State v. Dugan

• Decision Date: 20 March 1996
• Citation: 672 A.2d 1240,289 N.J.Super. 15
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Daniel DUGAN, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 15

289 N.J.Super. 15

672 A.2d 1240

STATE of New Jersey, Plaintiff-Respondent, v. Daniel DUGAN, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Feb. 13, 1996.

Decided March 20, 1996.

Susan Reisner, Public Defender, Trenton, for appellant (Jean M. Hartmann, Designated Counsel, Staten Island, NY, of counsel and on the brief).

Deborah T. Poritz, Attorney General, Trenton, for respondent (Arthur S. Safir, Deputy Attorney General, Lawrenceville, NJ, of counsel and on the brief).

Before Judges PETRELLA, SKILLMAN and P.G. LEVY.

The opinion of the court was delivered by

SKILLMAN, J.A.D.

A jury found defendant guilty under one indictment of armed robbery, in violation of N.J.S.A. 2C:15-1, and a second jury found defendant guilty under a separate indictment of receiving stolen property, in violation of N.J.S.A. 2C:20-7. On March 13, 1987, the court sentenced defendant as a persistent offender to an extended term of life imprisonment, with twenty years of parole ineligibility, for the armed robbery. On June 5, 1987, the court also sentenced defendant as a persistent offender to an extended term of ten years imprisonment, with five years of parole ineligibility, for receiving stolen property, to be served consecutively to his sentence for armed robbery.

On appeal, we affirmed both of defendant's convictions but vacated the sentences and remanded for resentencing. State v. Dugan, A-5392"86T4 (decided Nov. 6, 1989); State v. Dugan, A- 5709-86T4 (decided Dec. 7, 1989). The Supreme Court denied defendant's petition for certification of our decision affirming his conviction for armed robbery. 121 N.J. 620, 583 A.2d 319 (1990). On January 31, 1990, the trial court resentenced defendant to an extended term of fifty years imprisonment, with fifteen years of parole ineligibility, for armed robbery and to a consecutive term of five years imprisonment, with one year of parole ineligibility, for receiving stolen property. On appeal from the amended judgments of convictions entered upon resentencing, we affirmed, State v. Dugan, A-3788-89T4 (decided July 29, 1992), and the Supreme Court denied defendant's petition for certification. 133 N.J. 429, 627 A.2d 1136 (1992).

On January 25, 1994, defendant filed a petition for post-conviction relief. The trial court denied this petition on the ground that, with the exception of a challenge to the legality of defendant's sentence which is not being pursued on this appeal, defendant's claims were foreclosed by Rule 3:22-12, which bars a petition for post-conviction relief filed "more than 5 years after rendition of the judgment or sentence sought to be attacked" unless defendant shows "excusable neglect."

On appeal, defendant makes the following arguments:

I. THE TRIAL COURT ERRED IN DETERMINING THAT ALL POST-CONVICTION RELIEF ISSUES, OTHER THAN ILLEGAL SENTENCE WERE TIME-BARRED (Partially Raised Below).

A. The Petition for Post-Conviction Relief was Timely, Since it was Filed Within Five Years of the Last Judgments of Conviction.

B. The Petition for Post-Conviction Relief Was Timely, Since Appellate Remedies Had Not Been Exhausted Until January 1, 1993.

II. EVEN IF DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WAS UNTIMELY, HIS RELIANCE ON COUNSEL, HIS PLAIN READING OF R. 3:22-3 AND CASE-LAW CONSTITUTES EXCUSABLE NEGLECT (Not Raised Below).

III. CONSTITUTIONAL ISSUES, BOTH FEDERAL AND STATE AND THE INTERESTS OF JUSTICE REQUIRE GRANTING THIS PETITION FOR POST-CONVICTION RELIEF U.S. CONST.AMEND. VI; N.J. CONST. (1947) ART. I, PAR. 10 (Not Raised Below).

IV. DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS PETITION FOR POST-CONVICTION RELIEF.

We reject defendant's arguments and affirm the denial of his petition.

Rule 3:22-12 provides in pertinent part:

No ... petition shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.

The five year period for filing a petition for post-conviction relief allowed by this rule commences with the entry of a judgment of conviction. State v. Riley, 216 N.J.Super. 383, 389, 523 A.2d 1089 (App.Div.1987). Although Rule 3:22-3 provides that a petition "may not be filed while [an appeal from the conviction] is available," the pendency of a direct appeal does not toll the running of the five year limitations period imposed by Rule 3:22-12. State v. Dillard, 208 N.J.Super. 722, 727, 506 A.2d 848 (App.Div.), certif. denied, 105 N.J. 527, 523 A.2d 169 (1986). The essential objective of this limitations period is "the need for achieving finality of judgments and to allay the uncertainty associated with an unlimited possibility of relitigation." State v. Mitchell, 126 N.J. 565, 576, 601 A.2d 198 (1992).

Although defendant's judgment of conviction for armed robbery was entered on March 13, 1987, and his judgment of conviction for receiving stolen property was entered on June 5, 1987, he filed his petition for post-conviction relief more than six and a half years later on January 25, 1994. Therefore, if defendant's time for filing a petition ran from the entry of the original judgments, his petition was barred by Rule 3:22-12.

However, defendant argues that the fiveyear period for filing a petition for post-conviction relief did not commence until the entry of the amended judgments of conviction reflecting his resentencings pursuant to remands from this court. We reject this argument as being inconsistent with both the language and the essential objective of Rule 3:22-12.

Rule 3:22-12 requires a petition for post-conviction relief to be filed within five years "after rendition of the judgment or sentence sought to be attacked." (Emphasis added). Thus, the rule distinguishes between a petition attacking a judgment of conviction and a petition attacking a sentence, requiring a defendant to file a petition for post-conviction relief within five years of whatever judicial action he is attacking. A defendant may be resentenced not only, as in these cases, pursuant to a remand from an appellate court which has affirmed his conviction but also on any one of the grounds set forth in Rule 3:21-10(b). Rule 3:22-12 authorizes a defendant to file a petition attacking any resentencing proceedings within five years thereafter, but by distinguishing between a judgment of conviction and a sentencing, the rule indicates that resentencing does not extend the time for filing a petition attacking the conviction. Similarly, Rule 3:22-3 prohibits the filing of a petition for post-conviction relief while "appellate review" of a "conviction" is "available," but it does not bar a petition for post-conviction relief attacking a conviction simply because a defendant is seeking sentencing relief in a trial or appellate court.

Our conclusion that a petition for post-conviction relief must be filed within five years of entry of the judgment memorializing the conviction even if further trial proceedings relating to the sentence are conducted during the interim period is also supported by the underlying objective of Rule 3:22-12 to "strongly encourag[e] those believing they have grounds for post-conviction relief to bring their claims swiftly, and [to] discourag[e] them from sitting on their rights until it is too late for a court to render justice." State v. Mitchell, supra, 126 N.J. at 576, 601 A.2d 198. As previously noted, a defendant may be resentenced not only pursuant to a remand from an appellate court which has affirmed his...