STATE OF NEW JERSEY v. ANDRE CUTLER

NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4059-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ANDRE CUTLER,

     Defendant-Appellant.
____________________________

                   Submitted October 21, 2019 – Decided November 1, 2019

                   Before Judges Sabatino and Geiger.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Indictment No. 00-04-0768.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Frank M. Gennaro, Designated Counsel, on
                   the brief).

                   Mark Musella, Bergen County Prosecutor, attorney for
                   respondent (William P. Miller, Assistant Prosecutor, of
                   counsel and on the brief).

PER CURIAM
        Defendant Andre Cutler appeals the trial court's March 27, 2018 order

denying his petition for post-conviction relief ("PCR") without an evidentiary

hearing. We affirm.

        After a 2002 jury trial, defendant was convicted of second-degree

aggravated assault, third-degree aggravated assault on a corrections officer,

first-degree carjacking, second-degree escape, second-degree robbery, and

third-degree burglary. The trial court sentenced defendant to an aggregate

sentence of fifty years with a fifteen-year parole disqualifier, consecutive to a

sixty-year sentence he had already received on a previous conviction.

        The State's proofs at trial showed that defendant and two other inmates at

the Bergen County Jail attempted to escape, and in the process pummeled a

corrections officer. Defendant scaled the fence and ran to a nearby store parking

lot, where he attacked a woman who was in her vehicle waiting for friends to

come out of the store. The police apprehended him before he was able to drive

away.

        This court affirmed defendant's conviction on direct appeal in July 2004.

State v. Cutler, No. A-1663-02 (App. Div. July 1, 2004). The Supreme Court

denied certification on October 13, 2004.  217 N.J. 304 (2014).




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      Defendant took no further action concerning his conviction for over

twelve years until he filed a pro se PCR petition on March 1, 2017. In his

supporting certification, he alleged ineffective assistance of counsel in various

respects. He contended he had excusable neglect for failing to file a PCR

petition within the five-year time prescribed by the Rules of Court because he

allegedly "only recently learned about post-conviction relief. If I had been

advised by my lawyer or the court I would have filed within the allotted time."

      The PCR judge concluded defendant's petition was procedurally time-

barred. Choosing nonetheless to reach the merits, the judge also concluded the

petition lacked merit, and that no evidentiary hearing was warranted.

      In his brief on appeal, defendant presents the following points for our

consideration:

            POINT ONE

            THE PCR COURT ERRED BY DENYING
            DEFENDANT'S    PETITION     FOR    POST-
            CONVICTION RELIEF WITHOUT AFFORDING
            HIM AN EVIDENTIARY HEARING ON THE
            CLAIMS   THAT   HIS   TRIAL    ATTORNEY
            PROVIDED    HIM     WITH     INEFFECTIVE
            ASSISTANCE.

            A. THE PREVAILING LEGAL PRINCIPLES
            REGARDING  CLAIMS FOR   INEFFECTIVE
            ASSISTANCE OF COUNSEL, EVIDENTIARY


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            HEARINGS AND PETITIONS                   FOR     POST-
            CONVICTION RELIEF.

            B. THE FIVE YEAR TIME BAR SHOULD HAVE
            BEEN RELAXED.

            C. FAILURE TO COMMUNICATE, INVESTIGATE
            AND CALL WITNESSES.

            D. COUNSEL'S PERFORMANCE AT SENTENCING.

      Although defendant listed eight arguments in his petition initially, he

presents a more narrow list of substantive issues on appeal. In particular, he

contends, among other things, his trial attorney was ineffective by: not properly

communicating with him about trial preparation; failing to vigorously cross-

examine the car driver; and failing to subpoena Bergen County jail inmates who

allegedly would have refuted the testimony of the State's witnesses that the jail

yard was well lit on the night of the attempted escape.

      We need not comment in detail about defendant's substantive arguments

because we agree with the PCR judge that defendant's petition concerning his

2004 conviction and sentence is time-barred under Rule 3:22-12. The petition

was filed more than a decade after defendant had exhausted his direct appeal

rights through the Supreme Court's denial of relief in October 2004. As case

law instructs, the five-year time bar for a first PCR petition, measured from the

date of conviction, is an important procedural requirement. The time bar only

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                                       4
should be relaxed in "exceptional" situations that are specified in the Rule. See,

e.g., State v. Mitchell,  126 N.J. 565, 576-77 (1992) (declaring time-barred a

PCR petition filed six-and-a-half years after a defendant's conviction); State v.

Jackson,  454 N.J. Super. 284 (App. Div. 2018) (enforcing the time bar against a

defendant whose petition was filed fourteen years after his conviction). We

concur with the trial court that none of those limited exceptions apply here.

      In particular, defendant contends under Rule 3:22-12(a)(1)(A) that his

long delay in filing a PCR petition was, as the provision calls for, "due to . . .

excusable neglect and . . . there is a reasonable probability that if [his] factual

assertions were found to be true enforcement of the time bar would result in a

fundamental injustice."

      Like the trial court, we discern no excusable neglect here to justify

defendant's prolonged inaction. His generic and vague assertion that he had

"only recently been advised" by an unnamed source at an unspecified time about

the availability of PCR falls short of warranting relaxation. A defendant must

submit "sufficient competent evidence" to establish excusable neglect to relax

the time bar. State v. Brown,  455 N.J. Super. 460, 470 (App. Div. 2018). A

defendant's lack of sophistication in the law does not establish excusable




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neglect, especially given the long delay in this case. State v. Murray,  162 N.J.
 240, 246 (2000).

      We also have considered the substance of defendant's claims – to whatever

extent they were not raised or could have been raised on direct appeal – and

perceive no "fundamental injustice" that requires relief. Although the PCR court

did not explicitly discuss in its written decision defendant's discrete claim that

his trial counsel was ineffective at sentencing, we are satisfied that claim

particularly lacks merit, given the egregious and violent nature of defendant's

conduct that was proven to a jury.

      Lastly, the PCR court did not err in declining an evidentiary hearing, as

none was required here. State v. Preciose,  129 N.J. 451, 462-63 (1992).

      Affirmed.




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