NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant appeals from a January 10, 2013 order denying his petition for post-conviction relief (PCR). Defendant argues that his plea counsel rendered ineffective assistance of counsel by failing to argue the existence of certain mitigating factors, and by failing to file an appeal after re-sentencing. He further argues that the PCR judge erred by denying the petition on procedural grounds. We affirm.

I.

In 2001, Essex County grand juries returned two indictments charging defendant with nineteen separate charges arising out of three murders, one committed in July 1999 and two committed in July 2000. Pursuant to a plea agreement, on April 23, 2002, defendant plead guilty to second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, 15-1; second-degree armed burglary, N.J.S.A. 2C:18-2; two counts of first-degree robbery, N.J.S.A. 2C:15-1; two counts of first-degree murder, N.J.S.A. 2C:11-3a(1)-(2); third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5b; third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d; first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a; and two counts of second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a.

Defendant was initially sentenced to a combined sentence of life plus 17 years with 44.45 years of parole ineligibility. In October 2004, defendant appealed his sentence and we remanded the matter for re-sentencing in compliance with the plea agreement. State v. Mc[C]att, No. A-3614-02 (App. Div. Oct. 22, 2004) (slip op. at 7-8). Upon remand, defendant and the State reached an agreement regarding a proposed restructuring of defendant's plea agreement. Pursuant to that agreement, on June 10, 2005, the judge imposed a sentence of an aggregate term of 75 years with 38.5 years of parole ineligibility. Defendant did not appeal this sentence.

In December 2011, defendant filed a pro se petition for PCR. In his petition, defendant alleged that trial counsel was ineffective for failing "to adequately investigate the mitigating circumstances surrounding [his] penalty phase." He also claimed his lawyer was ineffective for not informing him "that there were other options [he] could take outside of a[n] appeal, to get relief." Defendant was assigned PCR counsel, who filed a memorandum in support of defendant's petition.

After hearing oral argument on January 10, 2013, the PCR judge rendered an oral opinion denying the petition "on both procedural and substantive grounds." The judge found that defendant's petition was procedurally barred by Rule 3:22-5, because the issues were previously raised and adjudicated on defendant's direct appeal, and by Rule 3:22-4, because the issues otherwise could have been raised, if not completely addressed on defendant's direct appeal. The judge further found the petition was procedurally time-barred by Rule 3:22-12.

II.

On appeal, defendant argues:

After carefully considering the record and the briefs, we conclude that defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by the PCR judge in his oral opinion. We add the following comments.

A defendant must bring a PCR petition within five years of judgment or sentence, unless the petition alleges that the delay was due to defendant's excusable neglect and there is a "reasonable probability" that a "fundamental injustice" would result from the time bar if the assertions within the petition were true. R. 3:22-12(a)(1). Rule 1:1-2(a) also permits the court to disregard this time bar when defendant demonstrates an injustice by a preponderance of the credible evidence. State v. Mitchell, 126 N.J. 565, 579 (1992). However, the Rule 3:22-12 time bar should be relaxed "only under exceptional circumstances," and the court should take into account "the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim" when making this determination. State v. Goodwin, 173 N.J. 583, 594 (2002) (citation and internal quotation marks omitted); State v. Milne, 178 N.J. 486, 492 (2004) (citation and internal quotation marks omitted). Additionally, a defendant "is generally barred from presenting a claim on PCR that could have been raised at trial or on direct appeal, [Rule] 3:22-4(a), or that has been previously litigated, [Rule] 3:22-5." State v. Nash, 212 N.J. 518, 546 (2013) (footnotes omitted).

The PCR judge correctly found that defendant's PCR petition was procedurally and substantively barred. The trial court imposed defendant's amended sentence in June 2005 but defendant did not file his PCR petition until December 2011, more than six years after his re-sentencing. The PCR judge also correctly noted that the sentencing issue was previously before us during defendant's direct appeal.

However, even if not procedurally barred, defendant failed to establish a prima facie case of ineffective assistance of counsel. In order to establish a claim of ineffective assistance, a defendant is required to demonstrate that counsel's performance was deficient, and that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

The record does not support defendant's contention that his counsel was ineffective and violated his constitutional rights. Defendant's claim that his counsel was ineffective for failing to argue the application of mitigating factor four, N.J.S.A. 2C:44-1b(4) ("substantial grounds tending to excuse or justify" conduct but insufficient to establish defense), and mitigating factor five, N.J.S.A. 2C:44-1b(5) (victim's conduct "induced or facilitated" the crime), clearly lacks merit as there is no basis to find either of these mitigating factors were applicable. Nor does the record provide any support for defendant's claim that his counsel was deficient for failing to file an appeal after the trial court re-sentenced defendant pursuant to the agreement defendant and the State reached regarding a restructured plea agreement.

Therefore, because the PCR judge correctly found defendant's petition procedurally and substantively barred, in addition to defendant's inability to demonstrate a reasonable likelihood of meeting either prong of the Strickland test, we conclude that PCR was properly denied.

Affirmed.