendant cannot demonstrate excusable neglect.         The juvenile

adjudication and offenses of which he complains in the current PCR

petition were referenced by the prosecutor, defense counsel, and

the judge at the time of sentencing in 2007.          Defendant was aware

he had juvenile offenses and an adjudication attributable to him

at least nine years prior to the filing of this application.

      The application is also time barred as a second PCR petition

under Rule 3:22-4(b) for similar reasons.         A second petition must

be filed within one year of the discovery of new facts that could

not have been discovered earlier.             R. 3:22-12(a)(2)(B).       The

factual predicate asserted by defendant here is the discovery that

the offenses listed on his juvenile criminal record were not

                                     6                              A-0181-16T4
committed by him.   However, as stated, he has been aware of this

information since the sentencing hearing in 2007.   We discern no

reason to disturb the trial judge's decision.

    Affirmed.




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