Full Opinion

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1437-24 STATE OF NEW JERSEY, Plaintiff-Respondent, v. DARIEN E. GREENE, a/k/a STICKS GREEN, DARIEN D. GREEN, STICKS GREENE, DARIAN GREENE, and STYX GREENE, Defendant-Appellant. _______________________ Submitted October 13, 2026 – Decided October 29, 2026 Before Judges Sabatino and Perez Friscia. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 16-05- 0328. Jennifer N. Sellitti, Public Defender, attorney for appellant (Jeffrey L. Weinstein, Designated Counsel, on the briefs). LaChia L. Bradshaw, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief). PER CURIAM Defendant Darien E. Greene appeals from the November 21, 2024 trial court order denying his petition for post-conviction relief ("PCR") without an evidentiary hearing. Defendant contends he has demonstrated ineffective assistance of counsel ("IAC") because evidence regarding his mental health conditions existed that was not admitted at trial. He further argues an evidentiary hearing on the PCR petition was warranted. Having reviewed the record, parties' arguments, and applicable law, we affirm. I. In May 2016, a grand jury charged defendant with second-degree disarming a law enforcement officer, N.J.S.A. 2C:12-11(a) (count one), third- degree resisting arrest by using or threatening to use physical force or violence against an officer or other person while resisting arrest, N.J.S.A. 2C:29- 2(a)(3)(a) (count two), and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2) (count three). Defendant was also charged on a warrant with the disorderly persons offense of improper behavior, N.J.S.A. 2C:33-1(a)(1). A-1437-24 2 On December 14, 2016, after a bench trial, defendant was convicted of the indictable offenses. On May 26, 2017, the court sentenced defendant on count one to a six-year term of imprisonment, subject to a mandatory eighty-five percent period of parole ineligibility under the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. The court imposed a four-year term of imprisonment on count two and an eighteen-month term of imprisonment on count three, both to be served concurrently to count one. The disorderly persons offense was dismissed by consent. The court advised defendant of his rights to appeal within forty-five days and to file a petition for PCR within five years. The court also inquired if defendant had discussed his appeal rights with counsel, and defendant responded, "Yes." On July 14, 2017, the court held another hearing to address defendant's sentence and the period of parole ineligibility ordered on count one. The court found NERA was inapplicable to count one and "a flat sentence of incarceration should have been imposed." The court again advised defendant he had forty- five days from the sentence to file an appeal and five years to petition for PCR. The court asked defendant if he "underst[ood] th[e] two time frames," and defendant replied, "Yes." A-1437-24 3 On August 21, 2017, the court entered an amended judgment of conviction ("JOC") removing the NERA term of ineligibility on count one. Defendant thereafter moved for reconsideration of the imposed sentence, which the court denied on October 18, 2017. After defendant appealed, we affirmed his conviction but reversed and remanded in part "for resentencing to afford the judge the opportunity to clarify his findings relative to [mitigating factor eleven]," N.J.S.A. 2C:44-1(b)(11). State v. Greene (Greene I), No. A-0087-18 (App. Div. June 7, 2022) (slip op. at 23), certif. denied, 252 N.J. 468 (2023).1 On February 27, 2023, defendant filed a self-represented PCR petition, which PCR counsel supplemented. Defendant asserted trial counsel was ineffective for failing to properly investigate relevant issues, call witnesses, provide an opening statement, file an appeal, and advise him properly prior to testifying. PCR counsel's supplemental brief argued IAC and requested "a new trial or . . . an evidentiary hearing to determine whether [trial] counsel had a viable reason not to use the evidence he possessed." PCR counsel specifically argued defendant's mental health issues, which included "attention deficit hyperactivity disorder [("ADHD")]," bipolar disorder, and depression with a 1 On April 1, 2024, the court addressed our remand regarding mitigating factor eleven, determining it did not apply. A-1437-24 4 history of psychiatric problems and hospitalizations, supported presenting the defenses of "diminished capacity" and "insanity." Further, PCR counsel argued trial counsel should have introduced defendant's "mental health records and testimony from treating physicians, lay witnesses[,] and experts" in support of the defenses. Defendant submitted a certification, including a timeline of his PCR petition. He maintained that a notice received from his appellate counsel, indicating PCR petitions must be filed within five years, led him to believe he had five years to file a petition after he had "exhaust[ed his] appellate remedies." On September 25, 2024, the PCR court heard argument on defendant's petition. On November 21, 2024, the court issued an order accompanied by an eleven-page statement of reasons denying defendant's PCR petition. The court found defendant's petition was untimely pursuant to Rule 3:22-12(a)(1) given he was resentenced on July 14, 2017, and had filed his PCR application on February 23, 2023, which was five years and seven months after resentencing. The court determined there was neither excusable neglect nor reasonable confusion based on appellate counsel's letter because the correspondence did not indicate "defendant has to exhaust his appellate rights before filing for [PCR]." In finding no exceptional circumstances to extend the PCR filing period, the court A-1437-24 5 noted it had explained to defendant on two occasions the filing time periods and he had also twice "signed the [n]otice of [a]ppeal[] [r]ights form which explicitly states the five-year time frame for filing a PCR petition." The court was unpersuaded by defendant's argument that under Rule 1:1-2(a), an "injustice by a preponderance of the credible evidence" was established. For completion, the court nevertheless addressed defendant's PCR petition on the merits, reviewing his contentions under the PCR framework established under the court rules and the two-prong IAC test enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984), as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). The court recognized defendant's mental health history, including his ADHD, bipolar disorder, and depression. Regarding defendant's argument that trial counsel failed to call witnesses to support a diminished capacity or insanity defense, the court found "no . . . evidence that demonstrated [he] was laboring under such a defect of reason from disease of the mind as to not know the nature and quality of the act, or if [he] did know it, that he did not know that what he was doing was wrong." The court further determined, "there [wa]s no evidence that establishe[d] defendant failed to possess the requisite state of mind at the time of the offense." A-1437-24 6 In regard to defendant's proffered medical records from 2013 and 2014, the court reasoned they were too remote in time and did "not otherwise support either mental health defense." The court noted defendant was not suffering symptoms and possessed normal perceptions at the time of the committed offenses. The court also highlighted defendant offered no other evidence to support the defenses. It provided "defendant [did] not establish[] that the results of the bench trial would have been different with the addition of expert testimony, additional witnesses asserting petitioner's emotional state, or the pursuit of additional mental health defenses." The court recounted the strong evidence the State admitted during the bench trial and found that "trial counsel's decision to not call [defendant's asserted] witnesses at trial was strategic and not otherwise deficient." Because defendant failed to make a prima facie showing of IAC, the court denied an evidentiary hearing. This appeal followed. On appeal, defendant asserts the following arguments: POINT I THE PCR COURT ERRED IN FINDING THAT THE PETITION WAS PROCEDURALLY BARRED BECAUSE THE NEGLECT WAS EXCUSABLE AND ALLOWING THE LATE FILING IS IN THE INTERESTS OF JUSTICE DUE TO THE MINIMAL DELAY IN FILING. A-1437-24 7 POINT II TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO RAISE AN INSANITY DEFENSE OR A DIMINISHED CAPACITY DEFENSE BASED UPON KNOWN DOCUMENTATION OF PETITIONER'S HISTORY OF MENTAL ILLNESS. II. When a PCR court does not hold an evidentiary hearing, our standard of review is de novo as to both the court's factual inferences drawn from the record and the court's legal conclusions. State v. Aburoumi, 464 N.J. Super. 326, 338- 39 (App. Div. 2020). A petitioner is not automatically entitled to an evidentiary hearing by simply raising a PCR claim. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). When petitioning for PCR, the defendant must establish, "by a preponderance of the credible evidence," entitlement to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)). An evidentiary hearing should only be conducted if "there are material issues of disputed fact" regarding entitlement to PCR "that cannot be resolved by reference to the existing record." State v. Porter, 216 N.J. 343, 354 (2013) (quoting R. 3:22-10(b)). "A prima facie case is established when a defendant demonstrates 'a reasonable likelihood that his or her claim, viewing A-1437-24 8 the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits.'" Id. at 355 (quoting R. 3:22-10(b)). It is clear, to establish a prima facie IAC claim warranting an evidentiary hearing, "a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel," but must instead "allege facts sufficient to demonstrate counsel's alleged substandard performance." Porter, 216 N.J. at 355 (quoting Cummings, 321 N.J. Super. at 170). Pursuant to Rule 3:22-12(a)(1), a first petition for PCR must be filed no "more than [five] years after the date of entry pursuant to Rule 3:21-5 of the [JOC] that is being challenged unless" defendant establishes the delay in filing "was due to defendant's excusable neglect and . . . there is a reasonable probability that if the defendant's factual assertions were found to be true[,] enforcement of the time-bar would result in a fundamental injustice." R. 3:22- 12(a)(1)(A). The five-year time limitation runs from the date of the conviction or sentencing, "whichever the defendant is challenging." State v. Milne, 178 N.J. 486, 491 (2004) (quoting State v. Goodwin, 173 N.J. 583, 594 (2002)). Although the time limitations are not absolute and may be excused to prevent a fundamental injustice, the rules must be viewed in light of their dual key purposes: "to ensure that the passage of time does not prejudice the State's A-1437-24 9 retrial of a defendant" and "to respect the need for achieving finality." State v. DiFrisco, 187 N.J. 156, 166-67 (2006) (quoting State v. Mitchell, 126 N.J. 565, 575-76 (1992)). Accordingly, "a court should relax Rule 3:22-12's bar only under exceptional circumstances. The court should consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an injustice sufficient to relax the time limits." Mitchell, 126 N.J. at 580 (internal quotation marks omitted). "[W]hen a first PCR petition" is "filed more than five years after the date of entry of the [JOC]," the PCR court "has an independent, non-delegable duty to question the timeliness of the petition, and to require that defendant submit competent evidence to satisfy the standards for relaxing the [Rule's] time restriction[]." State v. Brown, 455 N.J. Super. 460, 470 (App. Div. 2018); see also R. 1:3-4(c) (prohibiting the court and the parties from enlarging the time to file a petition for PCR under Rule 3:22-12). To succeed on an IAC claim, a defendant must satisfy both prongs of the Strickland test. "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. The PCR court "must indulge a A-1437-24 10 strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," and "the defendant must overcome the presumption that, under the circumstances, the challenged action [by counsel] 'might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Under the second prong of the Strickland test, the defendant must show "the deficient performance prejudiced the defense." Id. at 687. This means "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. It is insufficient for the defendant to show the errors "had some conceivable effect on the outcome of the proceeding." Id. at 693. Moreover, courts must "make 'every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.'" State v. Hernandez-Peralta, 261 N.J. 231, 251 (2025) (quoting State v. Pierre, 223 N.J. 560, 579 (2015)). III. Defendant contends the PCR court erred in finding his petition was time- barred because he established excusable neglect and that the late filing should be permitted in the interest of justice. He points to the "confusing advice from A-1437-24 11 his appellate [counsel] regarding the proper timing" for filing a PCR petition and argues "it was a fundamental injustice to . . . bar" his petition despite the proofs showing his "lack of criminal intent due to mental illness that was not presented by trial counsel." Further, he contends the PCR court's denial of his PCR claim regarding trial counsel's failure to properly raise an insanity or diminished capacity petition on the merits was erroneous. After a review of the record, we agree with the PCR court that defendant's petition is time-barred under Rule 3:22-12(a)(1) and the court correctly determined on the merits that he failed to demonstrate a prima facie showing of IAC. As noted by the court, defendant was originally sentenced on May 26, 2017, and resentenced on July 14, 2017, resulting in an amended JOC being entered on August 21, 2017. The court advised defendant during both sentencings of the five-year period to file a PCR petition. Defendant filed his PCR petition on February 27, 2023, more than five years after the amended JOC was entered. The court correctly analyzed the relevant dates in concluding defendant's petition to challenge his conviction or July 2017 resentence was time-barred. We are also unpersuaded by defendant's assertion that he demonstrated excusable neglect and that enforcement of the time-bar would result in a A-1437-24 12 fundamental injustice based on his alleged evidence. Defendant maintains he was given conflicting advice by appellate counsel regarding the time for filing a PCR petition, leading him to believe he had five years to file a petition after exhausting his appellate remedies. The trial court properly deemed this argument unavailing. Defendant relies on appellate counsel's January 18, 2023 letter advising him that the Supreme Court had denied certification and stating, "PCR petitions generally must be filed within five years of sentencing" and "if you want to file for PCR, it is best to do so in the next few months or sooner so that you do not run out of time to raise any arguments in federal court." (Emphasis added). A fair reading of the letter shows it was not misleading. While in January 2023, defendant was out of time to file a PCR petition regarding his conviction and July 2017 resentence, he had five years to file a petition from the time he was resentenced pursuant to our remand to address IAC regarding mitigating factor eleven. Stated another way, while generally a defendant must file a PCR petition within five years of sentencing, there are exceptions, which appellate counsel was referencing relevant to our remand. The court committed no error in determining defendant failed to demonstrate that a fundamental injustice would occur. A-1437-24 13 Although the petition was time-barred, the court nevertheless thoroughly evaluated defendant's IAC claims related to trial counsel's alleged failure to investigate and raise an insanity or diminished capacity defense. Defendant maintains trial counsel was aware of defendant's "psychiatric problems" and mental health issues based on medical records and witness accounts but failed to introduce the related evidence at trial. He specifically argues trial counsel was ineffective for failing to admit before the court his history of bipolar disorder, depression, and suicide attempts, in combination with his drug use on the day of the incident, to establish the mental health defenses. As noted by the court, defendant asserted unsupported claims that witnesses supported that he was suffering impairments due to his mental illness on the day of the incident, referencing accounts from his mother, girlfriend, and former roommate. The witnesses' statements did not indicate defendant was suffering a diminished capacity or lacked his faculties at the time he committed the offenses. To the contrary, defendant's mother reported he was stressed, his girlfriend and former roommate reported he "flipped out" for no apparent reason and reiterated he was stressed, and his roommate confirmed defendant was utilizing phencyclidine ("PCP") at the time of the offense. A-1437-24 14 Further, while defendant's medical records memorialized a history of depression and bipolar disorder, they do not indicate he was decompensating, incapacitated, or experiencing a loss of faculties at or near the time of the incident. Defendant's prior medical records supported his long-term use of PCP, marijuana, and alcohol. Relevantly, defendant's medical evaluation report from November 29, 2015, indicated that: he admitted using PCP and marijuana that day and he tested positive for using the drug; his "PSYCH/SOCIAL" assessment was "intoxication," "[o]verdose . . . of PCP, marijuana, [and] alcohol"; and after his evaluation he was "cleared for incarceration." Regarding the defense of diminished capacity, N.J.S.A. 2C:4-2 provides that "[e]vidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have a state of mind which is an element of the offense." N.J.S.A. 2C:4-1 addresses an insanity defense and states that a defendant "is not criminally responsible for conduct[,] if at the time of such conduct[,] he [or she] was laboring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act he [or she] was doing," or that if he or she did know, he or she "did not know what he was doing was wrong." A-1437-24 15 We reject defendant's assertion that the "potential evidence could have supported either mental health defense." He established no prima facie evidence that his mental health history equated to having a diminished capacity or defect of reason preventing him from understanding his actions were wrong. As noted by the court, defendant presented no material facts, including an expert opinion or prior medical records, showing a mental illness was affecting his faculties at the time he committed the offenses. Conversely, trial counsel's intoxication defense was based on defendant's admission to using drugs and alcohol, his roommate's confirmation of defendant's drug use immediately before the incident, and the hospital records from November 29, 2015, that supported intoxication. For these reasons, we discern no error in the court's denial of defendant's PCR petition, finding he failed under Strickland to make a prima facie showing "that (1) counsel's performance was deficient and (2) the deficient performance prejudiced the defense." To the extent not addressed, defendant's remaining contentions lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Affirmed. A-1437-24 16