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STATE OF NEW JERSEY, Plaintiff-Respondent, v. MIGUEL SANCHEZ, Defendant-Appellant. ____________________________________________________ Submitted October 23, 2012 - Decided December 3, 2012 Before Judges Messano and Ostrer. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 92-02-0519. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the Following a jury trial, defendant Miguel Sanchez was found guilty of first-degree murder, N.J.S.A. 2C:11-3(a)(1); second- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). The judge separately found defendant guilty of possession of a weapon by certain persons, N.J.S.A. 2C:39-7.1 On July 20, 1994, the judge sentenced defendant to an aggregate term of thirty years' imprisonment without parole. POINT I: THE TRIAL COURT ERRED BY PERMITTING DEFENSE COUNSEL TO WAIVE THE DEFENDANT'S PRESENCE DURING THE TRIAL WITHOUT OBTAINING A VOLUNTARY WAIVER OF HIS CONSTITUTIONAL RIGHT FROM THE DEFENDANT HIMSELF. (NOT RAISED BELOW). POINT II: THE TRIAL COURT ERRED BY DENYING DEFENSE COUNSEL'S REQUEST FOR A CONTINUANCE TO REEVALUATE THE DEFENDANT'S COMPETENCY TO PROCEED TO TRIAL, TO PERMIT THE DEFENDANT TO TAKE THE MEDICATION NECESSARY TO MAINTAIN COMPETENCY, AS WELL AS TO FACILITATE A MEANINGFUL PARTICIPATION IN HIS DEFENSE. [State v. Miguel Sanchez, No. A-6964-94 (App. Div. March 10, 1997) (slip op. at 2).] In our opinion, we summarized the evidence at trial, which included the victim's friends seeing defendant arguing with her, brandishing a gun and walking away with the victim to talk. Id. at 3. When the victim did not return, her friends went looking for her and found her shortly thereafter suffering from a gunshot wound. Ibid. She was dead on arrival at the hospital. 1 On the date of the events giving rise to defendant's conviction, November 2, 1991, this was a fourth-degree offense. See L. 1992, c. 74, §3 (making possession of a handgun by certain persons a second-degree crime). Ibid. Defendant confessed to a friend, who, when called as a witness at trial, recanted his prior statement to law enforcement. Id. at 3-4. When apprehended, defendant made several incriminating statements to the police. Id. at 4. We affirmed defendant's conviction and sentence. Id. at 6. In addressing the above two points, we said: While he was incarcerated pending trial, defendant exhibited a psychosis which was controllable by Haldol. Nevertheless, defendant was found competent to stand trial at two separate competency hearings, one held prior to trial, and one held at the commencement of trial. The trial court determined that defendant was pretending and purposely refused to take his medication. The court found it necessary, on one occasion, to remove defendant from the courtroom as a result of his obstreperous conduct. Defendant had bitten a court officer on the arm and drew blood. The next day, defendant wished to return to the courtroom. The trial court, concerned about the biting incident among other acts, said it would only allow defendant to return if he were bound and shackled. Defense counsel would not consent to allowing defendant back in the courtroom if he was bound and shackled. We do not view defense counsels' refusal to allow defendant to be present, bound and shackled, as a waiver of defendant's right to be present at the trial. In the final analysis, the choice was defendant's to make; he was in control of his own behavior. His absence from the courtroom was of his own doing. The issue was not raised below and we find no plain error. Defendant did not seek certification to the Supreme Court. On November 25, 2009, defendant filed a pro se petition for PCR. Defendant claimed he was currently housed in a section of the prison "for psychiatric inmates." He was now being medicated with drugs other than Haldol because it was determined defendant was allergic to that drug. Defendant asserted that his allergic reaction to Haldol affected him during the trial, and the judge erred by concluding he was "faking" his conduct. Defendant claimed the discovery of his allergy to Haldol was "newly discovered evidence" warranting a new trial. He attached a document from the prison indicating he was allergic to the Defendant also claimed trial counsel failed to present any witnesses regarding defendant's mental condition and never raised the defenses of diminished capacity or insanity. Defendant also argued that it was error for the judge to allow trial counsel to waive his presence during the trial. PCR counsel was assigned and filed a brief in support of the petition. He argued that trial counsel provided ineffective assistance by waiving defendant's presence at trial and incorporated by reference the arguments defendant posited in his A hearing was held on the PCR petition before a judge who was not the trial judge. In an oral opinion, the judge initially concluded that the petition, filed fifteen years after defendant's conviction, was time-barred pursuant to Rule 3:22- 12, and defendant failed to demonstrate excusable neglect or "exceptional circumstances" meriting relaxation of the Rule. The judge also concluded that defendant's claims were procedurally-barred pursuant to Rule 3:22-5. He noted that this court considered and rejected defendant's claim on appeal that "the trial court erred by allowing defense counsel to waive [defendant's] appearance at trial without having obtained a voluntary waiver from [defendant] . . . ." Lastly, the judge determined that defendant "failed to set forth a prima facie case establishing ineffective assistance of counsel . . . ." The judge reasoned that trial counsel was not ineffective because he waived defendant's presence at trial; rather, defendant, "through his behavior, waived his own right to be present." The judge determined that defendant "failed to demonstrate any evidence that defense counsel's actions were objectively deficient[,]" nor did he demonstrate that "the result of the proceeding would have been different had he been The PCR judge entered an order denying defendant's petition on November 5, 2010. This appeal ensued. Defendant argues that the PCR judge erred because pursuant to the "injustice clause" of Rule 1:1-2, the time-bar of Rule 3:22-12 and the procedural bar of Rule 3:22-5 should have been relaxed. He further argues that, because he demonstrated a prima facie case that his "due process" right to be present at trial was violated and his trial counsel was ineffective, an evidentiary hearing was warranted. Defendant also contends, without explanation, that appellate counsel provided ineffective assistance and, incorporating the argument made in his pro se submission, that trial counsel was ineffective for failing to introduce evidence of defendant's "mental disease and defect." We have considered the arguments raised in light of the record and applicable legal standards. We affirm. When defendant filed his PCR petition in November 2009, Rule 3:22-12(a) provided that except to correct an illegal sentence, "[n]o other [PCR] petition shall be filed . . . more than [five] years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay . . . was due to defendant's excusable neglect."2 Pursuant 2 Subsection (a) of the Rule was amended effective February 1, 2010. The five-year time bar was left intact, and the other to subsection (c) of the Rule, adopted July 16, 2009 and made effective September 1, 2009, the time limitation "shall not be relaxed . . . ." See Pressler & Verniero, Current N.J. Court Rules, comment 3 on R. 3:22-12 (2012) ("Paragraph (c) of the rule was adopted . . . to render the time limitations . . . non- Rule 1:1-2 provides: "Unless otherwise stated, any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice." However, when it adopted Rule 3:22-12(c), the Court also amended Rule 1:3-4(c), specifically adding Rule 3:22-12 to the collection of those Rules which time periods "[n]either the parties nor the court may . . . enlarge." Defendant has not cited any reported case, and we are unaware of one, that has construed Rule 1:1-2 to have continued vitality with respect to Rule 3:22-12 in light of the Court's amendment of Rule 1:3-4(c). Assuming arguendo that relaxation is still permissible, we note that "even before the amendment, the availability of relaxation to extend the five-year ban [was] strictly construed." Pressler & Verniero, supra, comment 3 on R. 3:22- 12. The time limit recognizes "the difficulties associated with amendatory language is irrelevant to the issues raised on appeal. a fair and accurate reassessment of the critical events" years after their occurrence, as well as "the need for achieving finality of judgments and to allay the uncertainty associated with an unlimited possibility of relitigation," and, thus, "strongly encourages those believing they have grounds for post- conviction relief to bring their claims swiftly, and discourages them from sitting on their rights until it is too late for a court to render justice." State v. Mitchell, 126 N.J. 565, 575- 76 (1992). Factors relevant to relaxation are "'the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an "injustice" sufficient to relax the time limits.'" State v. McQuaid, 147 N.J. 464, 485 (1997) (quoting Mitchell, supra, 126 N.J. at 580). "Absent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay." State v. Afanador, 151 N.J. 41, 52 (1997) (citing Mitchell, supra, 126 N.J. at 580). Defendant has not claimed he should be relieved of the time constraints because of excusable neglect. The PCR judge found, and we would agree, that defendant's psychological illness or treatment did not suffice. See, e.g., State v. D.D.M., 140 N.J. 83, 100 (1995) (rejecting a claim of excusable neglect in the absence of "specific facts . . . with regard to defendant's mental state to show that his psychological treatment would have prevented him from pursuing his rights and remedies"). Thus, the extent of the delay in bringing the petition, fifteen years, and the lack of any cause for the delay, mitigate seriously against relaxation of the time bar. McQuaid, supra, 147 N.J. at Defendant argues that his fundamental right to be present at trial is of such magnitude that the time bar of Rule 3:22-12 and the procedural bar of Rule 3:22-5 should be relaxed. Rule 3:22-5 provides that "[a] prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction . . .[,] or in any appeal taken from such proceedings." "PCR will be precluded only if the issue is identical or substantially equivalent to the issue already adjudicated on the merits." Afanador, supra, 151 N.J. at 51 (citations omitted). "Th[e] rule, however, is not an inflexible command. We recognize that when a constitutional problem presented is of sufficient import to call for relaxation of the rules [related to post-conviction relief,] . . . we may consider the question on its merits." State v. Franklin, 184 N.J. 516, 528 (2005) (citations omitted). Undoubtedly, the right of defendant to be present during his trial "is among the most fundamental of constitutional rights." State v. Grenci, 197 N.J. 604, 614 (2009). However, the mere assertion that trial counsel's ineffective assistance denied defendant a fundamental constitutional right does not, under the facts and procedural history of this case, amount to "compelling, extenuating circumstances," Afanador, supra, 151 N.J. at 52, that warrant relaxation of either Rule 3:22-12(a) or Although now couched in terms of trial counsel's ineffective assistance, the issue of whether defendant waived his presence at trial, or whether it was error to proceed in his absence, was fully adjudicated on appeal. See Afanador, supra, 151 N.J. at 51 (barring review if the issue is "identical or substantially equivalent") (emphasis added). Defendant never sought further review of our decision by petitioning for certification, but, instead, waited twelve years after our Compelling, extenuating reasons for relaxing the time bar do not exist, in part, because of this prior adjudication of the essential issue. Additionally, as already noted, the delay of fifteen years is essentially unexplained, and the prejudice to the State inherent in such delay is obvious. We conclude that defendant's petition was both time-barred and procedurally- To the extent we have not addressed the other specific arguments raised by defendant, they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

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