Opinion
DOCKET NO. A-1624-13T4
04-10-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ERIC L. SIMS, a/k/a ERIK SIMS, ERIK SIMMS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Higbee. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 94-06-2071, 97-01-0389, 04-06-2348 and Accusation No. 93-02-0182. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant, Eric Sims, appeals from an order dated July 15, 2013, of the trial court denying his first post-conviction relief (PCR) petition. We affirm.
Between February 10, 1993, and September 13, 2004, defendant pled guilty on four occasions to a variety of charges under one accusation and three indictments. The details are set forth in Judge Joseph C. Cassini, III's comprehensive opinion. In return for defendant's guilty pleas, numerous other charges were dismissed, and he received sentences ranging from two years of probation to three and four years in prison. The sentences carried varying periods of parole ineligibility. Defendant did not appeal any of the convictions, or the sentences imposed as a result of these convictions.
On June 15, 2012, nineteen years after his 1993 conviction, and almost eight years after his 2004 conviction to the last indictment, defendant, while in federal custody on unidentified charges, filed the PCR petition under review here. Specifically, defendant claimed that each of his plea counsel failed to advise him that, as a result of his plea, he would be: (1) subject to enhanced sentencing in the future; (2) unable to obtain a firearm permit; (3) unable to hold certain jobs; and (4) unable to vote. The first collateral consequence was most important to defendant. Although he did not state in his certification that he was subject to an enhanced federal sentence as a result of the New Jersey convictions, the appellate brief filed on defendant's behalf notes that "his argument suggests that he was."
After considering the arguments of counsel, Judge Cassini denied defendant's PCR petition as time-barred under Rule 3:22-12(a)(1). Judge Cassini found defendant failed to show the delay in filing his petition "was due to defendant's excusable neglect[,]" or that there was 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."
Despite finding proper legal grounds to apply this procedural bar, Judge Cassini reviewed the merits of defendant's claims. After applying the two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58, (1987), Judge Cassini denied defendant's petition in a thorough and well-reasoned written opinion dated July 15, 2013.
Defendant now appeals raising the following arguments:
POINT I
The order denying post-conviction relief should be reversed and the matter remanded for a full evidentiary hearing because defendant made a prima facie showing of ineffective assistance of trial counsel under the Strickland test.
POINT II
The court's ruling denying post-conviction relief violated defendant's right to effective assistance of counsel as guaranteed by the Sixth Amendment of the United States Constitution.
POINT III
The court misapplied its discretion in applying Rule 3:22-12 because the significance to the issues raised, and their impact on the integrity of the criminal justice system warranted relaxation of the five year time bar.
We reject these arguments and affirm substantially for the reasons expressed by Judge Cassini in his written opinion of July 15, 2013.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION