                                NOT FOR PUBLICATION WITHOUT THE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-2336-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RODNEY ARMOUR,

     Defendant-Appellant.
_______________________

                   Submitted May 14, 2020 – Decided June 26, 2020

                   Before Judges Alvarez and Suter.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Monmouth County, Indictment No. 02-12-
                   2454.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Andrew Robert Burroughs, Designated
                   Counsel, on the brief).

                   Christopher J. Gramiccioni, Monmouth County
                   Prosecutor, attorney for respondent (Monica Lucinda
                   do Outeiro, Assistant Prosecutor, of counsel and on the
                   brief).

PER CURIAM
      On December 1, 2006, defendant Rodney Armour was finally resentenced

as an extended-term offender to twenty years imprisonment subject to the

eighty-five percent parole bar found in the No Early Release Act, N.J.S.A.

2C:43-7.2. The sentence was imposed after his conviction by a jury of second-

degree robbery, N.J.S.A. 2C:15-1. During the trial, defendant was identified by

the robbery victim, who spent several minutes in defendant's company, as well

as an employee of a nearby store who witnessed the robbery and contacted the

authorities, in addition to a videotape from a nearby store surveillance camera.

On November 5, 2018, a Law Division judge denied defendant's second post -

conviction relief (PCR) petition. For the reasons that follow, we affirm.

      We need recount only the latter portion of the procedural history in the

matter so that our decision is placed in the appropriate context. Defendant’s

first PCR petition was denied on August 15, 2008.         Defendant was then

represented by Project Freedom Fund, an entity later found to have violated the

New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -224.

      On December 16, 2010, we issued an unpublished opinion affirming the

Law Division's denials of defendant's first PCR petition. State v. Armour, No.

A-0672-08 (App. Div. Dec. 16, 2010).          On this appeal, defendant was




                                                                        A-2336-18T2
                                       2
represented by private counsel. The Supreme Court denied certification. State

v. Armour, 206 N.J. 330 (2011).

      Defendant next filed an application for a new trial based on the theory that

an incomplete latent fingerprint found on the victim's automobile could no w be

submitted for more sophisticated testing techniques that became more widely

available since his trial. In addition, in that application, defendant also sought

a new trial based on ineffective assistance of counsel. Defendant's second point

on the appeal of the denial of that motion read as follows:

            POINT II

                  ....

            B.  THE TRIAL COURT ERRONEOUSLY
            FAILED    TO   ADDRESS     [DEFENDANT'S]
            ARGUMENT FOR A NEW TRIAL BASED ON
            INEFFECTIVE ASSISTANCE OF [PCR] COUNSEL.

            [State v. Armour, 446 N.J. Super. 296, 305 (App. Div.
            2016).]

      In our decision affirming the trial court's November 21, 2014 order

denying defendant's petition for a new trial, we deferred defendant's ineffective

assistance of counsel claims "to a PCR petition.          See R. 3:22-12(a)(2)

(permitting the filing of a second or subsequent PCR if that petition alleges the

ineffective assistance of PCR counsel, subject to certain time restrictions);


                                                                          A-2336-18T2
                                        3
R. 3:22-4(b)." Id. at 317. We did not discuss the issue of the time bar, deferring

any discussion to a further application but noting the fact it could be barred for

that reason.

      Pursuant to Rule 3:22-12(a)(2), second or subsequent petitions for PCR

must be filed no later than one year after the denial of post-conviction relief.

The rule specifically applies the one-year limit to cases in which the allegation

of ineffective assistance of counsel is being levied against counsel on the first

PCR petition. Generally, first petitions for post-conviction relief must be made

no more than five years after the date of entry of a judgment of conviction. See

R. 3:22-12(a)(1).

      This second PCR petition alleged ineffective assistance of trial counsel,

appellate counsel, and PCR counsel. All those claims exceed the time bars found

in the rules. Whether this petition's filing date—March 30, 2017—is juxtaposed

against the August 15, 2008 Law Division order denying the first PCR petition,

or the November 21, 2014 Law Division order that did not grant a new trial

based on ineffective assistance of counsel, it is clear that defendant's most recent

PCR application is untimely. This application was filed, at the earliest date, on




                                                                            A-2336-18T2
                                         4
March 30, 2017.1 For the sake of completeness, we set forth defendant's points

on appeal:

             POINT I

             AS [DEFENDANT] RECEIVED INEFFECTIVE
             ASSISTANCE OF PCR COUNSEL ON HIS FIRST
             PETITION FOR POST-CONVICTION RELIEF, HE IS
             ENTITLED TO RELIEF.

             POINT II

             TRIAL AND APPELLATE COUNSEL FAILED TO
             PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL
             AS REQUIRED UNDER THE SIXTH AMENDMENT.

                  (1) Appellate counsel was ineffective when he
                  failed to argue that the trial court erred when it
                  failed to dismiss the indictment.

                  (2) Trial counsel's errors denied [defendant] his
                  constitutional right to testify at trial.

                  (3) Trial counsel was ineffective by failing to
                  present a complete defense.

                  (4) Trial counsel failed to object to the State's
                  prejudicial remarks at trial and appellate counsel
                  was ineffective by failing to raise the matter on
                  direct appeal.



1
   Defendant's attorney did not provide a filed copy of the 2006 judgment of
conviction, nor the PCR petition from which defendant appeals.        See R.
2:6-1(a)(1). Defendant signed his second PCR petition on March 30, 2017. We
therefore use that date for our discussion.
                                                                       A-2336-18T2
                                       5
                  (5) Trial and appellate counsel failed to object to
                  improper jury charges that had been presented to
                  the jury.

                  (6) Counsel's cumulative errors denied
                  [defendant] effective legal representation.

            POINT III

            THE PCR COURT ERRED WHEN IT FOUND
            [DEFENDANT’S]     CLAIMS     WERE
            PROCEDURALLY BARRED.

            POINT IV

            AS THERE ARE GENUINE ISSUES OF MATERIAL
            FACT IN DISPUTE, AN EVIDENTIARY HEARING
            WAS REQUIRED.

      All defendant's claims are time barred.   Defendant's second PCR petition

should have been filed on or before August 15, 2009. No doubt seeking to avoid

imposition of the time bar, the motion for a new trial that included claims of

ineffective assistance of counsel was merely styled "motion for a new trial"

rather than a petition for PCR. Nonetheless, even if we consider the time frame

here most favorably to defendant, the Law Division order that denied his

application for a new trial based on claims of ineffective assistance of counsel

and additional fingerprint testing was entered November 21, 2014. The within

application came two and one-half years after that date. Defendant's arguments

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

                                                                          A-2336-18T2
                                        6
Affirmed.




                A-2336-18T2
            7
