NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing and presents the following arguments for our consideration:

We affirm, substantially for the reasons set forth in the oral decision of Judge Martin G. Cronin. In addition to finding defendant's petition was time-barred pursuant to Rule 3:22-12, Judge Cronin addressed the merits of defendant's petition and concluded he had failed to carry his burden of showing his right to post-conviction relief by a preponderance of the evidence. We agree.

After rejecting two separate plea offers that capped his exposure at ten years and nine years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, respectively, defendant was convicted by a jury of multiple counts that included carjacking, aggravated assault, and weapons offenses. He was sentenced to an aggregate term of twenty-six years subject to NERA. On direct appeal, we affirmed his convictions and sentences in an unpublished opinion. State v. Rouse, Docket No. A-1366-07 (Mar. 2, 2010), certif. denied, 205 N.J. 78 (2011). The facts underlying his convictions are set forth in our opinion and need not be repeated here.

Defendant filed his petition more than five years after the Judgment of Conviction was filed in this case, and approximately twenty months after the Supreme Court denied certification for review of his direct appeal. As Judge Cronin observed, the pendency of his direct appeal did not toll the five-year period in which he was required to file this petition pursuant to Rule 3:22-12. See State v. Dillard, 208 N.J.Super. 722, 727 (App. Div.), certif. denied, 105 N.J. 527 (1986).

In addition to being time-barred, defendant's petition failed to present a prima facie case of ineffective assistance of counsel that would entitle him to an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462-63 (1992). The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment to the United States Constitution was formulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment; and (2) the defect in performance prejudiced defendant's right to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

Defendant freely acknowledges the strength of the State's case against him. In his petition, defendant alleged ineffective assistance of counsel concerning trial counsel's advice to defendant which, he contends, led to his decision to reject a nine-year plea offer and proceed to trial. In his supporting certification, he stated, in pertinent part:

These conclusory statements that he received unspecified "misadvice from his attorney" fail to establish that an evidentiary hearing was necessary here. See State v. Marshall, 148 N.J. 89, 158 (1997). Moreover, his contention that he was ignorant of the exposure he faced if convicted of all charges is belied by the record, which shows he was advised by two different judges of the maximum exposure he faced if he was convicted at trial of all charges.

Affirmed.