                                NOT FOR PUBLICATION WITHOUT THE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-3670-17T3

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

THOMAS J. D'AMICO,

     Defendant-Appellant.
__________________________

                   Argued March 10, 2020 – Decided May 14, 2020

                   Before Judges Accurso and Gilson.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Union County, Indictment No. 00-06-
                   0676.

                   Adam W. Toraya, Designated Counsel, argued the
                   cause for appellant (Joseph E. Krakora, Public
                   Defender, attorney; Adam W. Toraya, on the brief).

                   Milton Samuel Leibowitz, Special Deputy Attorney
                   General/Acting Assistant Prosecutor, argued the cause
                   of respondent (Lyndsay V. Ruotolo, Acting Union
                   County Prosecutor, attorney; Milton Samuel
                   Leibowitz, of counsel and on the brief).
PER CURIAM

      Defendant Thomas J. D'Amico appeals from the November 3, 2017 order

dismissing his second petition for post-conviction relief (PCR), filed seven

years after the denial of his first petition. He claims the attorney who

represented him on his direct appeal and first PCR application rendered

ineffective assistance of counsel by not arguing that he was denied a fair trial

by the judge's failure to charge the jury, sua sponte, on passion/provocation

manslaughter. The trial court dismissed the claim as time-barred. We agree

and affirm.

      The facts of this brutal killing are fully set forth in the consolidated

opinions of this court in State v. Castagna, 376 N.J. Super. 323, 336-51 (App.

Div. 2005), where we reversed the convictions of defendant and two co-

defendants, Jean Morales and Josephine Castagna, and the Supreme Court,

which reversed our decision as to defendant and Castagna, but affirmed our

decision that Morales should receive a new trial, State v. Castagna, 187 N.J.

293, 300-03 (2006). We do not repeat those facts here, but note only that

defendant, an off-duty police officer, was part of a mob that chased and

savagely beat the victim before Morales, who was convicted of murder in the




                                                                           A-3670-17T3
                                         2
first trial, dropped a twenty-five pound Belgian block on his head as he lay

helpless on the ground. Castagna, 376 N.J. Super. at 331, 341-42.

      Defendant was convicted of first-degree aggravated manslaughter, by

recklessly causing the victim's death under circumstances manifesting extreme

indifference to the value of human life, N.J.S.A. 2C:11-4(a); and two counts of

second-degree official misconduct, N.J.S.A. 2C:30-2(a), but acquitted of first-

degree murder, N.J.S.A. 2C:11-3(a)(1) and (2). Id. at 332. He was sentenced

to twenty years in prison for the manslaughter, subject to the periods of parole

ineligibility and supervision required by the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2, and to a consecutive seven-year term for the official

misconduct. Ibid.

      Defendant filed his first petition for PCR in 2007, which the court

denied following a four-day evidentiary hearing. State v. D'Amico, No. A-

3187-07 (App. Div. May 3, 2010) (slip op at 8). Defendant, who was

represented by the same private counsel who represented him on direct appeal,

did not include trial counsel's failure to seek a passion/provocation charge

among his several claims of ineffective assistance, notwithstanding his obvious

awareness of Morales' success in obtaining a new trial on that ground. Id. at 8-




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                                        3
9. We affirmed, id. at 1, and the Supreme Court denied defendant's petition

for certification, State v. D'Amico, 205 N.J. 79 (2011).

      Defendant filed a habeas petition, which the district court likewise

denied. D'Amico v. Balicki, No. 11-4168 (SDW) (D.N.J. Sep. 6, 2012). The

Third Circuit affirmed, D'Amico v. Balicki, 592 F. App'x 76 (3d Cir. 2014),

and the United States Supreme Court denied defendant's petition for certiorari,

D'Amico v. Holmes, 135 S. Ct. 2362 (2015).

      Two weeks before the United States Supreme Court rendered its decision

on defendant's petition for certiorari, defendant filed a second petition for

PCR, alleging, among other things, that his appellate counsel was ineffective

for failing to argue the "clearly meritorious claim" of trial counsel's failure to

seek a jury instruction on passion/provocation manslaughter, the claim which

had secured Morales a new trial. He also claimed his first PCR counsel, the

same lawyer who represented him on direct appeal, failed to advise him that

"[counsel] could not raise an ineffective claim against himself," entitling

defendant to a new PCR hearing based on his counsel's conflict of interest.

Further, he asserted those claims "should not be time-barred" because they

couldn't have been raised previously. Alternatively, defendant argued that

should the court find the claims could have been raised previously, that failure


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                                         4
provided additional support for his claims of ineffective assistance of counsel

on the part of appellate and PCR counsel.

      The trial court appointed counsel for defendant, who filed a brief on his

behalf. In addition to arguing that defendant received ineffective assistance on

direct appeal and on his first PCR, counsel also argued that defendant's claims

were not procedurally barred, including time-barred under Rule 3:22-12.

Specifically, counsel argued defendant had "established excusable neglect

sufficient to overcome the filing of his petition one year late."

      Second PCR counsel argued defendant sought to have the failure to

charge passion/provocation manslaughter "raised at an earlier time," but his

prior counsel "insisted on raising only issues regarding trial counsel," and that

it was "fundamentally unfair" to impose a procedural bar where defendant's

counsel "failed to raise a critical issue and then tried to hide that failure for ten

years." In a supplemental brief, counsel argued that appellate counsel's

response to defendant's inquiry as to whether counsel had erred on direct

appeal by not raising the jury charge issue Morales successfully asserted —

that if defendant "thinks we did something wrong, he is going to have to find

other counsel" — was "clear ineffective assistance of counsel."




                                                                             A-3670-17T3
                                          5
      The trial court denied defendant's petition following argument. In a

written opinion, the judge noted that pursuant to Rule 3:22-12(a)(2), no second

or subsequent petition for PCR, "[n]otwithstanding any other provision in

[Rule 3:22-12], . . . shall be filed more than one year after the latest of . . . C)

the date of the denial of the first . . . application for post-conviction relief"

where the defendant alleges ineffective assistance of counsel representing him

on that petition. R. 3:22-12(a)(2)(C). The court found defendant's second

petition alleging ineffective assistance of first PCR counsel was filed seven

years and four months after his first petition was denied. Because Rule 3:22-

4(b)(1) mandates dismissal of a second petition unless timely filed under Rule

3:22-12(a)(2), and there is no "fundamental injustice" exception for second

petitions, unlike in Rule 3:22-12(a)(1)(A), the court dismissed defendant's

second petition as time-barred.

      Defendant appeals, raising the following arguments:

             POINT I:

             THE TRIAL COURT MISAPPLIED ITS
             DISCRETION IN APPLYING R. 3:22-4(b) AND R.
             3:22-12(a) (2) AS PROCEDURAL BARS AGAINST
             THE DEFENDANT'S PETITION FOR POST-
             CONVICTION RELIEF IN THIS CASE.

             A. Defendant has a vested right to file a second
             PCR and have it heard under the excusable neglect

                                                                             A-3670-17T3
                                          6
            and fundamental injustice standard because his
            first PCR attorney failed to provide him a true
            first application for post conviction relief.

            B. The trial court misapplied its discretion in
            failing to consider the exception under R. 3: 22-
            12 (a)(2)(b) where the one year time limit starts to
            run upon discovery of-the factual predicate for the
            relief sought.

            C. The trial court misapplied its discretion in
            failing to consider the exception under R. 3:22-
            12 (a)(2)(c) where the one year time limit starts to
            run after the denial of the first PCR petition where
            ineffective assistance of counsel is alleged.

            D. The trial court misapplied its discretion in
            finding that there is no injustice exception for a
            second or subsequent filing for petition for post
            conviction relief.

            E. Enforcement of the procedural time bar in this
            case would force the court to acquiesce to an
            injustice and deny defendant his constitutional
            right to the effective assistance of counsel and
            his constitutional right to a fair trial.

            POINT II:

            THE TRIAL COURT ERRED IN DENYING THE
            DEFENDANT'S PETITION FOR POST
            CONVICTION RELIEF WITHOUT AFFORDING
            HIM AN EVIDENTIARY HEARING TO FULLY
            ADDRESS HIS CONTENTION THAT HE FAILED
            TO RECEIVE ADEQUATE LEGAL
            REPRESENTATION IN HIS CASE.

We reject defendant's arguments as plainly without merit. See R. 2:11-3(e)(2).

                                                                      A-3670-17T3
                                        7
      The trial court was correct that Rule 3:22-12(a)(2) expressly limits the

time in which a second petition for PCR alleging ineffective assistance on the

first petition can be filed to one year following the denial of the first petition.

Amendments to the rule make clear beyond question that the one-year

limitation for second or subsequent petitions is non-relaxable. See R. 3:22-

12(b); R. 3:22-12(a)(2); R. 3:22-4(b); State v. Jackson, 454 N.J. Super. 284,

293 (App. Div.), certif. denied, 236 N.J. 35 (2018); see also R. 1:3-4(c). Rule

3:22-4(b)(1) mandates dismissal of a second petition if untimely under Rule

3:22-12(a)(2).

      Application of those rules here makes plain the trial court was correct in

dismissing defendant's second PCR petition as untimely, and that defendant's

arguments to the contrary are without merit. The rules regarding second PCR

petitions establish that the trial court was without discretion to consider

defendant's arguments due entirely to defendant's late filing. Accordingly, we

affirm the dismissal of defendant's second PCR petition for the reasons

expressed in Judge McDaniel's November 3, 2017 opinion.

      Affirmed.




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