STATE OF NEW JERSEY v. M.P

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

M.P.,

Defendant-Appellant.

____________________________

June 10, 2016

Submitted May 23, 2016 Decided

Before Judges Accurso and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 03-01-0433, 10-12-3474 and 12-01-0234.

Joseph E. Krakora, Public Defender, attorney for appellant (Andrew J. Shaw, Designated Counsel, on the brief).

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant M.P. appeals from the denial of his petition for post-conviction relief (PCR) filed ten years after entry of his conviction. Because we agree that the petition was time-barred and, in any event, without merit, we affirm.

Indicted for second-degree sexual assault, N.J.S.A. 2C:14-2c(1); third-degree criminal restraint, N.J.S.A. 2C:13-2a; second-degree sexual assault, N.J.S.A. 2C:14-2c(4); and third-degree child endangerment, N.J.S.A. 2C:24-4a; defendant in 2003 pled guilty in a negotiated agreement to second-degree sexual assault, N.J.S.A. 2C:14-2c(4), in exchange for the State's recommendation of five years' imprisonment, Megan's Law classification and community supervision for life, N.J.S.A. 2C:43-6.4a. Although alleged to have committed a forcible sexual assault against the victim, defendant pled guilty only to engaging in intercourse with the fourteen-year-old victim when he was eighteen years old.

Defendant was evaluated at Avenel and his crime was determined not to be part of a pattern of repetitive and compulsive behavior. The evaluator, however, offered her overall clinical impression of defendant as "a narcissistic and hedonistic young male, more closely wedded to the rules of the street than the rules of society, who exploits others, particularly women, for his own gratification."

In response to questions from the sentencing judge, both defendant and his counsel confirmed review of the presentence and Avenel reports and that both were "in order" and required no additions or corrections. The judge discussed the Avenel evaluator's conclusion with defendant in the course of sentencing him to a five-year-flat prison term to run concurrent to a four-year term the judge imposed for a violation of probation occasioned by his conviction. Defendant did not appeal.

In 2012, defendant was sentenced in accordance with a plea agreement, resolving two indictments, to an aggregate term of three years for convictions of third-degree failure to comply with GPS monitoring, N.J.S.A. 30:4-123.94; and fourth-degree failure to verify address under Megan's Law, N.J.S.A. 2C:7-2e. Defendant did not appeal either conviction, but in 2013 he filed a pro se motion and twelve-page brief seeking to correct or reduce his 2003 sentence pursuant to Rule 3:21-10(b)(5), by vacating the provision requiring community supervision for life under Megan's Law.

The Law Division judge treated defendant's filing as a PCR petition and assigned counsel. At the hearing on the petition, assigned counsel made clear the only relief defendant was seeking was "to simply allow an amendment to the defense's position at the time of sentencing to note an objection to any part [of] the presentence report and the record created from that that were inconsistent with the contents of the plea." When the judge sought to clarify that defendant "wants [the court] to go back to 2003 and when the question was asked is the presentence report correct and [defendant] says yes, you want [the court] to change the record to say his attorney objected," counsel responded, "Just to note that there is an objection. That's it, Judge. That's all he's asking."

The judge denied defendant's petition on the basis that it was time-barred, and failed to establish ineffective assistance under the test formulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Noting the petition was not supported by any certifications and that all the information supporting defendant's claim was in the record, the judge found it could have been raised on direct appeal.

The judge further found that defendant's fear that his counsel's failure to object to the police reports contained in the presentence report and the police version of the facts included in the Avenel report could someday harm him should the State petition for his civil commitment was speculative. The judge commented that police reports of the crime are routinely included in presentence reports but do not thereby constitute the defendant's admission to the facts contained in the reports, even in the case of a guilty plea. He thus rejected the application on the basis it was time-barred, could have been raised on direct appeal, that defendant could not demonstrate the performance of his plea counsel had been deficient, and defendant had not suffered prejudice in any event.

On appeal, defendant contends the five-year time bar should be relaxed because the delay was owing to excusable neglect, enforcement of the bar would result in fundamental injustice; and the judge should have conducted an evidentiary hearing.1 He frames the issues as follows

POINT I

THE PCR COURT ERRED IN DENYING AN EVIDENTIARY HEARING BECAUSE THE DEFENDANT HAD ESTABLISHED A REASONABLE LIKELIHOOD THAT HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL WOULD ULTIMATELY SUCCEED ON THE MERITS.

POINT II

THE PETITION SHOULD NOT HAVE BEEN BARRED BY PROCEDURAL CONSIDERATIONS.

A. The Petition Should Not Be Time-Barred.

B. The Petition Should Not Have Been Procedurally Barred By Rule 3:22-4 or Rule 3:22-5.

We agree with the Law Division judge that defendant's claim is time-barred. Under Rule 3:22-12(a)(1), a first petition for PCR must be filed no more than five years after entry of the judgment of conviction "unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that 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." Defendant meets neither of those requirements.

The only reason defendant offers for his failure to file a PCR petition challenging his conviction within five years is his "very limited cognitive abilities (as noted in the Avenel report)," which, defendant contends "clearly affected his ability to file a timely petition." The Avenel report, although noting defendant's "High Borderline" range score on the Shipley Institute of Living scale, apparently reflective "of a verbally based learning disability," also reflects that on examination, defendant presented with an "[e]stimated intellectual level . . . somewhat higher than testing suggests." Defendant did not proffer the opinion of a psychologist or other expert attesting to any cognitive limitations and why they would have prevented him from pursuing a timely petition. Moreover, defendant nowhere explains how his alleged cognitive limitations permitted him to file a comprehensive pro se motion and brief in 2013, but not five to ten years earlier. We thus agree with the trial court that defendant has not presented, on this record, the exceptional circumstances required to permit relief from the five-year bar. See State v. Afanador, 151 N.J. 41, 52 (1997).

We also agree that strict adherence to the time bar of Rule 3:22-12(a)(1) results in no injustice to defendant here, most particularly because his claim that his counsel's failure to object to the contents of the presentence and Avenel reports might one day redound to his detriment in a civil commitment proceeding or otherwise is wholly speculative.

We further agree that defendant has failed to establish a prima facie claim of ineffective assistance on the merits. A review of the 2003 plea colloquy makes plain the limited factual basis offered for defendant's plea to sexual assault based solely on defendant's age and the age of the victim, N.J.S.A. 2C:14-2c(4), as alleged in count three of Indictment No. 03-01-0433. Although the victim alleged defendant used force, as reflective in her version of events included in the presentence and Avenel reports, defendant did not admit that, and the count of the indictment charging violation of N.J.S.A. 2C:14-2c(1) was dismissed pursuant to the plea agreement. We fail to see how counsel's failure to object to the victim's version of the crime being included in the reports constitutes deficient performance in light of the plea.

Finally, we reject defendant's claim that the case should be remanded for an evidentiary hearing. Because defendant failed to establish a prima facie case of ineffective assistance of counsel, no evidentiary hearing was required. State v. Preciose, 129 N.J. 451, 462 (1992).

Affirmed.

1 Defendant also argues in a footnote that the judge should have ruled his 2003 plea was not knowing and voluntary. We need not consider that claim as it was not raised to the trial court and is at odds with the limited relief defendant claims to be seeking on appeal. See R. 3:22-8; State v. Robinson, 200 N.J. 1, 20 (2009).