STATE OF NEW JERSEY VS. JASON M. BRUNELL (09-08-0357, SUSSEX 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NOT FOR PUBLICATION WITHOUT THE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-0140-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JASON M. BRUNELL,
Defendant-Appellant.
_________________________
Submitted November 13, 2019 – Decided December 17, 2019
Before Judges Fisher, Accurso, and Gilson.
On appeal from the Superior Court of New Jersey, Law
Division, Sussex County, Indictment No. 09-08-0357.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven J. Sloan, Designated Counsel and on
the brief).
Francis A. Koch, Sussex County Prosecutor, attorney
for respondent (Shaina Brenner, Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant Jason Brunell appeals from an order denying his petition for
post-conviction relief (PCR), which was entered following oral arguments, but
without an evidentiary hearing. We affirm because the petition was time-barred
under Rule 3:22-12(a)(1) and otherwise lacked merit.
I.
In 2009, defendant was charged with second-degree sexual assault,
N.J.S.A. 2C:14-2(c)(4); third-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4(a); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-
3(b); and two counts of third-degree witness tampering, N.J.S.A. 2C:28-5(a). In
May 2010, defendant pled guilty to fourth-degree criminal sexual contact. As
part of the plea agreement, the State agreed to recommend that he be sentenced
to two years of probation and that the other charges be dismissed.
Before pleading guilty, defendant testified that he (1) had reviewed the
charges against him with his counsel; (2) had reviewed the discovery with his
counsel; (3) had discussed potential defenses with his counsel; (4) was satisfied
with his counsel's legal services; (5) understood the crime to which he was
pleading guilty; (6) had reviewed, initialed, and signed the plea forms, including
a form explaining that he was subject to registration as a sex offender under
A-0140-18T1
2
Megan's Law, N.J.S.A. 2C:7-1 to -23; and (7) was pleading guilty of his own
free will and no one was forcing or coercing him into pleading guilty.
Defendant then admitted that in 2007 he had hugged and touched the
victim's breasts to sexually gratify himself. He also acknowledged the victim
was then between the ages of thirteen and sixteen years old and he was at least
four years older than the victim. Indeed, the record established that defendant
was twenty-seven years old when the crime occurred.
On July 9, 2010, defendant was sentenced in accordance with the plea
agreement to two years of probation. The sentencing judge expressly informed
defendant that he had five years within which he could file a petition for PCR.
Defendant did not file a direct appeal. Instead, over seven years later, on
August 15, 2017, defendant filed a PCR petition. He was assigned PCR counsel
who filed supplemental papers on his behalf. In his petition and supplemental
certification, defendant contended that (1) he never received a copy of the
discovery from his trial attorney; (2) he did not know "everything" he was
accused of; (3) the victim's mother had called him and told him that she knew
he was not guilty, but his counsel failed to follow up with her to establish a
defense; (4) the allegations against him were all based on incredible hearsay; (5)
his counsel pushed and scared him into pleading guilty; and (6) he pled guilty
A-0140-18T1
3
because his counsel explained the plea agreement and charges differently from
the actual terms of the agreement.
On May 15, 2018, Judge N. Peter Conforti heard oral argument on
defendant's petition. Judge Conforti had taken defendant's guilty plea and
sentenced defendant. That same day, Judge Conforti entered an order denying
defendant's PCR petition and explained the reasons for his ruling on the record.
In short, Judge Conforti found the petition time-barred and defendant had shown
no excusable neglect for filing the petition late. The judge also pointed out that
all of defendant's contentions about the ineffective assistance of his trial counsel
were rebutted by the record, in particular by the testimony he had given when
he pled guilty and information he received when sentenced.
II.
On appeal, defendant makes three arguments, which he articulates as
follows:
POINT I – THE TRIAL COURT MISAPPLIED THE
LAW IN DENYING THE DEFENDANT'S PETITION
FOR POST CONVICTION RELIEF, IN PART, ON
PROCEDURAL GROUNDS, PURSUANT TO RULE
3:22-12
POINT II – THE TRIAL COURT MISAPPLIED THE
LAW IN DENYING THE DEFENDANT'S PETITION
FOR POST-CONVICTION RELIEF WITHOUT
AFFORDING HIM AN EVIDENTIARY HEARING
A-0140-18T1
4
TO FULLY ADDRESS HIS CONTENTION THAT HE
WAS PROVIDED WITH INADEQUATE
ASSISTANCE FROM TRIAL COUNSEL AS HE
FAILED TO RECEIVE ADEQUATE LEGAL
ADVICE AS TO THE PENAL CONSEQUENCES OF
HIS PLEA
POINT III – THE TRIAL COURT MISAPPLIED THE
LAW IN DENYING THE DEFENDANT'S PETITION
FOR POST-CONVICTION RELIEF WITHOUT
AFFORDING HIM AN EVIDENTIARY HEARING
TO FULLY ADDRESS HIS CONTENTION THAT HE
SHOULD BE PERMITTED TO WITHDRAW HIS
PLEA BARGAIN TO CORRECT A MANIFEST
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
that defendant's PCR petition is time-barred and lacks substantive merit.
A.
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). Our Supreme Court has stated
A-0140-18T1
5
that "[t]he time bar should be relaxed only 'under exceptional circumstances'
because '[a]s time passes, justice becomes more elusive and the necessity for
preserving finality and certainty of judgments increases.'" State v. Goodwin,
173 N.J. 583, 594 (2002) (second alteration in original) (quoting State v.
Afanador, 151 N.J. 41, 52 (1997)). Moreover, we have held that "when a first
PCR petition" is filed "more than five years after the date of entry of the
judgment of conviction," the PCR court should examine the "timeliness of the
petition" and the defendant must "submit competent evidence to satisfy the
standards for relaxing the rule's time restrictions." State v. Brown, 455 N.J.
Super. 460, 470 (App. Div. 2018).
To establish "excusable neglect," a defendant must demonstrate "more
than simply . . . a plausible explanation for a failure to file a timely PCR
petition." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). Factors
to be considered include "the extent and cause of the delay, the prejudice to the
State, and the importance of the [defendant]'s claim in determining whether
there has been an 'injustice' sufficient to relax the time limits." Afanador, 151
N.J. at 52 (citing State v. Mitchell, 126 N.J. 565, 580 (1992)).
Defendant's judgment of conviction was entered on July 9, 2010. He filed
his petition for PCR over seven years later on August 15, 2017. Furthermore,
A-0140-18T1
6
he established no excusable neglect for that late filing. As already noted, at
sentencing he was told he had five years to file a PCR petition. Defendant argues
that, despite the court's advice to him, he should be excused because his plea
counsel did not follow up and remind him of that five year limitation. That
argument lacks merit.
B.
Defendant is also 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
(1987) (adopting the Strickland test).
"To set aside a guilty plea based on ineffective assistance of counsel, a
defendant must show . . . 'that there is a reasonable probability that, but for
counsel's errors, [defendant] would not have pled guilty and would have insisted
on going to trial.'" State v. DiFrisco, 137 N.J. 434, 457 (1994) (alteration in
A-0140-18T1
7
original) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Moreover,
defendant must make those showings by presenting more than "bald assertions
that he [or she] was denied the effective assistance of counsel." State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).
Contrary to the assertions in defendant's belated certifications, the record
establishes that none of the asserted grounds for ineffective assistance of plea
counsel has merit. In taking defendant's plea, Judge Conforti confirmed that
defendant had reviewed the charges and discovery with his counsel, understood
his potential defenses, understood the charge to which he was pleading guilty,
and he was pleading guilty freely and voluntarily. Judge Conforti also went over
the plea agreement with defendant and confirmed that defendant understood that
agreement, including that he was pleading guilty to a crime that would subject
him to registration under Megan's Law.
C.
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
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-
A-0140-18T1
8
10(b)). As we have previously detailed, the existing record provided an
adequate basis for the findings that defendant did not establish a prima facie
case of ineffective assistance of counsel and, therefore, an evidentiary hearing
was not required.
Affirmed.
A-0140-18T1
9