STATE OF NEW JERSEY VS. ANTIONE PARSLEY (11-04-0229, SALEM COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-1912-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTOINE A. PARSLEY, a/k/a
ANTWIONE A. PARSLEY
Defendant-Appellant.
__________________________
Submitted January 27, 2021 – Decided February 11, 2021
Before Judges Alvarez and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Salem County, Indictment No. 11-04-0229.
Antoine A. Parsley, appellant pro se.
John T. Lenahan, Salem County Prosecutor, attorney
for respondent (David Galemba, Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant Antoine A. Parsley appeals from a December 20, 2019 order
dismissing his second petition for post-conviction relief (PCR) as time-barred
pursuant to Rule 3:22-4(b). We affirm for the reasons stated by Judge Sandra
Lopez in her well-reasoned written decision.
Defendant was convicted of fourth-degree aggravated assault (count four),
N.J.S.A. 2C:12-1(b)(4); second-degree possession of a firearm for an unlawful
purpose (count five), N.J.S.A. 2C:39-4(a); second-degree unlawful possession
of a handgun (count six), N.J.S.A. 2C:39-5(b); and second-degree possession
of a weapon by a certain person (count seven), N.J.S.A. 2C:39-7(b)(1). The
jury was unable to reach a verdict on three other counts; those charges were
subsequently dismissed.
On March 20, 2012, defendant was sentenced to an aggregate nine-year
term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We
affirmed defendant's conviction on direct appeal but remanded for merger of
counts four and five. State v. Parsley, No. A-2001-12 (App. Div. April 6, 2015).
On May 15, 2015, defendant was resentenced to add the mandatory parole
supervision under NERA and to merge counts four and five. On December 15,
2015, we affirmed the modified sentence on an oral argument sentencing
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calendar pursuant to Rule 2:9-11. The Supreme Court denied certification. State
v. Parsley, 224 N.J. 247 (2016).
We recounted the underlying facts in our prior opinion:
Defendant had accused the victim of having provided
the authorities with information regarding his illegal
activities. Defendant ended the argument by throwing a
bicycle and a stroller at the victim, and telling him he
was "about to clear the street." The victim heard
defendant make a phone call during which he told
someone to "bring Roscoe," which he understood to be
a reference to defendant’s handgun. Later on, the
victim saw defendant’s car, was told to "watch out,"
and saw defendant standing behind a school bus
between two houses and pointing a gun in his direction.
The victim and another person fled the area when they
heard gunshots.
When the incident occurred, the Salem County
Prosecutor’s Office had coincidentally been
intercepting defendant’s cell phone communications
pursuant to a warrant, related to an ongoing narcotics
investigation as well as an investigation related to
another shooting. Approximately half an hour after the
shooting, the victim called defendant. Defendant was
recorded making reference to the fact that the person
defendant had been shooting at was not the victim, but
someone else. Some of the intercepted conversations
were played to the jury. All had been obtained pursuant
to an electronic wiretap warrant.
[State v. Parsley, No. A-3659-17 (App. Div. May 8,
2019) (slip op. at 2-3).]
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Defendant filed his first PCR petition on March 14, 2016. Counsel was
appointed to represent him. On June 13, 2017, the PCR court issued an order
and accompanying comprehensive written decision denying the petition without
an evidentiary hearing. We affirmed substantially for the reasons expressed by
the PCR judge. Id. at 2. The Supreme Court denied certification. State v.
Parsley, 240 N.J. 91 (2019).
On November 15, 2019, defendant filed a pro se second PCR petition. In
it he claimed that first PCR counsel was ineffective by failing to investigate trial
counsel's failure to investigate and call three potential fact witnesses. He
contended that an investigator should have been used to interview the potent ial
witnesses, but PCR counsel failed to apply to the Public Defender for ancillary
services. Defendant claimed that the witnesses, Jamaal Shockley, Dondi
Cabbell, and George Booker, would have provided statements attesting that
defendant was not in the area at the time of the alleged crime.
In his petition, defendant states that he requested trial counsel to interview
the witnesses but counsel, who was privately retained, advised that he required
an additional $7500 immediately to do so. Defendant does not contend that sum
was paid. Counsel continued to represent defendant through trial but did not
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retain a private investigator or personally investigate, interview, or call any of
the potential witnesses.
Defendant further asserts that he advised first PCR counsel of trial
counsel's failure to investigate his witnesses. Defendant provided PCR counsel
with a copy of Shockley's certification and asked counsel to interview Cabbell
and Booker. Shockley's certification stated he was never contacted by trial
counsel. It also stated he was willing to testify in court to the following facts:
On August 28, 2010 I was sitting on my kids' mother's
porch . . . with her, our kids, Leslie Bundy and others
around [9 p.m.] until [2 a.m.]. A few hours later like
[12 a.m.] or [1 a.m.] a dark skin tall guy with a black
hat on dressed in all black was on the side of the house
further down the street by a yellow school bus shooting
a gun in the air. [Antione] was never on Sinnickson
Street this night and was not the person shooting.
Defendant submitted a certification by Booker that stated he was willing
to testify in court to the following facts:
I was on Sinnickson Street around [10 p.m.] till
[2 a.m.] in front of Jovan Roots' house on August 28,
2010. Jovan Roots, her daughter, Jamaal Shockley,
Leslie Bundy, me and a few people [were] hanging out
in front of Jovan's talking. Sometime around [1 a.m.] I
[saw] a [six-foot] tall black male with all black on, with
a black hat come from a side of a[] house by the corner
of Sinnickson Street on the same side where we [were]
standing firing a gun in the air by a yellow school bus.
Leslie Bundy and I ran[] up Sinnickson Street to Olive
Street and went our separate way. I['ve] known
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[Antione] Parsley since he was a kid and he was not the
shooter in this incident. [Antione] Parsley wasn't on
Sinnickson Street at all during this day and time.
Defendant stated he advised PCR counsel that had trial counsel
interviewed Cabbell, he was prepared to testify that there was no altercation
between Cabbell and defendant that night and that Cabbell was not on
Sinnickson Street that night.
Defendant argued that PCR counsel was ineffective by failing to
independently investigate, review and raise his claims. He further alleged that
he had not received a copy of PCR counsel's or the State's briefs prior to the
hearing and thus had no prior knowledge of the evidence or arguments that PCR
counsel would be presenting. Defendant also alleged that he was informed by
attorney Suzannah Brown that he could raise the issue of ineffective PCR
counsel in a second PCR petition if he were not successful on his first petition.
Defendant took that "to mean that he would need to file a second PCR only if
and when he lost his PCR appeal." Defendant stated he was unaware there was
a one-year time limitation to file a second PCR petition and the delayed filing
was due to excusable neglect. He argued that enforcement of the time-bar would
result in a fundamental injustice.
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Judge Lopez found that defendant's petition was time-barred because: (1)
it was not based on a new rule of constitutional law, R. 3:22-12(a)(2)(A); (2)
"defendant knew PCR counsel failed to conduct an independent review of his
claims over one year before filing his second PCR petition," R. 3:22-
12(a)(2)(B); and (3) "defendant's second petition was not filed within one year
of the date of the denial of his first PCR on June 13, 2017," R. 3:22-12(a)(2)(C).
As to defendant's claim of excusable neglect, Judge Lopez explained that
Rule 1:3-4 precluded enlarging the time limitations specified in Rule 3:22-12
and "are not subject to relaxation" under Rule 1:1-2. In addition, Rule 3:22-
12(b) provides that the time limits imposed by the rule "shall not be relaxed,
except as provided herein." A second PCR petition must be dismissed pursuant
to Rule 3:22-4(b) unless "it is timely under [Rule] 3:22-12(a)(2)" and "it alleges
on its face" one of the three grounds enumerated in Rule 3:22-4(b)(2). Relying
on State v. Jackson, 454 N.J. Super. 284 (App. Div. 2018), the judge held that
"neither excusable neglect nor fundamental injustice permits enlargement of
time for filing a second or subsequent PCR petition." This appeal followed.
In this appeal, defendant raises a single point:
THIS MATTER SHOULD BE REMANDED AS THE
PCR COURT'S HOLDING THAT "EXCUSABLE
NEGLECT NOR FUNDAMENTAL INJUSTICE
PERMITS ENLARGEMENT OF TIME FOR FILING
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A SECOND OR SUBSEQUENT PCR PETITION"
CONTRAVENES CLEARLY ESTABLISHED LAW.
We agree with Judge Lopez that defendant's second PCR petition was
time-barred pursuant to Rule 3:22-4(b). The record fully supports her findings
that: (1) defendant did not file his petition within one year after the date of the
denial of his first PCR petition; (2) "defendant knew PCR counsel failed to
conduct an independent review of his claims over one year before filing his
second PCR petition"; and (3) the petition was not based on a new rule of
constitutional law. See R. 3:22-12(a)(2). Accordingly, the one-year filing
deadline imposed by Rule 3:22-12(a)(2) could not be extended by a showing of
excusable neglect or that enforcement of the time-bar would result in
fundamental injustice. See Jackson, 454 N.J. Super. at 293-94. For these
reasons, the petition was properly dismissed without conducting an evidentiary
hearing.
Defendant's argument lacks sufficient merit to warrant further discussion
in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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