STATE OF NEW JERSEY VS. J.W.A. (10-06-1180 AND 11-07-1347, OCEAN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )


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  •                                       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    NOT FOR PUBLICATION WITHOUT THE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-0312-19
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    J.W.A.,1
    Defendant-Appellant.
    _______________________
    Submitted January 27, 2021 – Decided April 23, 2021
    Before Judges Accurso and Enright.
    On appeal from the Superior Court of New Jersey, Law
    Division, Ocean County, Indictment No. 10-06-1180
    and Accusation No. 11-07-1347.
    Joseph E. Krakora, Public Defender, attorney for
    appellant (Monique Moyse, Designated Counsel, on the
    brief).
    Bradley D. Billhimer, Ocean County Prosecutor,
    attorney for respondent (Samuel Marzarella, Chief
    1
    We use initials to protect the privacy of the minor victims in this matter. R.
    1:38-3(c)(12).
    Appellate Attorney, of counsel; Dina R. Khajezadeh,
    Assistant Prosecutor, on the brief).
    PER CURIAM
    Defendant J.W.A. appeals from a July 11, 2019 order denying his post-
    conviction relief (PCR) petition without an evidentiary hearing. We affirm,
    substantially for the reasons outlined in Judge Guy P. Ryan's thoughtful and
    comprehensive written opinion.
    On July 24, 2010, defendant was indicted and charged with various sexual
    offenses. On July 19, 2011, a few weeks before his trial was due to commence,
    defendant successfully moved to be removed from the trial list under a plea
    cutoff exception. Consistent with his plea agreement, defendant pled guilty to
    two counts of first-degree aggravated sexual assault against a victim less than
    thirteen years old, N.J.S.A. 2C:14-2A(1), one count of first-degree aggravated
    sexual assault, N.J.S.A. 2C:14-2A, one count of second-degree sexual assault,
    N.J.S.A. 2C:14-2B, and one count of fourth-degree possession or viewing items
    depicting the sexual exploitation or abuse of a child, N.J.S.A. 2C:24-4B(5)(B).
    In exchange for defendant's guilty pleas, the State agreed to recommend
    dismissal of thirteen counts of the indictment, including multiple counts of first
    degree aggravated sexual assault. According to defendant's plea agreement, the
    A-0312-19
    2
    State also recommended that defendant serve an aggregate sentence of thirty
    years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
    During his plea colloquy, defendant admitted he committed various sexual
    acts against his daughter, niece and nephews, all of whom were under the age of
    thirteen at the time of his offenses. These acts are graphically detailed in Judge
    Ryan's opinion and need not be repeated here. Additionally, defendant admitted
    he possessed or viewed images or photos on his computer which depicted
    children engaging in prohibited sexual acts. On July 29, 2011, defendant entered
    into a separate plea agreement whereby he pled guilty under an accusation to
    one count of second-degree endangering the welfare of child, N.J.S.A. 2C:24-
    4(b)(4). The victim referenced in the accusation was not related to defendant.
    On February 3, 2012, the sentencing judge imposed a fifteen-year term for
    one count of first-degree aggravated sexual assault, subject to NERA, parole
    supervision for life, compliance with registration and reporting restrictions as
    prescribed by Megan's Law, N.J.S.A. 2C:7-1 to -11, and a prohibition from
    having contact with his victim, as prescribed by Nicole's Law, N.J.S.A. 2C:44 -
    8. The judge ordered this sentence to run concurrent with an eighteen -month
    sentence on the child pornography offense. Also, the judge imposed fifteen -
    year terms on the three remaining offenses under the indictment, to run
    A-0312-19
    3
    concurrent to each other, but consecutive to the initial sentences he imposed,
    resulting in an aggregate thirty-year prison term, consistent with his plea
    agreement. Additionally, on February 3, 2012, defendant was sentenced on the
    endangering offense under the accusation. The judge imposed a seven-year
    term, subject to NERA, to run concurrent to the sentences imposed under the
    indictment. Defendant did not appeal from his convictions or sentence.
    On January 25, 2018, defendant filed a deficient pro se PCR petition. He
    was ordered to clarify his petition. He initially failed to comply with this order,
    but after the trial court issued an order indicating it would dismiss his petition
    unless defendant amended it, defendant filed an amended petition on November
    7, 2018. Thereafter, he was assigned PCR counsel and submitted an untimely
    brief. The State moved to dismiss his petition as time barred.
    On July 2, 2019, Judge Ryan held a non-evidentiary PCR hearing.
    Defendant acknowledged his PCR petition was filed more than five years after
    the entry of his judgment of conviction, contrary to Rule 3:22-12(a)(1).
    Nonetheless, he argued the delay was attributable to excusable neglect,
    considering he suffered from documented heart issues in late May 2016. He
    also contended an injustice would result if Judge Ryan did not relax the time
    limits because he was incarcerated at the Adult Diagnostic and Treatment
    A-0312-19
    4
    Center, and any delay in his filing was not so extensive or prejudicial to the State
    as compared to other matters.       Moreover, he argued his trial counsel was
    ineffective for failing to argue in favor of mitigating factors or advise the
    sentencing judge that defendant's excessive use of alcohol impaired his
    judgment at the time of his offenses. Defendant claimed if trial counsel had
    been effective, defendant could have avoided the imposition of consecutive
    sentences. Further, defendant contended his sentence was excessive and that he
    was entitled to have it reduced because he was a "model prisoner."
    During argument, PCR counsel conceded, "[o]bviously, there was no
    [direct] appeal and there should've been. Clearly, it was a sentencing issue.
    However, I feel that the attorney in this case did not address that issue properly
    at the time of sentencing and therefore, the [c]ourt gets that opportunity now to
    address that issue[.]"
    On July 11, 2019, Judge Ryan dismissed defendant's PCR petition, finding
    he did "not have the authority to review the merits of an untimely claim." The
    judge found the PCR petition was filed one year later than allowed and that
    defendant's excusable neglect arguments were "baldly allege[d]" because "no
    evidence or supporting documents" supported his claims. Judge Ryan added:
    [t]he reasons offered by [defendant] for relaxing the
    time limitation do not satisfy the requirements of [Rule]
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    5
    3:22-12(a)(1)(A) . . . . [Defendant's] incarceration in
    Avenel is not an excuse for failing to file a petition for
    post-conviction relief within the time limits of the rule
    . . . . Further, the fact that his delay in filing is allegedly
    not as extensive when compared to other matters does
    not excuse his own failure to file his petition for post-
    conviction relief within the [five-]year window.
    Regarding defendant's argument that his health issues supported a finding
    of excusable neglect, Judge Ryan acknowledged defendant had a heart
    condition, but found "nothing in the documents submitted . . . shows why [he]
    failed to file his petition before the five-year window closed in January 2017,
    seven months from the May/June time frame purported to be the period in which
    [defendant] was recovering from his heart procedure." Although Judge Ryan
    determined defendant failed to establish a reason for relaxing the time bar, he
    nonetheless considered the merits of the PCR petition.
    Regarding defendant's ineffective assistance of counsel claim, Judge Ryan
    found defendant's proofs lacking. The judge explained:
    [defendant] offers nothing to substantiate his claim that
    additional mitigating factors should have been argued.
    [Defendant] acknowledges the court took note of
    mitigating factor number seven [N.J.S.A. 2C:44-
    1(b)(7)], but he seems to suggest others might have
    existed without providing any evidentiary support for
    the same . . . . Defense counsel, in fact, at the time of
    sentencing, proffered other facts to the sentencing
    judge (defendant's service as a firefighter and his
    remorse), even though these facts do not squarely
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    6
    satisfy any mitigating factors. [Defendant] makes a
    bald assertion regarding the effectiveness of his
    counsel's representation.
    Regarding defendant's contention he should be resentenced, Judge Ryan
    found defendant was not asserting his innocence nor seeking to vacate his plea
    but claiming his trial counsel was ineffective for failing to challenge his
    excessive sentence. On this point, Judge Ryan determined defendant offered
    "nothing to substantiate this claim." Further, the judge concluded defendant
    "ignore[d] the fact he signed not one, but two sets of plea forms on two different
    dates, which clearly set forth the State was seeking a net sentence of [thirty]
    years subject to NERA." Judge Ryan also recounted the sentencing judge's
    observations that defendant's offenses involved a number of victims over a long
    period of time and the victims were "not only abused but forced to abuse each
    other." Under these circumstances, Judge Ryan concluded the sentencing judge
    "had the authority to sentence [defendant] to consecutive sentences, especially
    because that [result] was contemplated by the [first] plea agreement." Lastly,
    Judge Ryan found any excessive sentence argument should have been raised by
    defendant on direct appeal, rather than on a PCR petition. Accordingly, Judge
    Ryan denied the PCR petition, determining none of defendant's claims had merit,
    A-0312-19
    7
    he had not established a prima facie case of ineffective assistance of counsel,
    and an evidentiary hearing was unwarranted.
    On appeal, defendant raises the following arguments:
    POINT ONE
    [DEFENDANT]   IS  ENTITLED    TO   AN
    EVIDENTIARY HEARING ON HIS CLAIM THAT
    HIS ATTORNEY RENDERED INEFFECTIVE
    ASSISTANCE OF COUNSEL FOR FAILING TO
    ARGUE ADEQUATELY FOR MITIGATING
    FACTORS AND CONCURRENT SENTENCES.
    POINT TWO
    THE PCR COURT ERRONEOUSLY RULED THAT
    [DEFEDANT'S] PETITION WAS TIME-BARRED
    BECAUSE ANY DELAY IN FILING THE PETITION
    WAS DUE TO 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.
    Where, as here, a PCR court does not hold an evidentiary hearing, we
    "conduct a de novo review of both the factual findings and legal conclusions of
    the PCR court." State v. Blake, 
    444 N.J. Super. 285
    , 294 (App. Div. 2016)
    (quoting State v. Harris, 
    181 N.J. 391
    , 421 (2004)). The record here establishes
    defendant's PCR petition was properly denied as time barred and lacked
    substantive merit.
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    8
    Rule 3:22-12 (a)(1) precludes PCR petitions filed more than five years
    after entry of a judgment of conviction unless the delay 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).
    A claim of excusable neglect requires "more than simply providing a
    plausible explanation for a failure to file a timely PCR petition."         State v.
    Norman, 
    405 N.J. Super. 149
    , 159 (App. Div. 2009). To avoid the time bar in
    Rule 3:22-12(a)(1), a defendant must show the failure to file a petition within
    the time required was due to "compelling, extenuating" or "exceptional
    circumstances." State v. Brewster, 
    429 N.J. Super. 387
    , 400 (App. Div. 2013)
    (quoting State v. Milne, 
    178 N.J. 486
    , 492 (2004)). In determining whether a
    defendant has made the required showing, the court must consider: (1) "the
    extent and cause of the delay"; (2) "the prejudice to the State"; and (3) "the
    importance of the petitioner's claim in determining whether there has been an
    'injustice' sufficient to relax the time limits." State v. Afanador, 
    151 N.J. 41
    , 52
    (1997) (quoting State v. Mitchell, 
    126 N.J. 565
    , 580 (1992)).
    Defendant's judgment of conviction was entered on February 3, 2012. He
    filed his petition approximately six years later, on January 25, 2018. Although
    A-0312-19
    9
    defendant argues, as he did before Judge Ryan, that his delay in filing was
    attributable to excusable neglect, we concur with the judge that defendant failed
    to establish why his health issues prevented him from timely filing his petition.
    Moreover, defendant's counsel conceded, "[c]andidly there's nothing in these
    records that's going to show a prevention . . . other than the natural convalescent
    period . . . after any kind of surgery, any kind of heart condition. So, there's
    nothing that I can show you that says after this particular event that he was
    prohibited from doing anything[.]"
    Defendant also is unable to show that enforcement of the time bar would
    result in a reasonable probability of fundamental injustice, as he has not
    demonstrated a prima facie case of ineffective assistance of plea counsel. To
    establish a claim of ineffective assistance of counsel, a defendant must satisfy a
    two-part test: (1) "counsel made errors so serious that counsel was not
    functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment,"
    and (2) "the deficient performance prejudiced the defense."           Strickland v.
    Washington, 
    466 U.S. 668
    , 687 (1984); accord State v. Fritz, 
    105 N.J. 42
    , 58-59
    (adopting the two-prong Strickland test in New Jersey).
    Additionally, "[t]o set aside a guilty plea based on ineffective assistance
    of counsel, a defendant must show . . . 'that there is a reasonable probability that,
    A-0312-19
    10
    but for counsel's errors, [the defendant] would not have pled guilty and would
    have insisted on going to trial.'" State v. Nunez-Valdez, 
    200 N.J. 129
    , 139
    (2009) (quoting State v. DiFrisco, 
    137 N.J. 434
    , 457 (1994) (alterations in
    original)). Stated differently, a defendant claiming ineffective assistance of plea
    counsel must also demonstrate that but for counsel's errors, "it would have been
    rational under the circumstances" to reject the plea bargain and proceed to trial.
    State v. Maldon, 
    422 N.J. Super. 475
    , 486 (App. Div. 2011) (quoting Padilla v.
    Kentucky, 
    559 U.S. 356
    , 372 (2010)).
    Contrary to defendant's assertions, the record establishes that none of the
    asserted grounds for ineffective assistance of plea counsel has merit. In taking
    defendant's plea, the trial court confirmed defendant: had reviewed the charges
    and the plea forms with counsel; understood the charges to which he was
    pleading guilty; was pleading guilty freely and voluntarily; and understood
    pursuant to his plea agreements that the State recommended he serve an
    aggregate thirty-year sentence, subject to NERA (instead of the seventy-one-
    and-a-half-year prison term for which he had exposure under the indictment
    alone). Moreover, as Judge Ryan noted, at sentencing, defendant's trial counsel
    presented relevant factors to mitigate defendant's sentence, including that
    defendant was undergoing treatment, had expressed remorse for his offenses,
    A-0312-19
    11
    suffered from alcohol-related issues for thirty years, and had "given a lot to his
    community as a fireman and as a volunteer." Further, as Judge Ryan noted,
    defendant "offer[ed] nothing to substantiate his claim that additional mitigating
    factors should have been argued." Under these circumstances, we perceive no
    basis to disturb Judge Ryan's finding that defendant failed to meet the Strickland
    prongs and did not establish that but for trial counsel's errors, defendant would
    not have pled guilty and would have insisted on going to trial.
    We also agree with Judge Ryan that defendant's excessive sentencing
    claim should have been raised on direct appeal rather than by an application for
    PCR relief. Pressler & Verniero, Current N.J. Court Rules, cmt. 3.3. on R. 2:10-
    3 (2021). See also State v. Pierce, 
    115 N.J. Super. 346
    , 347 (App. Div. 1971);
    State v. Clark, 
    65 N.J. 426
    , 437-38 (1974) ("The rule is . . . fairly established
    that mere excessiveness of sentence otherwise within authorized limits, as
    distinct from illegality by reason of being beyond or not in accordance with legal
    authorization, is not an appropriate ground of post-conviction relief and can only
    be raised on direct appeal from the conviction.").
    We also reject defendant's claim that the PCR court erred in not
    conducting an evidentiary hearing. A defendant is entitled to an evidentiary
    hearing on a PCR petition only when he establishes a prima facie case and "there
    A-0312-19
    12
    are material issues of disputed fact 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)). The denial of an evidentiary hearing for a PCR petition is reviewed for
    an abuse of discretion.    Brewster, 429 N.J. Super. at 401 (citing State v.
    Marshall, 
    148 N.J. 89
    , 157-58 (1997)). As previously discussed, the existing
    record provides an adequate basis for Judge Ryan's finding that defendant did
    not establish a prima facie case of ineffective assistance of counsel and,
    therefore, no evidentiary hearing was required.
    Affirmed.
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    13