                        NOT FOR PUBLICATION WITHOUT THE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-3593-15T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

CHARLES NOBLE, a/k/a GERARD ALSTON,
a/k/a GERARD FURQUAN, a/k/a GERALD
ALSTON,

     Defendant-Appellant.
______________________________________

              Submitted May 23, 2017 – Decided July 18, 2017

              Before Judges Leone and Vernoia.

              On appeal from the Superior Court of New
              Jersey, Law Division, Essex County, Indictment
              No. 95-08-2645.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Anderson D. Harkov, Designated
              Counsel, on the brief).

              Carolyn A. Murray, Acting Essex County
              Prosecutor, attorney for respondent (Frank J.
              Ducoat, Special Deputy Attorney General/
              Acting Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM
     Defendant appeals an order denying his post-conviction relief

(PCR) petition without an evidentiary hearing. We affirm.

     Following a 1996 jury trial, defendant was convicted of third-

degree     theft    of    movable       property,     N.J.S.A.      2C:20-3(a).1         At

defendant's      May     15,    1996    sentencing,       the   court     considered      a

presentence report that had been used on January 16, 1996 in

connection with defendant's sentencing on unrelated charges. The

presentence report, however, also included a May 15, 1996 "UPDATE"

addendum prepared by the probation department. It listed the

offense for which defendant was being sentenced, the charges and

sentence    in     the   January       1996   matter,     and   a   gap    time    credit

calculation. Defendant's counsel advised the court he reviewed the

presentence      report        and   there    were   no    amendments      or     changes

required.

     Defendant was sentenced on the third-degree theft conviction

to a five-year custodial term with a two-and-a-half year period

of parole ineligibility. The court ordered that the sentence run

consecutively to the custodial sentence defendant received in



1
  On defendant's direct appeal we noted that his judgment of
conviction erroneously stated he was convicted of first-degree
carjacking, N.J.S.A. 2C:15-2, and directed that the judgment of
conviction be corrected. State v. Alston, No. A-7653-95 (App. Div.
June 18, 1998) (slip op. at 1, n. 1). The record on appeal does
not include a corrected judgment of conviction.


                                              2                                   A-3593-15T1
January 1996. Defendant's conviction and sentence were affirmed

on appeal. Alston, supra, slip op. at 4.

     On December 19, 2014, defendant filed a pro se PCR petition

alleging his trial counsel was ineffective because he allowed the

court   to    sentence     defendant   based   on    the   presentence    report

prepared for use in the January 1996 matter. Defendant further

alleged his sentence was illegal because the court relied on the

presentence report in the prior matter. Following the assignment

of counsel, the court heard oral argument on the petition.

     In a detailed written opinion the court found the petition

was time barred under Rule 3:22-12(a)(1) because it was filed

eighteen years after entry of defendant's judgment of conviction

and defendant failed to demonstrate excusable neglect for the late

filing.      The   judge   also   addressed    the   merits   of   defendant's

petition, finding defendant did not demonstrate his attorney's

performance was constitutionally deficient or that he suffered

prejudice as a result of his counsel's alleged error. The court

entered      an    order   denying     defendant's    petition     without      an

evidentiary hearing. This appeal followed.

     On appeal, defendant makes the following arguments:

              POINT ONE

              THE TIME BAR OF R. 3:22-12 SHOULD NOT BE
              APPLIED TO DEFENDANT'S PETITION FOR POST
              CONVICTION RELIEF[.]

                                        3                                A-3593-15T1
            POINT TWO

            THE PCR COURT ERRED WHEN IT FAILED TO GRANT
            DEFENDANT'S  REQUEST   FOR  AN  EVIDENTIARY
            HEARING[.]

            POINT THREE

            THE FAILURE OF TRIAL COUNSEL TO OBJECT TO A
            SENTENCE PROCEEDING THAT WAS ILLEGAL BECAUSE
            IT VIOLATED R. 3:21-2 AND N.J.S.A. 2C:44-6,
            WHICH REQUIRE A SENTENCING COURT TO ORDER A
            PRESENTENCE REPORT, DEPRIVED DEFENDANT OF HIS
            CONSTITUTIONAL   RIGHT   TO   THE   EFFECTIVE
            ASSISTANCE OF COUNSEL[.]

     We review the legal conclusions of a PCR court de novo. State

v. Harris, 181 N.J. 391, 419 (2004), cert. denied, 545 U.S. 1145,

125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).       The de novo standard

of review applies to mixed questions of fact and law. Id. at 420.

Where an evidentiary hearing has not been held, it is within our

authority "to conduct a de novo review of both the factual findings

and legal conclusions of the PCR court." Id. at 421 (emphasis

omitted).    We apply those standards here.

     We find no merit in defendant's argument that the court erred

by finding his petition was time barred under Rule 3:22-12(a)(1).

A PCR petition must be filed within five years of the entry of the

judgment    of   conviction   unless   the    defendant   demonstrates

"excusable neglect" for missing the deadline and that "there is a

reasonable probability that if the defendant's factual assertions



                                  4                            A-3593-15T1
were found to be true enforcement of the time bar would result in

a fundamental injustice." R. 3:22-12(a)(1).

       The PCR petition must allege facts sufficient to demonstrate

excusable    neglect   and   fundamental        injustice   under    Rule   3:22-

12(a)(1). See State v. Mitchell, 126 N.J. 565, 577 (1992) (finding

that a PCR "petition itself must allege the facts relied on to

support the claim"); State v. Cann, 342 N.J. Super. 93, 101-02

(App. Div.) ("A [PCR] petition is time-barred if it does not claim

excusable neglect, or allege the facts relied on to support that

claim."), certif. denied, 170 N.J. 208 (2001). "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. Afandafor, 151 N.J. 41, 52 (1997); see also State

v. Brewster, 429 N.J. Super. 387, 400 (App. Div. 2013) (finding a

lapse of almost seven years following the five-year deadline

"undercuts     a   finding   of   excusable       neglect    and    fundamental

injustice").

       Here, defendant's petition was filed more than eighteen years

following the entry of the judgment of conviction. His petition

is devoid of any claim of excusable neglect justifying the late

filing of his petition, or facts supporting a finding of excusable

neglect. Moreover, as we will explain, defendant has failed to

show   a   fundamental   injustice.       The    court   therefore    correctly

                                      5                                 A-3593-15T1
determined defendant's petition was time barred under Rule 3:22-

12(a)(1). Cann, supra, 342 N.J. Super. at 101-02.

     Defendant argues he is not required to show excusable neglect

because    the    court   imposed      an       illegal   sentence   that    may    be

challenged   at    any    time    under     Rule     3:21-10(b)(5).    He   asserts

imposition of the sentence resulted in a fundamental injustice.

He asserts that his sentence is illegal because the court did not

obtain a new presentence report for his May 1996 sentencing and

instead relied on the report used at his January 1996 sentencing,

as updated by the addendum. We disagree.

     A    court   must    order    a   presentence         investigation     of    the

defendant before imposing a sentence, and must accord it due

consideration. N.J.S.A. 2C:44-6; R. 3:21-2(a); see also State v.

Mance, 300 N.J. Super. 37, 65 (1997) (remanding for resentencing

where the court relied on an outdated presentence report). Even

assuming the use of the updated January 1996 presentence report

violated these provisions, it did not affect the legality of

defendant's sentence.

     "[A]    truly    'illegal' sentence can              be   corrected    'at    any

time.'" State v. Acevedo, 205 N.J. 40, 47 n.4 (2011) (quoting R.

3:21-10(b)(5); R. 3:22-12). "[A]n illegal sentence is one that

'exceeds the maximum penalty provided in the Code for a particular

offense' or a sentence 'not imposed in accordance with law.'" Id.

                                            6                                A-3593-15T1
at 45 (quoting State v. Murray, 162 N.J. 240, 247 (2000)). A

sentence    "not    imposed      in     accordance    with     law"   includes          a

"disposition [not] authorized by the Code." Murray, supra,, 162

N.J. at 247. However, "mere excessiveness of sentence otherwise

within authorized limits, as distinct from illegality by reason

of being beyond or not in accordance with legal authorization, is

not an appropriate ground of post-conviction relief and can only

be raised on direct appeal from the conviction." State v. Clark,

65 N.J. 426, 437 (1974).

     In Acevedo, supra, the Court held that although the trial

judge failed to state reasons for imposing consecutive sentences

as required, the sentence was not illegal. 205 N.J. at 45-47. The

Court explained the "defendant's contentions regarding consecutive

sentences   or     the    absence     of    reasons   for     imposition    of       the

consecutive sentences [did] not relate to the issue of sentence

'legality,'"     and     thus,   were      not   cognizable    on   PCR    or     under

Rule 3:21-10(b)(5). Id. at 47.

     The same is true here. Defendant's sentence was within the

permissible sentencing range, and was authorized by the Code.

Similar to the court's failure to state its reasons for imposing

consecutive sentences in Acevedo, the court's reliance on an

allegedly outdated presentence report did not affect the legality

of defendant's sentence.

                                           7                                    A-3593-15T1
     Defendant's reliance on Mance, supra, 300 N.J. Super. 37, is

misplaced. Although in Mance we remanded for resentencing where

the trial court relied on a presentence report that was over

fifteen years old, the issue was raised on direct appeal. Id. at

44, 65. Here, because defendant's argument regarding the failure

to obtain a new presentence report "[does] not relate to the issue

of sentence 'legality,'" it is not cognizable in a PCR proceeding

and does not provide grounds for relief under Rule 3:21-10(b)(5).

Acevedo, supra, 205 N.J. at 47.

     In any event, the presentence report here was not fifteen

years out of date.      The January 1996 presentence report was updated

by the probation department with a May 15, 1996 addendum that was

current on the date of sentencing. Defendant does not offer any

information he contends would have been included in an entirely

new presentence report that was not included in the updated

presentence    report    relied   upon   by   the   court   at   defendant's

sentencing.

     Defendant's remaining arguments are without sufficient merit

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

add only the following comments.

     To sustain his burden of establishing an entitlement to PCR

based   on   the   alleged   ineffectiveness     of   his   trial   counsel,

plaintiff was required to show that his counsel's handling of

                                     8                               A-3593-15T1
defendant's   sentencing      "fell   below    an       objective    standard         of

reasonableness," and that there exists a "reasonable probability

that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." Strickland v. Washington,

466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d

674, 693, 698 (1984); see also State v. Fritz, 105 N.J. 42, 58

(1987) (adopting Strickland standard for determination of PCR

petitions alleging ineffective assistance of counsel claims under

the New Jersey Constitution).

     For the reasons stated by the PCR court, we are satisfied

defendant failed to sustain his burden of demonstrating his trial

counsel's performance was deficient and there was a reasonable

probability   he   suffered    prejudice      as    a    result     of   his     trial

counsel's alleged error in permitting the sentencing court to rely

on the updated presentence report. And because defendant failed

to sustain his burden, the court did not err in denying defendant's

request for an evidentiary hearing. See State v. Porter, 216 N.J.

343, 354 (2013); R. 3:22-10(b).

     Affirmed.




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