STATE OF NEW JERSEY VS. TODD M. CALLAN (11-08-1432, OCEAN COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-3818-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TODD M. CALLAN,
Defendant-Appellant.
___________________________
Submitted June 1, 2020 – Decided June 15, 2020
Before Judges Moynihan and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Law Division, Ocean County, Indictment No. 11-08-
1432.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).
Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel J. Marzarella, of
counsel; Cheryl L. Hammel, Assistant Prosecutor, on
the brief).
PER CURIAM
Defendant Todd M. Callan appeals from the March 26, 2019 order of the
trial court denying his second petition for post-conviction relief (PCR). We
agree with the trial court that defendant's second PCR petition was untimely and
affirm.
On August 11, 2011, an Ocean County Grand Jury indicted defendant on
one count of resisting arrest and eluding a police officer, N.J.S.A. 2C:29 -2(b).
In 2012, a jury found defendant guilty, and the trial court sentenced defendant
to ten years' prison time with five years' parole ineligibility. Defendant appealed
his conviction and sentence, which we affirmed in an August 2014 unpublished
opinion. State v. Callan, No. A-0593-12 (App. Div. Aug. 12, 2014) (slip op. at
17). Defendant sought certification of our decision, which the Supreme Court
denied. State v. Callan, 220 N.J. 573 (2015).
Defendant filed a PCR petition in March 2015, which Judge James M.
Blaney denied on October 3, 2016. Defendant appealed Judge Blaney's denial.
He filed a second petition for PCR on December 29, 2017. Judge Blaney
dismissed defendant's second PCR petition without prejudice because the direct
appeal of his first PCR petition was still pending. On May 31, 2018, we affirmed
Judge Blaney's decision denying defendant's first PCR petition. State v. Callan,
No. A-1303-16 (App. Div. May 31, 2018) (slip op. at 7). Defendant sought
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certification of the denial, which the Supreme Court denied. State v. Callan,
236 N.J. 116 (2018). In July 2018, defendant filed a second application for PCR.
Judge Guy P. Ryan entered an order requiring defendant to show cause as to
why his second PCR application was timely. After hearing oral argument, Judge
Ryan found that defendant's second PCR application was untimely, as defendant
failed to file his second petition for PCR within one year of the denial of his first
PCR petition. Thus, Judge Ryan denied his application. This appeal ensued.
On appeal, defendant presents the following argument for our review:
DEFENDANT'S SECOND PCR
PETITION SHOULD NOT HAVE BEEN
DISMISSED AS UNTIMELY;
THEREFORE, THIS MATTER MUST BE
REMANDED FOR A DETERMINATION
ON THE SECOND PETITION'S MERITS.
We review Judge Ryan's legal conclusions de novo, see State v. Harris, 181 N.J.
391, 419 (2004), and conclude that defendant's argument has no merit.
Rule 3:22-12(a) provides in relevant part:
(2) Second or Subsequent Petition for Post-Conviction
Relief. Notwithstanding any other provision in this
rule, no second or subsequent petition shall be filed
more than one year after the latest of:
(A) the date on which the constitutional right asserted
initially was recognized by the United States Supreme
Court or the Supreme Court of New Jersey, if that right
has been newly recognized by either of those Courts
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and made retroactive by either of those Courts to cases
on collateral review; or
(B) the date on which the factual predicate for the relief
sought was discovered, if that factual predicate could
not have been discovered earlier through the exercise
of reasonable diligence; or
(C) the date of the denial of the first or subsequent
application for post-conviction relief where ineffective
assistance of counsel that represented the defendant on
the first or subsequent application for post-conviction
relief is being alleged.
Rule 3:22-12(b) provides that "[t]hese time limitations shall not be relaxed,
except as provided herein." The plain language of the Rule deprives the trial
court of discretion to expand the time frames set forth by the Rule, unless the
provisions of subsection 2(A) or 2(B) apply.
Neither subsection 2(A) nor subsection 2(B) of the Rule are implicated in
this case. Both of defendant's PCR applications alleged ineffective assistance
of counsel. A straightforward application of subsection 2(C) inescapably leads
to the conclusion that defendant's application is time-barred. In that regard,
Judge Blaney denied defendant's first PCR application on October 3, 2016.
Defendant filed his second PCR application on December 29, 2017, more than
one year after his first application was denied. Accordingly, the trial court
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correctly determined defendant's second PCR petition was time-barred by Rule
3:22-12(a)(2)(C).
To the extent we have not addressed any of defendant's remaining
arguments, we conclude that they are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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