STATE OF NEW JERSEY VS. DAVID COMPANIONI (04-04-0497, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2232-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID COMPANIONI,

Defendant-Appellant.
________________________

Submitted April 19, 2021 – Decided August 9, 2021

Before Judges Suter and Smith.

On appeal from the Superior Court of New Jersey,
Law Division, Hudson County, Accusation No. 04-04-
0497.

Joseph E. Krakora, Public Defender, attorney for
appellant (Monique Moyse, Designated Counsel, on
the brief).

Esther Suarez, Hudson County Prosecutor, attorney
for respondent (Stephanie Davis Elson, Assistant
Prosecutor, on the brief).

PER CURIAM
 Defendant David Companioni appeals from the November 21, 2019 Law

Division order denying his petition for post-conviction relief (PCR) without an

evidentiary hearing, alleging that his trial counsel was ineffective. We affirm

because defendant's petition is time-barred under Rule 3:22-12(a)(1) and

otherwise lacks merit.

I.

Defendant pled guilty to third-degree possession of a controlled dangerous

substance with intent to distribute within 1,000 feet of a school property,

N.J.S.A. 2C:35-7, pursuant to a plea agreement on April 20, 2004. On August

24, 2004, the trial judge sentenced defendant to a five-year term of probation

pursuant to N.J.S.A. 2C:35-14, with conditions including the successful

completion of a long-term in-patient drug program. Defendant was represented

by trial counsel at both his plea and sentencing. He served his term of probation

and completed the in-patient drug program successfully.

On February 19, 2019, fourteen years and ten months later, defendant filed

his first petition for post-conviction relief (PCR). His seven-sentence

certification in support of relief alleged several errors by his trial counsel: that

he failed to investigate defendant's case, failed to supply defendant with

discovery, failed to move for withdrawal of defendant's guilty plea, failed to file

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an appeal, and failed to warn defendant that he would be extended term eligible

for sentencing on possible future convictions. In his short certification,

defendant did not provide any explanation for his nearly ten-year delay in filing

for PCR. PCR counsel filed a supporting brief and appendix, but there was no

supplemental certification from defendant.

On November 21, 2019 the PCR judge denied relief without an evidentiary

hearing. The PCR judge found defendant's petition was time-barred pursuant to

Rule 3:22-12(a)(1), concluding that defendant did not show excusable neglect

or 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.

The PCR judge further found that, had the merits of the PCR application been

reached, defendant failed to satisfy the Strickland standard.1 Defendant

appealed, raising the following arguments:

POINT ONE

MR. COMPANIONI IS ENTITLED TO AN
EVIDENTIARY HEARING ON HIS CLAIM THAT
HIS ATTORNEY RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL FOR FAILING TO
INVESTIGATE HIS ILLEGAL SEARCH AND
SEIZURE, PROVIDE DISCOVERY, TELL HIM
THAT HIS PLEA WOULD MAKE HIM EXTENDED-
TERM ELIGIBLE, OR FILE AN APPEAL.

1
Strickland v. Washington, 466 U.S. 668 (1984).
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 POINT TWO

THE PCR COURT'S RULING THAT MR.
COMPANIONI'S PETITION WAS TIME-BARRED
IS [ERRONEOUS] BECAUSE ANY DELAY IN
FILING THE PETITION WAS DUE TO
EXCUSABLE NEGLECT AND THERE IS 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.

II.

We address the threshold issue of the timeliness of defendant's first PCR

petition under Rule 3:22-12(a)(1)(A). Defendant contends the PCR judge

improperly barred his ineffective assistance of counsel claim because his delay

was due to excusable neglect, and enforcement of the time-bar would result in a

fundamental injustice. We disagree.

Our court rules preclude PCR petitions filed more than five years after

entry of a judgment of conviction unless the delay was "due to defendant's

excusable neglect and . . . there is 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." R. 3:22-12(a)(1)(A). The time-bar should be

relaxed only "under exceptional circumstances" because "[a]s time passes,

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justice becomes more elusive and the necessity for preserving finality and

certainty of judgments increases." State v. Goodwin, 173 N.J. 583, 594

(2002) (alteration in original) (quoting State v. Afanador, 151 N.J. 41, 52

(1997)). Therefore, "[a]bsent compelling, extenuating circumstances, the

burden of justifying a petition filed after the five-year period will increase with

the extent of the delay." State v. Mitchell, 126 N.J. 565, 580 (1992).

To establish "excusable neglect," a defendant must demonstrate "more

than simply . . . a plausible explanation for a failure to file a timely PCR

petition." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). Factors

to be considered include "the extent and cause of the delay, the prejudice to the

State, and the importance of the [defendant's] claim in determining whether

there has been an 'injustice' sufficient to relax the time limits." Afanador, 151

N.J. at 52 (citing Mitchell, 126 N.J. at 580).

Here, defendant filed his PCR petition nearly ten years beyond the five-

year time-bar period. This is extensive delay and thus raises defendant's burden.

Mitchell, 126 N.J. at 580. Defendant argues that he was unaware of trial

counsel's "ineffectiveness within the five-year time frame," and contends that

this lack of awareness constitutes excusable neglect. However, defendant's

certification provides no facts or evidence to support this assertion.

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Furthermore, defendant provides no facts or evidence to establish that

enforcement of the time-bar would result in a fundamental injustice. Finally,

we note exceptional circumstances do not appear in the record.

Even if defendant's ineffective assistance of trial counsel claim were not

time-barred, it is based on bald assertions without any evidential support in the

record whatsoever. See State v. Cummings, 321 N.J. Super 154, 170 (App. Div.

1999). On this record, we cannot conclude that counsel provided ineffective

assistance under the standards set forth in Strickland and State v. Preciose, 129

N.J. 451 (1992). Any other arguments made by defendant lack sufficient merit

to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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