Opinion
DOCKET NO. A-3735-13T3
05-06-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTHONY MAY, a/k/a TONY MAY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Janet A. Allegro, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Higbee. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-07-2630. Joseph E. Krakora, Public Defender, attorney for appellant (Janet A. Allegro, 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, Anthony May, appeals from the October 7, 2013 Law Division order denying his petition for post-conviction relief (PCR). We affirm.
On November 2, 2000, defendant pled guilty to two counts of first-degree felony murder, N.J.S.A. 2C:11-3a(3), arising out of the murder of two elderly victims that occurred when defendant broke into their homes. In exchange for his plea, the State recommended dismissing a number of other charges and indictments then pending against defendant. On December 16, 2000, the trial judge sentenced defendant in accordance with his plea to two consecutive thirty-year terms, sixty years in the aggregate, without the possibility of parole.
Defendant filed a direct appeal concerning his sentence. We heard the appeal on our Excessive Sentence Oral Argument Calendar, pursuant to Rule 2:9-11, and affirmed defendant's sentence. State v. May, No. A-2693-00 (App. Div. April 10, 2001). Nearly eleven years later, on February 3, 2012, defendant filed a pro se PCR petition, asserting ineffective assistance of counsel. On July 15, 2013, defendant's assigned counsel filed a brief on his behalf. After hearing argument, Assignment Judge Patricia K. Costello denied defendant's PCR petition.
Judge Costello held the petition was procedurally barred, as it was filed beyond the five-year period allowed by Rule 3:22-12(a). Judge Costello found that defendant "provided no factual assertions to back up his claim that a failure to hear his petition would result in a fundamental injustice." The judge continued that "defendant provided no explanation for the delay." Specifically, she noted that "defendant merely asserts that his claim of ineffective assistance of counsel, in and of itself, merits consideration of his appeal."
Despite finding no excusable neglect or fundamental injustice, which is required to waive the five-year time bar articulated in Rule 3:22-12(a), Judge Costello 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 Costello denied defendant's petition in a thorough and well-reasoned written opinion dated October 7, 2013.
Defendant now appeals, raising the following arguments:
POINT ONE:
THE COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE EFFECTIVE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
POINT TWO:
DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF PCR COUNSEL.
POINT THREE:
THE PCR COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, ON PROCEDURAL GROUNDS PURSUANT TO R. 3:22-12(a).
We reject these arguments and affirm substantially for the reasons expressed by Judge Costello in her written opinion.
Defendant argues for the first time on appeal that his PCR counsel was ineffective. Defendant failed to raise this argument before the PCR judge and, therefore, we decline to consider it here. State v. Robinson, 200 N.J. 1, 19 (2009); see also Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION