STATE OF NEW JERSEY VS. KAVON A. COLEMAN (07-10-1753, OCEAN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

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NOT FOR PUBLICATION WITHOUT THE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-0274-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KAVON A. COLEMAN,
a/k/a KAVON A.
POWELL-COLEMAN,
Defendant-Appellant.
________________________
Submitted October 23, 2019 - Decided November 1, 2019
Before Judges Gooden Brown and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 07-10-1753.
Joseph E. Krakora, Public Defender, attorney for
appellant (Dianne Glenn, Designated Counsel, on the
brief).
Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel Marzarella, Chief
Appellate Attorney, of counsel; Cheryl L. Hammel,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Kavon A. Powell-Coleman appeals from a June 12, 2018 order
denying his petition for post-conviction relief (PCR) without an evidentiary
hearing. We affirm for the reasons expressed in the thorough and well -written
opinion of Judge Guy P. Ryan.
In 2007, an Ocean County grand jury indicted defendant of: second-degree
sexual assault, N.J.S.A. 2C:14-2(c)(1), count one; third-degree endangering the
welfare of a child, N.J.S.A. 2C:24-4(a), counts two and four; and fourth-degree
sexual contact, N.J.S.A. 2C:14-3(b), count three. On May 5, 2009, defendant
entered into a plea agreement and pled guilty to count two in exchange for the
dismissal of the remaining charges. On September 11, 2009, the court sentenced
defendant in accordance with the plea agreement to 491 days of incarceration ,
which was the time he served in the Ocean County jail, parole supervision for
life (PSL), and Megan's Law registration, 1 and required defendant to pay
penalties and fines, and provide DNA samples.
Defendant did not appeal from his conviction or seek to retract his guilty
plea. Instead, in August 2017, nearly eight years later, he filed a PCR petition.
He argued there was excusable neglect for filing his petition out of time, namely,
1
N.J.S.A. 2C:7-1 to -23.
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neither the court, nor his counsel, advised him of the five-year time limitation
for PCR petitions. Additionally, he claimed his trial and plea counsel were
ineffective because they failed to explain his plea subjected him to PSL and
forced him to enter into the plea instead of proceeding to trial . He argued the
court should address the merits of his petition and not deny it on grounds of time
or procedural bars.
Following oral argument, Judge Ryan issued a detailed, twenty-five page
decision denying the petition. The judge found the petition was time barred
because it was filed beyond the five-year time limitation set forth in Rule 3:22-
12(a)(1). He determined defendant failed to demonstrate excusable neglect as a
general matter. The judge also rejected defendant's claim his lack of knowledge
of the time limitation was excusable neglect because "at the time of the plea and
sentence in this matter [Rule 3:21-4(h)] did not require advisement of the five-
year time frame for filing a PCR [petition]." The judge found defendant's
petition was procedurally barred pursuant to Rule 3:22-4 because he could have
raised the claims related to the voluntary nature of his plea on direct appeal.
The judge found even if the petition was timely and not procedurally
barred, an evidentiary hearing was not warranted because defendant failed to
establish a prima facie case of ineffective assistance of counsel. Reviewing the
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record of defendant's plea and sentencing proceedings, the judge stated
defendant's "bald assertion he was 'coerced' to enter into the plea agree ment is
completely unsupported by the record." The judge referred to defendant's plea
testimony where he advised the court he had enough time to contemplate the
plea, meet with his counsel who answered his questions, and was satisfied with
his counsel's representation. The judge made similar findings based on his
review of the sentencing transcript.
Judge Ryan also concluded "[t]he record demonstrates [defendant] was
repeatedly advised he was subject to PSL. No colorable argument has been
made that [defendant] was unaware of this requirement." The judge concluded
defendant's "counsel were very effective in securing a favorable result for
[him]." The judge found no credible basis to support defendant's claim he
wanted to proceed to trial. As the judge noted, on the day of defendant's plea,
the State was prepared to proceed with its case and
[t]he victim was present in the courtroom. . . . [I]n his
PCR petition, defendant [asserts] that he was planning
to testify that the contact was consensual. Thus,
[defendant] would have implicated himself and
admitted his sexual contact with a [fifteen-]year-old
girl, hardly a sure win at trial for [defendant].
The judge concluded defendant failed to establish a prima facie case for
ineffective assistance of counsel to warrant an evidentiary hearing.
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On appeal, defendant raises the following points:
POINT I – THE PCR COURT ERRED IN
DETERMINING DEFENDANT'S PETITION FOR
POST-CONVICTION RELIEF WAS TIME-BARRED
AS EXCUSABLE NEGLECT OR EXCEPTIONAL
CIRCUMSTANCE WAS APPLICABLE PURSUANT
TO [RULE] 3:22-12(a)(1) BECAUSE NEITHER THE
COURT NOR TRIAL COUNSEL INFORMED THE
DEFENDANT OF THE FIVE-YEAR TIME LIMIT.
POINT II – THE PCR COURT ERRED IN
DETERMINING DEFENDANT'S PETITION WAS
PROCEDURALLY-BARRED SINCE HE DID NOT
RAISE AN INEFFECTIVE ASSISTANCE OF
COUNSEL CLAIM ON DIRECT APPEAL.
POINT III – THE PCR COURT ERRED IN
DETERMINING THE DEFENDANT DID NOT
ESTABLISH A PRIMA FACIE CASE OF
INEFFECTIVE ASSISTANCE OF COUNSEL.
I.
"Our standard of review is necessarily deferential to a PCR court's factual
findings based on its review of live witness testimony. In such circumstances
we will uphold the PCR court's findings that are supported by sufficient credible
evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013). However,
"where . . . no evidentiary hearing was conducted, we may review the factual
inferences the court has drawn from the documentary record de novo." State v.
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Blake 444 N.J. Super. 285, 294 (App. Div. 2016) (citing State v. Harris, 181
N.J. 391, 420-21 (2004)).
After reviewing the record in light of the applicable legal standards, we
conclude defendant's arguments are uniformly without merit, and we affirm
substantially for the reasons stated in Judge Ryan's written opinion. R. 2:11-
3(e)(2).
Affirmed.
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