NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Defendant Saydon Burney appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. On June 9, 1999, defendant pled guilty to several counts in two separate indictments, Essex County Indictment Nos. 98-09-3727 and 98-11-4441. On February 18, 2000, defendant was sentenced in accordance with the plea bargain to an aggregate term of ten years' imprisonment with a forty-five month period of parole ineligibility. Defendant did not file any appeal.
On April 21, 2010, defendant filed a pro se PCR petition, alleging ineffective assistance of counsel in failing to file and pursue an appeal. Defendant claimed to be "actually innocent of [the] offenses charged." Defendant also alleged that his guilty pleas "were made involuntar[il]y because [he] did not understand the nature of the charges or elements of the offenses...."
In a supplemental certification, defendant stated that, after pleading guilty, he told his attorney to file an appeal; in March 2000, there was a fire at his home and "all the paperwork" relating to his cases burned; and, he tried contacting his attorney upon release from prison in 2004, but was unable to "locate him." Without any specific date as to when it occurred, defendant stated he was now in custody on other charges, and it was only when he was "shipped to [f]ederal [p]rison" that he "had access to a [l]aw [l]ibrary."
Defendant further certified that he was guilty of the charges contained in Indictment No. 98-11-4441 to which he pled guilty, but not guilty of any charge in Indictment No. 98-09-3727. He pled guilty nonetheless because "the State was offering [him] a good deal." Defendant claimed his conviction on Indictment No. 98-09-3727 "was used to enhance [his] federal sentence."
At the hearing on defendant's petition, appointed PCR counsel argued that defendant's petition should not be procedurally-barred because of "excusable neglect." She also contended that trial counsel "forced [defendant] to plead guilty, saying [defendant] could only take advantage of... the plea if he pled guilty to both cases." PCR counsel requested an evidentiary hearing.
In a written opinion that followed the hearing, the PCR judge, Rachel N. Davidson, now retired, concluded defendant's factual claims regarding the delay in filing his petition could be "categorized as ignorance of or lack of sophistication in the law, which is insufficient to support a claim of excusable neglect[,]" citing State v. Murray, 162 N.J. 240, 246 (2000). Relying on State v. Mitchell, 126 N.J. 565, 583 (1992), the judge also determined that defendant failed to demonstrate a "fundamental injustice" warranting relaxation of the limitation period contained in Rule 3:22-12(a).
The judge then considered the merits of defendant's petition. She noted there was no evidence that the State would have permitted defendant to plead guilty to one of the indictments and go to trial on the other. Judge Davidson cited defendant's own admission that the plea agreement was very favorable. The judge also rejected any claim that trial counsel failed to investigate the cases, as well as defendant's claim that trial counsel was ineffective for not filing an appeal. In this regard, the judge concluded defendant "offer[ed] no evidence supporting his belief that an appeal had been filed and his failure to take any action on an appeal for ten years belies his claim that he wished to pursue an appeal." Lastly, citing State v. Wilkerson, 321 N.J.Super. 219, 227 (App. Div. 1999), Judge Davidson determined trial counsel was not ineffective for failing to advise defendant of "potential sentencing enhancement consequences of a guilty plea."
The judge entered an order denying defendant's petition and this appeal followed.
Defendant raises the following points for our consideration:
POINT I: THE PCR COURT ERRED BY NOT ORDERING AN EVIDENTIARY HEARING AS [DEFENDANT] ESTABLISHED A PRIMA FACIE CASE THAT HE WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL AT THE PLEA STAGE OF THE CRIMINAL PROCEEDINGS.
(A) TRIAL COUNSEL WAS INEFFECTIVE BY MIS-ADVISING [DEFENDANT] AS TO THE CONSEQUENCES OF HIS GUILTY PLEA.
(B) TRIAL COUNSEL WAS INEFFECTIVE FOR HIS FAILURE TO INVESTIGATE [DEFENDANT'S] DEFENSE TO THE CHARGES.
(C) TRIAL COUNSEL WAS INEFFECTIVE BY MIS-ADVISING [DEFENDANT] THAT THERE WOULD BE NO ADVERSE PENAL CONSEQUENCES TO PLEADING GUILTY BECAUSE THE SENTENCE WOULD BE CONCURRENT.
POINT II: [DEFENDANT] WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF PCR COUNSEL DUE TO COUNSEL'S FAILURE TO ALLEGE THAT TRIAL COUNSEL WAS INEFFECTIVE FOR NOT MOVING TO CONSOLIDATE [THE TWO] INDICTMENT[S]....
POINT III: THE FIVE YEAR TIME BAR SET FORTH IN R. 3:22-12 MUST BE RELAXED IN THE "INTERESTS OF JUSTICE" AND DUE TO [DEFENDANT'S] EXCUSABLE NEGLECT.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
We agree with Judge Davidson that defendant's petition was time-barred pursuant to Rule 3:22-12(a)(1), which provides:
[N]o petition shall be filed pursuant to this rule more than 5 years after the date of entry... of the judgment of conviction... unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice.
This "time limitation[] shall not be relaxed...." R. 3:22-12(c). "Paragraph (c) of the rule was adopted... to render the time limitations of the rule non-relaxable." Pressler & Verniero, Current N.J. Court Rules, comment 3 on R. 3:22-12 (2013). When it adopted Rule 3:22-12(c) in 2009, the Court also amended Rule 1:3-4(c), specifically adding Rule 3:22-12 to the collection of Rules which time periods "[n]either the parties nor the court may... enlarge." "[E]ven before the amendment, the availability of relaxation to extend the five-year bar [was] strictly construed." Pressler & Verniero, supra, comment 3 on R. 3:22-12.
The time limit recognizes "the difficulties associated with a fair and accurate reassessment of the critical events" years after their occurrence, as well as "the need for achieving finality of judgments and to allay the uncertainty associated with an unlimited possibility of relitigation," and, thus, "strongly encourages those believing they have grounds for post-conviction relief to bring their claims swiftly, and discourages them from sitting on their rights until it is too late for a court to render justice." Mitchell, supra, 126 N.J. at 575-76. Factors relevant to relaxation are "`the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an "injustice" sufficient to relax the time limits.'" State v. McQuaid, 147 N.J. 464, 485 (1997) (quoting Mitchell, supra, 126 N.J. at 580). "Absent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay." State v. Afanador, 151 N.J. 41, 52 (1997) (citing Mitchell, supra, 126 N.J. at 580).
Judge Davidson's conclusion that defendant did not demonstrate excusable neglect is supported by the record. Murray, supra, 162 N.J. at 246 (citing State v. Locurto, 157 N.J. 463, 470-72 (1999); State v. Johnson, 42 N.J. 146, 161-62 (1964)). Defendant has not explained how the fire at his home delayed his efforts to challenge his conviction, nor did he explain why he could not do so before 2010 on a pro se basis, something he was obviously capable of doing at that time.
In Point II, defendant argues that PCR counsel provided ineffective assistance because she failed to argue that trial counsel provided ineffective assistance for failing to move to consolidate the two indictments. Regarding a claim that PCR counsel was ineffective, the Court has stated:
PCR counsel must communicate with the client, investigate the claims urged by the client, and determine whether there are additional claims that should be brought forward. Thereafter, counsel should advance all of the legitimate arguments that the record will support. If after investigation counsel can formulate no fair legal argument in support of a particular claim raised by defendant, no argument need be made on that point. Stated differently, the brief must advance the arguments that can be made in support of the petition and include defendant's remaining claims, either by listing them or incorporating them by reference so that the judge may consider them.
[State v. Webster, 187 N.J. 254, 257 (2006).]
"The remedy for counsel's failure to meet the[se] requirements... is a new PCR proceeding." State v. Hicks, 411 N.J.Super. 370, 376 (App. Div. 2010) (citing State v. Rue, 175 N.J. 1, 4 (2002)).
PCR counsel must only raise "legitimate arguments that the record will support." Webster, supra, 187 N.J. at 257. Here, defendant was indicted for crimes committed on two different occasions with two different co-defendants. Defendant's claim before us that mandatory joinder was required, pursuant to Rule 3:15-1(b), is specious.
To the extent we have not otherwise addressed them, the remainder of defendant's arguments on appeal lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
