STATE OF NEW JERSEY VS. M.E. (08-04-0703, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-4716-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
M.E.,1
Defendant-Appellant.
Submitted August 5, 2019 – Decided August 9, 2019
Before Judges Sabatino and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 08-04-0703.
Joseph E. Krakora, Public Defender, attorney for
appellant (Monique D. Moyse, Designated Counsel, on
the brief.)
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Erin M. Campbell, Assistant Prosecutor,
on the brief.)
1
We use initials to protect the privacy of the victims.
PER CURIAM
Defendant M.E. appeals from the denial of his petition for post-conviction
relief (PCR) without an evidentiary hearing. We affirm substantially for the
reasons stated by Judge John A. Young, Jr. in his cogent written opinion, but
remand for a correction of the judgment of conviction (JOC), consistent with his
oral order.
Because Judge Young's opinion thoroughly and correctly addressed all of
defendant's PCR issues, a brief summary will suffice. In January 2008,
defendant stood naked, thrusting his hips in front of a large picture window of
his second-floor Harrison apartment. Two girls under the age of sixteen
observed him. Following his arrest, defendant was charged in a nine-count
Hudson County indictment. Thereafter, defendant pled guilty to one count of
third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), pursuant
to a negotiated plea agreement with the State.
In October 2008, the court imposed a three-year suspended sentence with
various conditions, including outpatient sex offender treatment. Defendant also
was ordered to comply with Megan's Law and was subject to Parole Supervision
for Life (PSL). The court dismissed the remaining counts of the indictment
A-4716-17T1
2
pursuant to the plea agreement. Defendant did not file a direct appeal, nor did
he file a motion to vacate his guilty plea.
More than eight years later, defendant filed pro se the PCR petition under
review. Defendant claimed he was "somehow" sentenced to PSL and Megan's
Law, but that these conditions were not set forth in the JOC. 2 Appointed PCR
counsel elaborated that plea counsel's performance was deficient by failing to
explain the conditions of PSL and Megan's Law, and failing to review discovery
and discuss with defendant potential defenses and motions. Defendant also
claimed he was entitled to withdraw his guilty plea under State v. Slater, 198
N.J. 145 (2009), because "he was denied effective assistance of counsel and
. . . did not understand the penal consequences of his plea."
On appeal, defendant primarily renews the arguments he made before the
PCR court. More particularly, he contends:
POINT ONE
[DEFENDANT] IS ENTITLED TO AN
EVIDENTIARY HEARING ON HIS CLAIM THAT
HIS ATTORNEY RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL BY FAILING TO
2
During oral argument, the PCR judge noted the JOC did not accurately set
forth defendant's suspended sentence nor the collateral consequences of his plea,
and ordered that the JOC should be amended accordingly. Because the parties
did not provide an amended JOC on appeal, nor otherwise indicate the JOC was
amended, we remand for the limited purpose of correcting the JOC.
A-4716-17T1
3
INFORM HIM ADEQUATELY OF THE
REQUIREMENTS AND CONSEQUENCES OF
PAROLE SUPERVISION FOR LIFE, AND FAILING
TO REVIEW HIS DEFENSES AND DISCOVERY
WITH HIM.
POINT TWO
THIS MATTER MUST BE REMANDED FOR
FINDINGS OF FACT AND CONCLUSIONS OF
LAW ON [DEFENDANT]'S CLAIM THAT HIS
GUILTY PLEA MUST BE SET ASIDE UNDER
STATE V. SLATER, 198 N.J. 145 (2009).
POINT THREE
IN THE ALTERNATIVE, [DEFENDANT]'S GUILTY
PLEA MUST BE SET ASIDE.
POINT FOUR
THE PCR COURT ERRONEOUSLY RULED THAT
[DEFENDANT]'S PETITION WAS TIME BARRED
BECAUSE ANY DELAY IN FILING THE PETITION
WAS DUE TO DEFENDANT'S EXCUSABLE
NEGLECT AND THERE IS A REASONABLE
PROBABILITY THAT IF . . . DEFENDANT'S
FACTUAL ASSERTIONS WERE FOUND TO BE
TRUE, ENFORCEMENT OF THE TIME BAR
WOULD RESULT IN A FUNDAMENTAL
INJUSTICE.
We have carefully considered these arguments, in light of the applicable
law, and conclude they lack sufficient merit to warrant extended discussion in
a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons set
A-4716-17T1
4
forth by Judge Young in his well-reasoned written decision, and add the
following brief remarks.
In order to establish a prima facie claim, a defendant's petition must
satisfy the time limits for filing a claim. See State v. Echols, 199 N.J. 344, 357
(2009). Rule 3:22-12(a)(1) provides that a defendant's first petition for PCR
shall be filed no more than five years after the entry of the JOC. Subsection
(A) of the Rule permits a PCR court to relax the five-year time bar if the petition
alleges facts demonstrating the filing was untimely due to defendant's excusable
neglect and there is a reasonable probability that, if defendant's factual
assertions were found to be true, enforcement of the time bar would res ult in a
fundamental injustice. Nonetheless, "[t]he concept of excusable neglect
encompasses 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). If the petitioner fails to allege sufficient facts, the Rule bars the
claim. State v. Mitchell, 126 N.J. 565, 576 (1992).
Here, the JOC was entered in October 2008, and defendant's PCR petition
was filed more than eight years later in January 2017. Defendant asserts he
established excusable neglect because "he did not understand the consequences
of his plea . . . and there would be a fundamental injustice if a court did not
A-4716-17T1
5
reach the merits of [his] petition." As Judge Young aptly recognized, however,
defendant's claims are nothing more than bald assertions. See State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Indeed, defendant
failed to file an affidavit or certification to support those assertions. According
to the judge, defendant "has been compliant with the terms of his [PSL] since
he was sentenced in 2008[,]" and "never expressed to the [c]ourt on the record
or in writing that he did not understand [PSL] in the more than [eight] years that
he ha[d] been complying with the requirement."
Moreover, the record belies defendant's claims. For example, at the plea
hearing, defendant acknowledged he would "be placed on Parole Supervision
for the remainder of [his] life." Contrary to defendant's contention, the plea
form specifically states he would be subject to PSL (and Megan's Law) in his
answer to question thirteen. Defendant's initials are placed next to that
paragraph and on the bottom of the same page.
Defendant also acknowledged he "had enough time to discuss this case,
its facts, it[]s circumstances, as well as [his r]ights and any defenses that [he]
might have to this charge with [his] lawyer before deciding to plead guilty[.]"
Further, he said he did not have "any remaining questions" for his plea counsel
or the court "regarding the terms or conditions of the [plea a]greement."
A-4716-17T1
6
Because defendant failed to establish excusable neglect for his untimely
filing, and his assertion that enforcement of the time bar would result in a
fundamental injustice finds no support in the record, the judge correctly
determined defendant's PCR petition was barred under Rule 3:22-12(a)(1). For
those same reasons, we also agree with Judge Young's ensuing analysis of the
merits of defendant's contentions, and the judge's ultimate conclusion that
defendant's claims were unsupported by the record. Because there was no prima
facie showing of ineffective assistance of counsel, an evidentiary hearing was
not necessary to resolve defendant's PCR claims. State v. Preciose, 129 N.J.
451, 462 (1992); R. 3:22-10(b).
Nor are we persuaded by defendant's alternate arguments that we should
remand this matter for findings of fact and conclusions of law regarding
defendant's belated Slater3 argument, or vacate his guilty plea. Piggybacking
3
In Slater, our Supreme Court set forth four factors for courts to consider in
deciding a defendant's motion to withdraw a guilty plea: "(1) whether the
defendant has asserted a colorable claim of innocence; (2) the nature and
strength of defendant's reasons for withdrawal; (3) the existence of a plea
bargain; and (4) whether withdrawal would result in unfair prejudice to the State
or unfair advantage to the accused." 198 N.J. at 157-58. Where, as here, the
application is post-sentence, a defendant must demonstrate that a "manifest
injustice" occurred. Id. at 158. "[E]fforts to withdraw a plea after sentencing
must be substantiated by strong, compelling reasons." Id. at 160 (citing R. 3:2-
1).
A-4716-17T1
7
on his ineffective assistance of counsel claim, defendant claims he should be
permitted to withdraw his plea because his attorney failed to inform him of the
PSL consequences of his plea. As we stated above, Judge Young correctly
concluded defendant's claims were nothing more than bald assertions. The
judge also expressly recognized defendant "never claimed innocence of the
charges." See Slater, 198 N.J. at 158. Although the judge did not specifically
address each Slater factor in denying defendant's untimely petition on the
merits, we are satisfied from our review of the record, that defendant's
application failed to satisfy those factors and failed to demonstrate a manifest
injustice occurred. See State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div.
2014) (citing State v. Harris, 181 N.J. 391, 420-21 (2004)) ("[W]here[, as here,]
the [PCR] court does not hold an evidentiary hearing, we may exercise de novo
review over the factual inferences the trial court has drawn from the
documentary record.").
Affirmed in part, remanded solely for the entry of a corrected JOC. We
do not retain jurisdiction.
A-4716-17T1
8