NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3814-18 STATE OF NEW JERSEY, Plaintiff-Respondent, v. PERSIO LORA, a/k/a JOHN JOHNSON, and JOHNNY LORA, Defendant-Appellant. ________________________ Submitted January 12, 2021 – Decided March 26, 2021 Before Judges Fisher and Moynihan. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 00-06-1337. Joseph E. Krakora, Public Defender, attorney for appellant (Phuong V. Dao, Designated Counsel, on the brief). Mark Musella, Bergen County Prosecutor, attorney for respondent (Jaimee M. Chasmer, Assistant Prosecutor, of counsel and on the brief). PER CURIAM On February 7, 2001, a jury found defendant Persio Lora guilty of two counts of third-degree burglary, N.J.S.A. 2C:18-2, and one count of third-degree theft, N.J.S.A. 2C:20-3, in connection with a break-in at a garage on September 7, 1999, the details of which are capsuled in our decision affirming his convictions on direct appeal. State v. Lora, No. A-5978-10 (App. Div. Oct. 9, 2013). He fled prior to his original 2001 sentencing date, and was not sentenced until March 4, 2011. 1 He appeals the denial of his postconviction relief (PCR) petition, filed on March 12, 2018, arguing: POINT I IN THE INTEREST OF JUSTICE, [DEFENDANT'S] PCR CLAIM IS NOT TIME BARRED. POINT II DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL. (a) Trial counsel was ineffective by not calling Defendant as a witness at trial. (b) Trial counsel failed to object to [Albert] Sealy's and [O]fficer Torell's testimonies. 1 The original judgment of conviction is dated March 11, 2011; an amended judgment reflecting additional jail credits is dated January 20, 2012. A-3814-18 2 POINT III THE PCR [JUDGE'S] CUMULATIVE ERRORS DENIED DEFENDANT THE RELIEF TO WHICH HE WAS ENTITLED. Reviewing the factual inferences drawn by the PCR judge, Judge Robert M. Vinci, and his legal conclusions de novo because he did not conduct an evidentiary hearing, State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016), and considering "the facts in the light most favorable to [the] defendant," State v. Preciose, 129 N.J. 451, 462-63 (1992), we affirm substantially for the reasons set forth in Judge Vinci's oral opinion, chiefly because defendant's petition was time barred. It was not filed within five years of "the date of entry[,] pursuant to Rule 3:21-5[,] of the judgment of conviction that is being challenged ." R. 3:22-12(a)(1). A tardy petition may be considered if the petition shows excusable neglect for the late filing and that a fundamental injustice will result if defendant's claims are not considered on their merits. State v. Brewster, 429 N.J. Super. 387, 400 (App. Div. 2013); R. 3:22-12(a)(1)(A). "Absent compelling, extenuating circumstances, the burden to justify filing a petition after the five- year period …
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