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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0865-07T40865-07T4
STATE OF NEW JERSEY,
Plaintiff-Defendant,
v.
ROHAN BENNETT,
Defendant-Appellant.
Submitted February 2, 2009 - Decided
Before Judges Carchman and Sabatino.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County,
Indictment No. 92-01-1388.
Yvonne Smith Segars, Public Defender, attorney for appellant (Adam W. Toraya,
Designated Counsel, of counsel and on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Charles Cho,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Rohan Bennett appeals an order of the Law Division denying his petition for post-conviction relief
("PCR") arising out of his guilty plea in 1994 to a drug offense. Defendant claimed that his trial attorney was
ineffective in allegedly failing to advise him of the potential deportation consequences of his guilty plea. The Law
Division ruled that defendant's PCR application, which he did not file until twelve years after his 1994 plea, was
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inexcusably late, and therefore dismissed it under Rule 3:22-12. We affirm.
The relevant background may be briefly stated. On May 13, 1992, defendant was arrested by the Hackensack Police
Department for the illegal distribution and possession of cocaine, a controlled dangerous substance ("CDS"). On
September 30, 1992, a Bergen County Grand Jury indicted defendant, charging him with third-degree distribution
of CDS, 320 N.J. Super. 332, 339 (App. Div. 1999). That principle does not, however, eliminate the obligation of a
defendant to present such claims of ineffective assistance to the court in a timely manner, particularly after
receiving information that would be sufficient to alert a reasonable person that he or she may have been harmed
by the prior representation.
Rule 3:22-12 requires that, apart from claims to correct an illegal sentence, a PCR application must be filed within
five years. The only exception to that five-year deadline is where the defendant demonstrates that his or her delay
in filing the PCR petition resulted from "excusable neglect":
General Time Limitations. 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.
[R. 3:22-12.]
This codified time limitation "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, 576 (1992).
As the Supreme Court instructed in Mitchell, the five-year deadline should be relaxed "only under exceptional
circumstances." Id. at 580. The court must "consider 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." Ibid. A court should determine that the procedural rule as applied is unjust "only when a significant
liberty interest is at stake and the petitioner has offered something more than a bare allegation that that is so." Ibid.
Defendant's petition, which he filed more than a dozen years after his 1994 guilty plea, plainly is well beyond the
five-year limit of Rule 3:22-12. He contends that he satisfies the prerequisites for "excusable neglect" to relax the
time bar because he allegedly did not realize until 2006 that the federal government could use his drug conviction
as a basis to deport him.
As Judge Lipton recognized, defendant's claim of protracted ignorance about deportation consequences is belied
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by his entry of another guilty plea in an unrelated matter in 1995, a little more than a year after his plea was entered
in the present case. Specifically, the record reflects that on April 4, 1995, defendant pled guilty to fourth-degree
unauthorized use of a vehicle, 151 N.J. 41 (1997), is distinguishable. There, the Court allowed the five-year
procedural bar to be relaxed because of several idiosyncratic factors. Those factors included, among other things, a
supervening opinion of the Court in another case adopting a new rule of law that cast doubt upon the propriety of
the jury charge at defendant's own trial, and the Court's determination on defendant's direct appeal to defer his
challenge to the jury charge until that other case was decided. Id. at 48-49. No such post-conviction changes in our
state law with possible retroactive effects are implicated here.
We affirm the denial of defendant's petition, substantially for the sound reasons expressed in Judge Lipton's oral
opinion.
Affirmed.
The record does not disclose defendant's country of origin.
We are not informed of the status of the deportation matter. We presume that defendant is still in the United States
and that the present appeal is not moot.
Although it does not affect our legal analysis, we should note for sake of completeness that on May 1, 2006,
defendant pled guilty to a fourth-degree crime for causing or allowing injury to a child, N.J.S.A. 9:6-8.9. On June 23,
2006, defendant was sentenced to two years of probation for this third offense.
(continued)
(continued)
8
A-0865-07T4
February 27, 2009
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