STATE OF NEW JERSEY VS. RODNEY ARMOUR (02-12-2454, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-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On December 16, 2010, we issued an unpublished opinion affirming the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
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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);
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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
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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.
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(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).
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Affirmed.
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