STATE OF NEW JERSEY v. CLARENCE E. SCOTT

NOT FOR PUBLICATION WITHOUT THE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-3846-16T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

CLARENCE E. SCOTT,

     Defendant-Appellant.
______________________________

              Submitted May 8, 2018 – Decided June 18, 2018

              Before Judges Hoffman, Gilson, and Mitterhoff.

              On appeal from Superior Court of New Jersey,
              Law Division, Passaic County, Indictment No.
              98-05-0493.

              Clarence E. Scott, appellant pro se.

              Camelia M. Valdes, Passaic County Prosecutor,
              attorney for respondent (Christopher W. Hsieh,
              Chief Assistant Prosecutor, of counsel and on
              the brief).

PER CURIAM

        Defendant Clarence E. Scott appeals from an April 5, 2017

order, denying his second petition for post-conviction relief

(PCR).      We affirm.
     On January 24, 2002, a jury convicted defendant of murder,


N.J.S.A. 2C:11-3(a)(1) or (2); first-degree robbery, 
N.J.S.A.

2C:15-1; third-degree unlawful possession of a weapon, 
N.J.S.A.

2C:39-5(b);   first-degree   attempted   murder,   
N.J.S.A.   2C:11-3;

second-degree aggravated assault, 
N.J.S.A. 2C:12-1(b)(1); fourth-

degree aggravated assault, 
N.J.S.A. 2C:12-1(b)(5); second-degree

possession of a weapon for an unlawful purpose, 
N.J.S.A. 2C:39-

4(a); fourth-degree resisting arrest, 
N.J.S.A. 2C:29-2(a); and

fourth-degree possession of a prohibited weapon, 
N.J.S.A. 2C:39-

3(f).   After the verdict was announced, the jury deliberated again

and convicted defendant of second-degree possession of a weapon

by a convicted felon, 
N.J.S.A. 2C:39-7.       On or around June 7,

2002, the court imposed a life term with thirty-five years of

parole ineligibility for the murder, to run consecutive to a

sentence defendant was serving on an earlier conviction.              We

affirmed defendant's conviction on his direct appeal. State v

Scott, No. A-1732-03 (App. Div. Feb. 2, 2006).     Our Supreme Court

granted defendant's petition for certification limited to the

issue of his sentence on the robbery and attempted murder charges

and the matter was remanded to the trial court for resentencing.

State v. Scott, 
187 N.J. 488 (2006).

     Defendant filed a first petition for post-conviction relief,

which was denied on or around September 12, 2008.     We affirmed the

                                 2                             A-3846-16T1
denial of defendant's first PCR application. State v. Scott, No.

A-2047-08 (App. Div. Aug. 3, 2010). The Supreme Court denied

defendant's petition for certification on February 10, 2011. State

v. Scott, 
205 N.J. 101 (2011).

     On or around September 10, 2015, defendant filed his second

petition for post-conviction relief.   The trial court found that

defendant's second PCR application was time barred by Rule 3:22-

12(a)(2) and procedurally barred by Rule 3:22-4(b).

     On appeal defendant asserts the following arguments:

          POINT ONE: THIS COURT MUST CLARIFY COURT RULE
          3:22-12(A)(2)(C) DUE TO THE VAGUE AND UNCLEAR
          LANGUAGE AS TO WHEN THE ONE YEAR LIMITATION
          TO FILE A SECOND OR SUBSEQUENT PETITION FOR
          POST CONVICTION RELIEF BEGINS AND IF IT IS
          TOLLED DURING APPEAL

          POINT TWO: THE PCR COURT IMPROPERLY DENIED
          DEFENDANT'S PETITION FOR A SECOND POS[T]
          CONVICTION RELIEF, WITHOUT THE DEFENDANT'S
          MERITS BRIEF BEING SUBMITTED WHERE THE
          DEFENDANT ASSERTS SUPPORTED OF EXCUSABLE
          NEGLECT AND FUNDAMENTAL INJUSTICE TO RELAX THE
          PROCEDURAL BARS OF R. 3:22-4(b) AND R. 3:22-
          12(a)(2) AND ASSERTS LEGAL ARGUMENTS IN
          SUPPORT OF DEFENDANT'S REMAINING CLAIMS, THUS
          THE APPLICATION FOR A SECOND PCR MUST BE
          GRANTED

          POINT THREE: PCR COURT ERRED IN NOT ASSIGNING
          COUNSEL TO DEFENDANT

          POINT FOUR: THIS MATTER SHOULD BE REMANDED SO
          THE DEFENDANT CAN PROPERLY BRIEF AND PRESENT
          HIS CLAIMS TO THE PCR COURT



                                 3                          A-3846-16T1
       We affirm substantially for the reasons set forth in Judge

Sokalski's      thorough   written   decision,      adding   the    following

comments.

       Rule 3:22-12(a)(2) requires that a second petition for post-

conviction relief must be filed not more than one year after the

latest of:

            (A) the date on which the constitutional right
            asserted was initially recognized by the
            United States Supreme Court or the Supreme
            Court of New Jersey, if that right has been
            newly recognized by either of those Courts and
            made retroactive by either of those Courts to
            cases on collateral review; or

            (B) the date on which the factual predicate
            for the relief sought was discovered, if that
            factual   predicate  could   not  have   been
            discovered earlier through the exercise of
            reasonable diligence; or

            (C) 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).]

       Judge Sokalski correctly found that defendant did not assert

any claim within one year that would fall under subsection (a) or

(b).     With   respect    to   subsection   (c),   the   judge    noted   that

defendant's first application for PCR was denied on September 12,

2008 and we affirmed that denial on August 3, 2010.               Because this


                                      4                                A-3846-16T1
application was filed on September 10, 2015, the trial judge

correctly found that it is time-barred pursuant to Rule 3:22-

12(a)(2).    We disagree with defendant's claim that the time bar

should be relaxed due to excusable neglect because, according to

defendant, the language of the rule is vague or ambiguous.    To the

contrary, the rule is clear that there is a one-year time limit

to file a subsequent petition for PCR where ineffective assistance

counsel on the prior PCR application is being alleged, the very

circumstance presented in this case.

     In addition, the judge correctly ruled that defendant's

claims are procedurally barred by Rule 3:22-4(b).     The rule

requires the dismissal of a second PCR application unless it

alleges either:

            (A) that the petition relies on a new rule of
            constitutional law, made retroactive to
            defendant's   petition  .   .   .  that   was
            unavailable during the pendency of any prior
            proceeding; or

            (B) that the factual predicate for the relief
            sought could not have been discovered earlier
            through the exercise of reasonable diligence,
            and the facts underlying the ground for
            relief, if proven and viewed in light of the
            evidence as a whole, would raise a reasonable
            probability that the relief sought would be
            granted; or

            (C) that the petition alleges a prima facie
            case of ineffective assistance of counsel that
            represented the defendant on the first or


                                  5                          A-3846-16T1
            second subsequent        application        for       post-
            conviction relief.

            [R. 3:22-4(b)(2).]

      As the trial judge correctly found, the issues raised by

defendant were either raised in fact or should have been raised

in   his   first    PCR    application,     as   they   alleged      ineffective

assistance of counsel by his original trial counsel.                      The trial

judge   correctly    held    that   Rule    3:22-4(b)      bars    these    claims.

Finally,    the    judge    correctly       found   that      defendant's       bald

assertions that his first PCR and appellate counsel failed to

raise "obvious" issues without specifying what issues should have

been raised was insufficient to raise a prima facie case of

ineffective assistance of counsel.

      Affirmed.




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