STATE OF NEW JERSEY v. GREGORY BARTHOLOMEW

NOT FOR PUBLICATION WITHOUT THE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-5490-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

GREGORY BARTHOLOMEW,

          Defendant-Appellant.


                    Submitted December 12, 2018 – Decided February 7, 2019

                    Before Judges Ostrer and Currier.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Ocean County, Indictment No. 98-05-0658.

                    Gregory Bartholomew, appellant pro se.

                    Bradley D. Billhimer, Ocean County Prosecutor,
                    attorney for respondent (Samuel J. Marzarella, Chief
                    Appellate Attorney, of counsel; Shiraz Deen, Assistant
                    Prosecutor, on the brief).

PER CURIAM
      Defendant Gregory Bartholomew appeals from the denial of his petition

for post-conviction relief (PCR). Because defendant failed to file this second

PCR petition in a timely manner and has not shown good cause for the delay,

we affirm.

      In 2001, defendant was found guilty by a jury of three counts of armed

robbery,  N.J.S.A. 2C:15-1(a)(2), and three counts of possession of a weapon for

an unlawful purpose,  N.J.S.A. 2C:39-4(d). After a merger of the weapons

offense convictions into the armed robbery convictions, defendant, who had

been convicted of two prior armed robberies, was sentenced to concurrent terms

of life imprisonment without parole under  N.J.S.A. 2C:43-7.1(a). We affirmed

defendant's convictions and sentence. State v. Bartholomew, No. A-0951-01

(App. Div. March 5, 2003).       The Supreme Court denied his petition for

certification. State v. Bartholomew,  177 N.J. 572 (2003).

      Defendant filed his first petition for PCR alleging ineffective assistance

of counsel in August 2004. The PCR court denied the petition in November

2007. We affirmed, State v. Bartholomew, No. A-4801-07 (App. Div. May 4,




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2009), and again, the Supreme Court denied the petition for certification,  200 N.J. 210 (2009). 1

      In January 2016, defendant filed a second petition for PCR, contending

his trial counsel failed to inform him the State had offered a life sentence which

included parole eligibility after twenty-five years.       Defendant claims he

discovered the State's written plea offer in 2003, and he would have accepted

the offer.

      Because this was defendant's second PCR petition, the Public Defender's

Office requested the PCR court determine whether good cause existed under

Rule 3:22-6(b) to assign counsel. Subsequently, the PCR judge found there was

no good cause and dismissed defendant's PCR petition on June 30, 2017, as

untimely under Rule 3:22-12.

      Defendant presents the following issues on appeal:

             POINT I:

             THE PCR COURT ERRED BY HOLDING THAT
             DEFENDANT'S SECOND PCR PETITION WAS
             TIME-BARRED PURSUANT TO R[ULE] 3:22-12,
             THEREFORE, REQUIRING A VACATUR OF THE

1
  Defendant also pursued federal remedies. See Bartholomew v. Ricci, No. 10-
3666, 2 018 U.S. Dist. LEXIS 175663 (D.N.J. Oct. 12, 2018) (denying habeas
corpus petition as untimely); Bartholomew v. Ricci, No. 10-3666, 2 011 U.S.
Dist. LEXIS 134095 (D.N.J. Nov. 21, 2011).


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            PCR COURT'S ORDER AND REMANDING THE
            MATTER BACK TO THE LOWER COURT.

            POINT II:

            THE PCR COURT'S ORDER DENYING THE
            PETITION MUST   BE REVERSED SINCE
            DEFENDANT'S    CLAIMS    ARE      NOT
            PROCEDURALLY BARRED UNDER RULE 3:22-4.

            POINT III:

            THE PCR COURT ERRED IN NOT ENTERTAINING
            ORAL    ARGUMENT    ON   THE   PETITION,
            THEREFORE THE PCR COURT'S ORDER MUST BE
            REVERSED AND THE MATTER REMANDED FOR
            ORAL ARGUMENT.

            POINT IV:

            THE PCR COURT VIOLATED DEFENDANT'S
            CONSTITUTIONAL    RIGHT     TO    SELF-
            REPRESENTATION ON HIS PETITION FOR PCR,
            THEREFORE,  THIS   MATTER    MUST   BE
            REVERSED AND REMANDED.

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

 181 N.J. 391, 419 (2004). Under Rule 3:22–12(a)(2), a second or subsequent

PCR petition must be filed within one year of the date on which a new

constitutional right is recognized by the courts, "the date on which the factual

predicate for the relief sought was discovered," or "the date of the denial of the

first or subsequent application for [PCR] where ineffective assistance of counsel


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that represented the defendant on the first or subsequent application for [PCR]

is being alleged." A subsequent PCR petition must be dismissed unless it

complies with Rule 3:22–12(a)(2), and pleads, on its face, one of the three

criteria under Rule 3:22–12(a)(2). R. 3:22–4(b).

      We are satisfied that defendant's PCR petition is untimely under Rules

3:22–12(a)(2) and 3:22–4(b). His first PCR petition, filed in 2004, alleged

ineffective assistance of counsel and was filed after defendant discovered the

plea agreement, which is the subject of the second petition. Any allegations

regarding that plea agreement should have been included in the first petition.

      Additionally, under Rule 3:22–12(a)(2)(B) to (C), defendant was required

to file a subsequent PCR petition within one year of the denial of his first petition

because he was aware of the factual predicate, the State's plea offer, at the time

of his first petition. However, defendant did not file the instant PCR petition

until January 2016, eight years later. As a result, defendant's second petition

was properly barred as untimely.         See R. 3:22–4(b).      The remainder of

defendant's arguments lack sufficient merit to warrant discussion in a written

opinion. R. 2:11–3(e)(2).

      Affirmed.




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