State of New Jersey v. Dorian J. Roberts

• Court: New Jersey Superior Court Appellate Division
• Decided: October 22, 2025
• Docket: A-2908-23
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2908-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DORIAN J. ROBERTS, a/k/a DORIAN ROBERTS, and DORIAN JAY ROBERTS,

Defendant-Appellant. ________________________

Submitted September 30, 2025 – Decided October 22, 2025

Before Judges Gooden Brown and Rose.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-12-4070.

Jennifer N. Sellitti, Public Defender, attorney for appellant (Susan Brody, Designated Counsel, on the brief).

Grace C. MacAulay, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Dorian J. Roberts appeals from a January 31, 2024 Law

Division order denying his petition for post-conviction relief (PCR) without an

evidentiary hearing. Because the petition was untimely and defendant failed to

demonstrate exceptional circumstances warranting relaxation of the five -year

time bar under Rule 3:22-12(a)(1), we affirm.

I.

The facts underlying defendant's convictions are summarized in our prior

unpublished opinion affirming the denial of his motion to correct an illegal

sentence. State v. Roberts (Roberts II), No. A-0270-19 (App. Div. Mar. 1, 2022)

(slip op. at 2). Pertinent to this appeal, in September 2003, defendant pled guilty

to: first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), as amended

from first-degree murder, for the shooting death of Stephen Holland in the home

Holland shared with his girlfriend, Beverly Harper; and second-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(1), as amended from second-degree

attempted murder, for "chas[ing] or push[ing] . . . Harper into the bathroom" and

"fir[ing] a round, . . . graz[ing] the temple of her head."

Defendant was nineteen years old when he committed the offenses.

Pursuant to the terms of the "open" plea agreement, "[b]oth parties reserve[d

the] right to ask for any lawful sentence."

A-2908-23 2 On November 21, 2003, defendant was sentenced to a twenty-five-year

prison term on the manslaughter conviction and a consecutive ten-year prison

term on the aggravated assault conviction. Both sentences were imposed subject

to the No Early Release Act, N.J.S.A. 2C:43-7.2. The sentencing judge, who

also was the plea judge, found aggravating factors one ("nature and

circumstances of the offense"), two ("gravity and seriousness of harm inflicted

on the victim"), three (risk of re-offense), and nine (general and specific

deterrence), N.J.S.A. 2C:44-1(a)(1), (2), (3), and (9), clearly outweighed

mitigating factor twelve (cooperation with law enforcement), N.J.S.A. 2C:44-

1(b)(12).1

In his fourteen-page written statement of reasons accompanying the

judgment of conviction, the judge closely tracked his oral pronouncement of

sentence. Relevant to the issues raised on this appeal, the judge cited our

Supreme Court's decision in State v. Sainz, 107 N.J. 283, 293 (1987), and noted

the sentencing court "should consider 'the whole person'[] and all the

circumstances surrounding the commission of the crime." Referencing Rule

3:21-2, the court considered the information contained in the presentence report

1 In our prior opinion, we mistakenly stated the sentencing judge found no mitigating factors. Roberts II, slip op at 3. The error neither impacted the issues raised in that nor this appeal. A-2908-23 3 (PSR), including Harper's statements, and further noted a "defendant's factual

version need not be the sole source of information for the [c]ourt's sentencing

decision." See Sainz, 107 N.J. at 293.

In applying aggravating factor one, the sentencing judge considered the

totality of defendant's conduct:

In this case, defendant's role was paramount. He alone shot the victims, and later repeatedly stabbed one of them. The circumstances show that the senseless death of . . . Holland and the brutal assault of . . . Harper essentially were the product of defendant's cold- blooded nature. [Harper stated] defendant entered their home, chased . . . Holland through the kitchen, the dining room, and into the living room, as . . . Holland attempted to flee. . . . Holland was gunned down by . . . defendant, just short of the front door. Not satisfied with merely wounding . . . Holland, defendant callously fired one more shot into . . . Holland as he crawled to the front door, killing him. This was a brutal and senseless killing. . . . Holland was gunned down and killed because he still owed defendant $5. Then, after brutally and senselessly killing . . . Holland, defendant chased . . . Harper into her bathroom and shot her in the head. Fortunately, the gunshot wound . . . Harper sustained was not fatal. However, . . . Harper did lose consciousness because of that wound. When she finally regained consciousness, defendant attacked her again, stabbing her nine times with a screwdriver. She was told not to leave and was left for dead. Defendant shot . . . Harper in the head after she crawled out from under her own kitchen table and tried to barricade herself in the bathroom. He kicked the bathroom door in and fired his last shot at her, grazing her head and causing her to lose consciousness. When she awoke, she tried to

A-2908-23 4 escape to the safety of her bedroom, but defendant attacked her a second time. He beat and stabbed her and left her for dead in her bedroom. On his way out of her home, he threatened her and barricaded her bedroom door to prevent her from seeking assistance. As a final act, it appears that he cut the phone cord on his way out.

In his assessment of aggravating factor two, the judge cited the harm

defendant inflicted on Harper. The judge reasoned:

Harper was chased into her bathroom and shot in the head. Because she survived that gunshot wound, defendant brutally attacked her a second time, stabbing her nine times with a screwdriver and threatening to kill her if she left her home or reported the crimes. The gunshot would [sic] clearly rendered . . . Harper incapable of exercising normal physical or mental power of resistance. Moreover, the injuries defendant inflicted on . . . Harper, coupled with her witnessing defendant kill . . . [Holland indicate] defendant reasonably should have known that . . . Harper was also particularly vulnerable and incapable of resistance. Defendant also used excessive force and inflicted gratuitous bodily injuries upon . . . Holland. He had already shot . . . Holland, and after doing so, he callously fired one more shot into . . . Holland, while the victim was crawling to the front door.

In his ensuing direct appeal, defendant only challenged his sentence. We

heard his appeal on a sentencing calendar, see R. 2:9-11, and affirmed. State v.

Roberts (Roberts I), No. A-3920-03 (App. Div. Sept. 23, 2004).

A-2908-23 5 More than two decades later, in April 2018, defendant filed a motion to

correct an illegal sentence under Rule 3:21-10(b), and the matter was heard by

another judge. Roberts II, slip op. at 4. In Roberts II, we summarized the issues

raised in defendant's motion:

Defense counsel urged the judge to reconsider defendant's sentences, noting they were "at the top of the . . . range" and should be reexamined because when defendant was sentenced in 2003, the judge relied on a paradigm rooted in presumptive prison terms, a practice that was eliminated under State v. Natale, 184 N.J. 458, 487 (2005). Defense counsel stated that based on the Court's holding in Natale, defendant's sentences were "per se, illegal."

[Ibid.]

The motion judge disagreed and denied relief. Ibid.

In his appeal that followed, defendant abandoned his illegal sentence

argument and belatedly urged us to remand for retroactive application of the

then recent mitigating factor fourteen (defendant was less than twenty-six years

old when the offense was committed), N.J.S.A. 2C:44-1(b)(14). We rejected

defendant's reprised argument and affirmed. Roberts II, slip op. at 11.

Shortly thereafter, in July 2021, defendant filed the present pro se PCR

petition and brief. Defendant argued the sentencing court: failed to advise him

of the deadline for filing a PCR petition; erroneously imposed consecutive

A-2908-23 6 sentences; and misapplied aggravating factor two by considering defendant

stabbed Harper when that conduct was not proven beyond a reasonable doubt.

Defendant also reprised his argument that the matter must be remanded for

resentencing for application of mitigating factor fourteen. Defendant's assigned

counsel filed an amended petition and brief asserting defendant's PCR petition

was not time- or procedurally barred and the sentencing court improperly

considered evidence that was not "adjudicated through due process" contrary to

the Court's decision in State v. Melvin, 248 N.J. 321 (2021).

During oral argument on his petition, defendant personally addressed the

PCR judge. Relevant to his contention that his petition was timely, defendant

explained, in pertinent part, but verbatim:

I looked at so many sentences reports where as though when the judge says you have forty-five days to appeal this decision, then you have up to five years to file your first PCR. I looked at so many of my -- the people that I was locked -- it's in there for everybody else. In mines, it's not there. For the time-bar, I think that I've been doing everything I can do, that I was told to do. I'm pretty sure in this time if it was -- if I would have known that a PCR -- that the judge told me to do, I'd a did it. . . .

If I had that option at that time, I definitely would have did it. I wouldn't have wasted no five-year time not doing one step. That was an important step. And to say that it can be time-barred just because somebody didn't tell me, I would have did it. . . . I did everything,

A-2908-23 7 illegal sentence motions, a motion direct. Everything. I did everything forty-five days. I did everything in the right time. This is one thing that I wasn't even told . . . .

Immediately thereafter, the same judge, who denied defendant's motion

for an illegal sentence, denied PCR. Initially, the judge stated he was unsure

whether, at the time of defendant's sentencing, "the case law required" the court

to advise of the time limits for filing a PCR petition. The PCR judge

acknowledged the sentencing judge did not do so here, but found that issue was

"not before [him]." The PCR judge concluded defendant failed to file a timely

petition. Turning to the merits of his claim, the judge found the Court's decision

in Melvin inapplicable in the context of a PCR claim.

Defendant now raises the following points for our consideration:

POINT I

THE PCR JUDGE ERRED IN IMPOSING A PROCEDURAL BAR.

POINT II

THE PCR JUDGE ERRED IN REJECTING THE ARGUMENT THAT [DEFENDANT]'S SENTENCE MUST BE VACATED BECAUSE THE SENTENCING JUDGE IMPROPERLY RELIED ON EVIDENCE OF AN OFFENSE TO WHICH [DEFENDANT] HAD NOT ADMITTED.

Unpersuaded, we affirm.

A-2908-23 8 II.

"We review a judge's decision to deny a PCR petition without a hearing

for abuse of discretion." State v. Vanness, 474 N.J. Super. 609, 623 (App. Div.

2023). However, when a PCR judge does not hold an evidentiary hearing, we

review de novo the factual inferences drawn by the judge from the record and

the judge's legal conclusions. See State v. Aburoumi, 464 N.J. Super. 326, 338

(App. Div. 2020); see also State v. Nash, 212 N.J. 518, 540-41 (2013).

Rule 3:22-12(a)(1) provides a PCR petition shall not be filed "more than

[five] years after the date of entry . . . of the judgment of conviction that is being

challenged" unless the defendant "alleges facts showing that the delay . . . was

due to [the] defendant's excusable neglect and that 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 ." In State

v. Brown, 455 N.J. Super. 460, 470 (App. Div. 2018), we recognized the PCR

court's "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 restrictions pursuant to Rule 3:22-12."

"In the context of [PCR], a court should only relax the bar of Rule 3:22-

12 under exceptional circumstances." State v. Afanador, 151 N.J. 41, 52,

A-2908-23 9 (1997). Those circumstances include: "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." Ibid.

(quoting State v. Mitchell, 126 N.J. 565, 580 (1992)). "Absent sufficient

competent evidence to satisfy this standard, the court does not have the authority

to review the merits of the claim." Brown, 455 N.J. Super. at 470.

A substantial delay in filing a PCR petition increases the already

substantial burden on the defendant to demonstrate excusable neglect and a

fundamental injustice will result if the petition is not heard. See Afanador, 151

N.J. at 52 (holding "the burden to justify filing a petition after the five-year

period will increase with the extent of the delay"). A defendant's lack of

sophistication in the law does not establish excusable neglect. State v. Murray,

162 N.J. 240, 246 (2000).

In point I, defendant acknowledges ignorance of the law does not

constitute excusable neglect, but nonetheless claims he satisfied Rule 3:22-12's

standard because he was not advised of the five-year time-bar at sentencing.

Defendant maintains he did not "s[i]t on his rights" after his conviction and "did

everything he knew of . . . to challenge the sentence imposed, all within a timely

manner."

A-2908-23 10 Although it is undisputed defendant was not advised of his PCR rights at

sentencing, it is not clear from the record when he realized the omission.

Regardless, however, the parties have not cited, and our independent research

has not revealed, any authority concluding a petitioner satisfied excusable

neglect where he or she was not advised of the right to PCR relief at sentencing.

Ignorance of the legal principles does not constitute excusable neglect. See

Murray, 162 N.J. at 246; see also State v. Dugan, 289 N.J. Super. 15, 22 (App.

Div. 1996) (holding the defendant's misunderstanding "that Rule 3:22-12 gave

him five years after entry of the amended judgments of conviction to file his

petition" did not constitute excusable neglect).

Moreover, when defendant was sentenced in November 2003, the trial

court was not required to advise of the right to PCR. See Pressler & Verniero,

Current N.J. Court Rules, History and Analysis of Rule Amendments to R. 3:21-

4(i), note 9, www.gannlaw.com (2026).2 We therefore conclude defendant's

2 As the comment to paragraph (i) explains:

This paragraph of the rule was amended effective September 2009 as part of the overall revisions of the post-conviction rules then adopted. The amendment, which included amendment of the caption, requires the court to advise the defendant not only of the right to appeal but also of the time limits imposed by R[ule]

A-2908-23 11 ignorance of the time limitation for filing a PCR petition does not constitute an

exceptional circumstance warranting relaxation of the time requirements under

Rule 3:22-12(a)(1).

In his first point, defendant also argues the "importance" of his claim

constitutes excusable neglect because the sentencing judge improperly

considered defendant stabbed Harper – conduct not admitted during his plea

allocution – in assessing aggravating factors one and two. By extension, in his

second point, defendant argues "[t]his issue is cognizable on PCR because it is

based upon substantial denial of [defendant]'s constitutional rights, R. 3:22(a),"

and was not authorized by law, R. 3:22(c). To support his argument, defendant

asserts Melvin should be applied retroactively to his 2003 sentencing. We are

not convinced.

"[A] truly 'illegal' sentence can be corrected 'at any time.'" State v.

Acevedo, 205 N.J. 40, 47 n.4 (2011) (quoting R. 3:21-10(b)(5)). Our Supreme

3:22-12 for filing a petition for post-conviction relief. The significance of that advice results from the 2009 amendment of R[ule] 1:3-4(c) adding the time limits of R[ule] 3:22-12 as non-enlargeable. It remains to case law to determine if failure of the required advice will toll the running of those time limits.

[(Emphasis added).] A-2908-23 12 Court has recognized "two categories of illegal sentences: those that exceed the

penalties authorized for a particular offense, and those that are not authorized

by law." State v. Hyland, 238 N.J. 135, 145 (2019). Both categories are

narrowly defined. Ibid. The second category "includes a sentence 'imposed

without regard to some constitutional safeguard.'" State v. Zuber, 227 N.J. 422,

437 (2017) (quoting State v. Tavares, 286 N.J. Super. 610, 618 (App. Div.

1996)). "Whether [a] defendant's sentence is unconstitutional is . . . an issue of

law subject to de novo review." State v. Drake, 444 N.J. Super. 265, 271 (App.

Div. 2016); see also State v. Pomianek, 221 N.J. 66, 80 (2015).

Notwithstanding defendant's contentions, the present matter is not

analogous to the circumstances at issue in Melvin. In that case, the trial court

made factual findings at sentencing that contradicted the jury's verdict. 248 N.J.

at 326. In particular, the defendant was acquitted of first-degree murder, but the

court determined the evidence adduced at trial established he was the shooter.

Ibid. We affirmed and our Supreme Court reversed, id. at 353, finding the

improper consideration of acquitted conduct violated due process and

fundamental fairness, id. at 347-49. The Court elaborated:

[F]indings of juries cannot be nullified through lower- standard fact findings at sentencing. The trial court, after presiding over a trial and hearing all the evidence, may well have a different view of the case than the jury.

A-2908-23 13 But once the jury has spoken through its verdict of acquittal, that verdict is final and unassailable.

[Id. at 352.]

Conversely, here, the sentencing judge did not consider facts related to

acquitted conduct to enhance defendant's sentence. Instead, in assessing

aggravating factors one and two, the judge considered defendant's factual basis

and the information contained in his PSR, after plea counsel confirmed the

defense "ha[d] no additions or corrections to make to it." In doing so, the judge

properly relied on Rule 3:21-2 and the Court's decision in Sainz.

Moreover, the Melvin Court was silent as to the retroactive application of

its new rule. In State v. Morente-Dubon, we held the new rule of law announced

by the Melvin Court "should have at least pipeline retroactivity, 'rendering it

applicable in all future cases, the case in which the rule [was] announced, and

any cases still on direct appeal.'" 474 N.J. Super. 197, 213 (App. Div. 2022)

(alteration in original) (quoting State v. Cummings, 184 N.J. 84, 98 (2005));

see also R. 3:22-4(b)(2)(A) (a PCR petition "rel[ying] on a new rule of

constitutional law" must be "made retroactive to a defendant's petition by the

[Supreme Courts of the United States or New Jersey]").

Having considered defendant's contentions in view of the controlling legal

principles, we discern no reason to disturb the PCR judge's conclusion that

A-2908-23 14 defendant's July 2021 PCR petition – filed more than a decade beyond the five-

year-time bar, Rule 3:22-12, – was time-barred. We conclude, as did the PCR

judge, defendant failed to present sufficient competent evidence to establish

excusable neglect.

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-2908-23 15