We are New Jersey PCR Lawyers.PCR” stands for Post Conviction Relief. Post Conviction Relief is one of several mechanisms by which a conviction can be set aside. Two other mechanisms by which a conviction can be removed are appeals, and motions to vacate a plea.

PCR, appeals, and motions to vacate a plea all have something in common: When successful, a conviction is nullified. Upon completion of the process, depending upon many factors, either the case goes away completely, or the original charges are reinstated. However, differences between the three procedures exist. Thus, when considering pursuing an application for PCR, it is necessary at the beginning to determine whether it is the procedure best applies to the situation at hand.

Differences between PCR, Appeal, and Motion To Vacate Sentence
Procedure Deadline To File When Applicable
PCR Generally, five years from the date the Judgment of Conviction is entered. As this page explains, the five-year deadline can sometimes be overcome. PCR enables Petitioners to assert issues that were not raised in court when the matter was originally resolved and, thus, are not part of the record made at that time. For that reason, PCR deals with issues that could not have been raised on direct appeal. Often the basis for PCR applications is ineffective assistance of counsel.
Appeal Forty-five days from the date the Judgment of Conviction is entered. Appeals challenge decisions of issues resolved adversely to the party taking the appeal.
Motion To Vacate
Guilty Plea
Rules of Court do not impose any deadline. However, the standards to grant motions to vacate guilty plea are much easier to meet when made before sentencing. Numerous possible grounds, including plea was entered involuntarily, or defendant failed to provide an adequate factual basis, or did not understand penal consequences, or plea was to a defective indictment.

In New Jersey, PCR applications can be filed after a guilty plea, and they can also be filed after a trial. PCR applications can be filed while the defendant is serving a jail or prison sentence. They can also be filed after a sentence has been completed. State of New Jersey v. Roper, 362 N.J. Super. 248 (App. Div., 2003) established that principle. Willie Roper had ten indictable convictions before his conviction on the matter for which he sought PCR. The trial judge ruled that a PCR hearing would be a waste of the court's time. The Appellate Division disagreed. That court held that the conviction for which PCR was sought could affect sentences on future convictions. As such, the trial court was obliged to consider the PCR application.

Probably the most asserted basis for PCR applications is ineffective assistance of counsel. Ineffective assistance of counsel forms a basis for having a conviction set aside under both New Jersey and federal constitutional law. For an ineffective assistance of counsel argument to succeed, the PCR applicant must establish two things. The first is that counsel's performance was substandard; second is that counsel's inadequate performance prejudiced the defendant. Counsel's substandard performance need not have been at trial itself; it could have been at pretrial preparation. For example, counsel may have failed to conduct an adequate investigation. Or counsel may have failed to challenge an illegal search and seizure of evidence.

Illustrating these principles is State of New Jersey v. Afanador, 151 N.J. 41 (1997). Moises Afanador filed a Petition for PCR after receiving two consecutive life terms in prison for drug trafficking, specifically being a “drug kingpin”. He argued that not only were his sentences excessive, but that the jury was improperly instructed on the definition of “kingpin”.

Afanador spent 4 years and 7 months exhausting his direct appeals. His efforts were largely unsuccessful. (A resentencing court generously gave him one term of imprisonment for life, rather than his original two.) On his final direct appeal to the New Jersey Supreme Court, the court declined to consider his arguments about the jury instruction issue. This was because another case dealing with the exact same issue was already pending there. That case was State of New Jersey v. Alexander, 136 N.J. 563 (1994). In Alexander, the Supreme Court of New Jersey found that the jury instructions regarding the “kingpin” statute, were, in fact, improper. Six months after the Alexander ruling, Afanador submitted his Petition for Post-Conviction Relief.

The trial court hearing Afanador's Petition for PCR stated that Afanador was barred from having his Petition considered. Since Afanador's lawyer did not raise the issues he claims give him a basis for PCR at any time prior to his actual PCR hearing, his Petition was invalid said the court. Afanador appealed. The appeals court reached the same conclusion as the trial court. The appeals court further noted that someone cannot support a PCR claim with an issue that could have been or was raised on appeal, and that this is what Afanador was trying to do. And, oh yeah, the appeals court found that Afanador's Petition exceeded the five-year time limit.

Afanador convinced the Supreme Court of New Jersey to consider his situation. The Supreme Court addressed the main reasons lower courts had found Afanador's PCR Petition invalid. The first reason, that Afanador could have raised his issues on appeal, was unfair because Afanador was never given the opportunity to make that argument. The court declined to consider the jury instruction issue during his direct appeals. This meant that Afanador never got the chance to explain his improper jury instruction claim, so that reason did not invalidate his PCR Petition.

NJ Post Conviction Relief lawyerThe second reason was the time limit. The court emphasized that the five-year time period should be relaxed only in exceptional circumstances. How much time has passed since the five-year period has passed is also relevant. The five-year period begins either when the conviction is entered, or at the time of sentencing, depending on what the defendant is challenging. In Afanador's case, he was challenging his conviction, putting him outside the five-year window.

The 4 years and 7 months after his conviction which Afandor spent exhausting his direct appeal gave him no opportunity to file a PCR Petition in that period. Even after that time, he had to wait for the courts to decide Alexander. Thus, although not within the five years after his conviction, the Supreme Court of New Jersey found that Afanador's circumstances did constitute excusable neglect. He did everything he could to seek relief, and the timing of Alexander was totally out of his hands. The Court thus held that his PCR Petition could be considered despite its not having been filed within the five-year period.

Allan Marain is an experienced New Jersey PCR lawyer. He has been representing persons charged with crimes for more years than most people reading this page have been alive. He knows his way around. If you believe PCR might possibly help you, call him. He would welcome the opportunity to review your situation.

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