adjudicated on direct appeal will be subject to the bar if
raised again on PCR, State v. McQuaid, 147 N.J. at 484,
it will not be barred if the underlying claims of counsel
error were not raised in the prior proceeding. State v.
Marshall (III), 148 N.J. 89, 149 (1997).
See also State v. Afanador (II), 151 N.J. at 51-52
(Court refused to apply R. 3:22-5).
C. R. 3:22-12
This rule contains the statute of limitations for post-
conviction relief:
A petition to correct an illegal sentence may be filed at any
time. No other 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 begins to run from entry of the
judgment of conviction. State v. Cummings, 321 N.J.
Super. 154, 165 (App. Div. 1999). The period is not
tolled by appellate proceedings, State v. Dillard, 208 N.J.
Super. 722, 727 (App. Div. 1986), certif. denied, 105 N.J.
527 (1986), or by a resentencing that results with an
amended judgment of conviction. State v. Dugan, 289
N.J. Super. 15, 20 (App. Div. 1996), certif. denied, 145
N.J. 373 (1996). The rule encourages defendants to
bring their claims swiftly, since the passage of time
prejudices the State: witnesses die or become
unavailable; evidence is lost or becomes unattainable.
State v. Mitchell, 126 N.J. at 575-576.
To avoid dispute on whether a PCR petition was
timely filed, defendant should file his petition with the
county clerk where the date of receipt is routinely
recorded. State v. Culley, 250 N.J. Super. at 561. An
amended PCR petition will relate back to the original
filing, so there is no time bar if the amended petition falls
outside the five year time period. State v. Cupe, 289 N.J.
Super. at 9.
When a defendant files a PCR petition beyond the
five year period, his petition must allege facts
demonstrating “excusable neglect.” State v. Mitchell, 126
N.J. at 576. But see State v. Cummings, 321 N.J. Super. at
165-166 (Court reluctantly allowed defendant to
expand appellate record with affidavit on why “excusable
neglect” existed).
Ignorance about the time-bar is not “excusable
neglect.” State v. Murray, 162 N.J. at 246; State v.
Dillard, 208 N.J. Super. at 728; State v. Dugan, 289 N.J.
Super. at 22. A defendant’s difficulty with reading and
writing is insufficient, as well. State v. Cummings, 321
N.J. Super. at 166. A defendant’s psychological
treatment, alone, is not enough to show “excusable
neglect” where defendant adduces no facts to show that
the treatment prevented him from pursuing his rights.
State v. D.D.M., 140 N.J. at 100.R. 3:22-12 may be relaxed under R. 1:1-2 when the
interests of justice require a relaxation. State v. Mitchell,
126 N.J. at 578. R. 3:22-12 should be relaxed only in
“exceptional circumstances,” id. at 580, and defendant
must establish by a preponderance of credible evidence
that he is entitled to the requested relief. Id. at 579.
Defendant must allege specific facts which, if believed,
would provide the court with an adequate basis on which
to base its decision. Id. Thus, bare allegations will not
be enough. State v. Cummings, 321 N.J. Super. at 168.IV. RIGHT TO COUNSEL ON POST-
CONVICTION RELIEF
Under R. 3:22-6(a), an indigent defendant is
entitled to representation from the Public Defender on
his first PCR petition. State v. Picciotti, 231 N.J. Super.
111, 113 (App. Div. 1989). Pro forma compliance with
this requirement will not suffice. State v. Clark, 260 N.J.
Super. 559, 562 (App. Div. 1992). Counsel, once
appointed, must faithfully serve the interests of his client,
and the rule plainly envisages the effective assistance of
PCR counsel. State v. Velez, 329 N.J. Super. at 132. PCR
counsel need only give his “best effort” on behalf of
defendant. Id. at 133. Accordingly, not appearing at the
PCR hearing, not consulting with defendant, not reading
the trial record will be deemed ineffective. See State v.
Velez, supra; State v. Clark, supra. In Velez, the Court
ruled that when PCR counsel has been found to be
ineffective, the process should begin anew with a remand
and the appointment of new PCR counsel. State v. Velez,
329 N.J. Super. at 135.Of course, a defendant can proceed pro se on his first
PCR petition, but he must affirmatively assert his
intention. R. 3:22-6(a). If a defendant files a subsequent
PCR petition, counsel will be assigned only upon
defendant’s application and upon a showing of “good
cause.” R. 3:22-6(b). If the court finds “good cause” and
assigns counsel in a subsequent PCR petition, the
defendant is entitled to effective and competent