STATE OF NEW JERSEY VS. JEFFREY N. MOORE (10-09-0331 AND 10-09-0332, WARREN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-0285-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JEFFREY N. MOORE, 1
Defendant-Appellant.
_______________________
Submitted January 13, 2021 – Decided February 16, 2021
Before Judges Vernoia and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Warren County, Accusation Nos. 10-09-0331
and 10-09-0332.
Joseph E. Krakora, Public Defender, attorney for
appellant (Frank M. Gennaro, Designated Counsel, on
the brief).
James L. Pfeiffer, Acting Warren County Prosecutor,
attorney for respondent (Dit Mosco, Special Deputy
Attorney General/Acting Assistant Prosecutor, of
counsel and on the brief).
1
Defendant is designated in the record also as Jeffrey Nicholas Moore.
PER CURIAM
Defendant Jeffrey N. Moore appeals from an order denying his post-
conviction relief (PCR) without an evidentiary hearing. We affirm.
On September 28, 2010, defendant pled guilty under separate accusations
to third-degree endangering the welfare of a child involving sexual conduct,
N.J.S.A. 2C:24-4(a), third-degree terroristic threats, N.J.S.A. 2C:12-3(b), a
disorderly persons offense of possession of a controlled dangerous substance
(CDS), N.J.S.A. 2C:35-10(a)(4), and an amended disorderly persons offense of
CDS distribution, N.J.S.A. 2C:35-5(b). Defendant signed and initialed each
page of the plea form, including a supplemental plea form for sexual offenses.
Also, during his plea hearing, defendant acknowledged that as a result of his
guilty plea to the endangering charge, he would be sentenced to parole
supervision for life (PSL), N.J.S.A. 2C:43-6.4(a), and would be required to
comply with the requirements of Megan's Law, N.J.S.A. 2C:7-1 to -11.
Defendant testified he understood the nature of his charges and understood his
rights. He further testified he reviewed his plea with his attorney the night
before the plea hearing and had an ample time to discuss the matter with counsel.
Further, defendant provided a factual basis for his offenses. On the
endangering charge, he admitted he had sexual intercourse with, and performed
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oral sex on, his fifteen-year-old victim. At the conclusion of the plea hearing,
the judge found defendant was "adequately advised" of his rights, that he waived
those rights, free of threats or coercion, and that he was satisfied with his
attorney's representation.
Defendant was sentenced in accordance with his plea agreement on May
13, 2011. The sentencing judge imposed a three-year prison term for the
endangering offense, conditioned on PSL and Megan's Law restrictions, to run
concurrent to a three-year term for the terroristic threats charge. 2 At the
conclusion of the sentencing proceeding, the judge advised defendant he had
forty-five days to appeal his conviction and sentence. The judge added, "[i]f
you want to appeal and you miss that 45-day deadline, it will be extended for 30
days for good cause shown . . . . You also have five years from today's date to
file a petition for post-conviction relief." Asked by the judge if he understood
those rights, defendant answered, "[y]es." Defendant did not appeal his
conviction or sentence.
2
The record does not reflect that any sentences were pronounced on the two
CDS-related disorderly persons offenses to which defendant pled guilty. It is
unnecessary for us to address the resolution of these offenses on this appeal, but
we note either party is free to apply directly to the trial court to seek appropriate
relief based on any outstanding charges.
A-0285-19
3
Defendant filed a pro se PCR petition on December 12, 2017, more than
six years after he was convicted. Once he was assigned PCR counsel, he
supplemented his petition. Defendant contended, among other claims, that PSL
"violates the ex post facto clause," "is unconstitutional and should be abolished,"
that the consequences of his plea were not explained to him, and that his trial
counsel was ineffective. In particular, he claimed his attorney did not properly
prepare and investigate his case. Further, he argued that if he had known the
"actual consequences of the guilty plea, [he] would never have accepted it and
would have taken the case to trial." Additionally, defendant certified he was not
advised by his "attorney or anyone else that [he] could appeal [his] conviction"
and "never advised that [he] could file a petition for post-conviction relief and
that [he] had to do that within 5 years."
Following oral argument on June 27, 2019, the PCR judge denied the
petition without an evidentiary hearing. He found defendant's argument
regarding ex post facto laws was unpersuasive and that his petition was time
barred. However, the judge also considered the merits of defendant's petition.
He noted defendant was "given the minimum sentence for this third -degree
crime of endangering the welfare of a child." Additionally, the judge referred
to the transcript from defendant's plea and sentencing hearings and found:
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[defendant] raises the issue of ineffective assistance
[of] counsel. In reviewing the record before me, which
contains some statements under oath, a colloquy plea of
guilty by the appellant, Mr. Moore, under oath, and,
today, claiming that the only reason he pled guilty was
because his lawyer told him he had to do that.
....
I cannot find evidence enough in this record . . . that
counsel in this matter was ineffective . . . nor can I find
any justification for not filing an appeal within the five
years provided by our statute. Particularly, although he
denies that he was advised of the five-year provision,
it's clearly in the record. So, I can't find that statement
to be credible.
On appeal, defendant raises the following arguments:
POINT I
THE PCR COURT ERRED BY FINDING THAT
DEFENDANT'S PETITION WAS TIME BARRED
AND BY DENYING THE PETITION WITHOUT
AFFORDING DEFENDANT AN EVIDENTIARY
HEARING.
A. THE PREVAILING LEGAL PRINCIPLES
REGARDING CLAIMS FOR INEFFECTIVE
ASSISTANCE OF COUNSEL, EVIDENTIARY
HEARINGS AND PETITIONS FOR [PCR].
B. THE TIME BAR OF [RULE] 3:22-12 SHOULD
HAVE BEEN RELAXED.
C. FAILURE TO COMMUNICATE AND
INVESTIGATE.
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Having considered these arguments in light of the record and applicable
legal standards, we are not persuaded.
A PCR petition must be filed within five years of the entry of the judgment
of conviction. R. 3:22-12(a)(1). However, "[t]he five-year time limit is not
absolute." State v. Milne, 178 N.J. 486, 492 (2004). "[A] court may relax the
time bar if the defendant alleges facts demonstrating that the delay was due to
the defendant's excusable neglect or if the 'interests of justice' demand it." State
v. Goodwin, 173 N.J. 583, 594 (2002).
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 application of
the time bar in Rule 3:22-12(a)(1), the 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 Milne, 178 N.J. at 492). In determining whether the
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
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'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)).
Here, defendant did not demonstrate his failure to file a timely PCR
petition was due to "excusable neglect." Instead, he argued he was unaware he
had to file his PCR petition within five years of conviction. Yet, the record
clearly demonstrates he was informed of the five-year deadline at sentencing.
Moreover, excusable neglect under Rule 3:22-12 cannot be based on ignorance,
misunderstanding, or a lack of sophistication in the law. State v. Murray, 162
N.J. 240, 246 (2000) (citing Mitchell, 126 N.J. at 580). Thus, the PCR judge
properly denied defendant's PCR petition as time barred under Rule 3:22-12
(a)(1).
Although we dispose of this appeal on procedural grounds, we briefly
address the merits of defendant's ineffective assistance of counsel claims. To
demonstrate ineffective assistance of counsel, a defendant must demonstrate: (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). Moreover, "[t]o set aside a guilty plea based
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on ineffective assistance of counsel, a defendant must show . . . 'that there is a
reasonable probability that, 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)). 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)).
Merely raising a claim for PCR does not entitle a defendant to an
evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.
1999). Further, 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)).
Here, we are persuaded defendant did not demonstrate it would have been
rational for him to reject the highly favorable plea offer tendered by the State.
See Maldon, 422 N.J. Super. at 486. Indeed, although he stated in his PCR
petition that he "wanted to take the case to trial and knew that [he] would be
acquitted as the prosecutor would not be able to prove their case," such
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statements amount to bald assertions. See Cummings, 321 N.J. Super. at 170(explaining "bald assertions" are insufficient to sustain a defendant's burden of
establishing a prima facie case of ineffective assistance of counsel under the
Strickland standard). Not only did defendant fail to articulate a viable trial
strategy to bolster his claims, but the proofs against defendant were strong. For
example, he provided a statement to the police, admitting he performed oral sex
on, and engaged in sexual intercourse with, his fifteen-year-old victim; the
victim provided similar information to the local prosecutor's office . Regarding
the terroristic threats offense, the record reflects defendant threatened to kill a
police officer while he was being processed at police headquarters.
Additionally, defendant provided a detailed factual basis for each offense.
Prior to doing so, he assured the trial court that he discussed his guilty pleas
with his lawyer the night before the plea hearing and was satisfied with his
attorney's services. Moreover, in exchange for his guilty pleas, he received a
favorable plea bargain which resulted in the dismissal of two second-degree
sexual assault charges, N.J.S.A. 2C:14-2(c)(4), as well as other charges. Also,
he received the benefit of the State's recommendation that he serve concurrent
three-year prison terms on his third-degree offenses. Subsequently, the
sentencing judge adhered to the plea agreement and imposed the minimum
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sentence for defendant's endangering offense. Accordingly, we are convinced
the PCR judge properly rejected defendant's ineffective assistance of counsel
claims and that the judge did not abuse his discretion in denying defendant's
PCR petition without an evidentiary hearing.
To the extent we have not addressed defendant's remaining arguments, we
are satisfied they lack sufficient merit to warrant discussion in this opinion. R.
2:11-3(e)(2).
Affirmed.
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