STATE OF NEW JERSEY v. KEVIN L. SHERIDAN

NOT FOR PUBLICATION WITHOUT THE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.

KEVIN L. SHERIDAN,

Defendant-Appellant.

_____________________________

March 24, 2014

Submitted February 25, 2014 Decided

Before Judges Reisner and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Accusation No. 00-05-0303.

Joseph E. Krakora, Public Defender, attorney for appellant (Michele C. Buckley, Designated Counsel, on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Kevin L. Sheridan appeals from a June 3, 2011 order denying, without an evidentiary hearing, his petition for post-conviction relief (PCR) from a conviction after a guilty plea. We affirm.

Defendant pleaded to a single-count accusation charging third-degree endangering the welfare of a child. N.J.S.A. 2C:24-4(a). The accusation charged that in November and December 1998, defendant engaged in sexual conduct that impaired or debauched the morals of a child under sixteen, specifically, a child who was then fifteen years old. At his plea hearing on May 5, 2000, defendant, then twenty-four, admitted that he had sexual intercourse with the victim. He admitted the child was fifteen, although he claimed he believed she was seventeen.

Defendant grounds his petition on an error in the waiver-of-indictment form, which he signed. The form correctly listed his charge as a violation of N.J.S.A. 2C:24-4(a), which is a second-degree or third-degree crime, depending on the circumstances. However, the waiver-of-indictment form mischaracterized defendant's violation of N.J.S.A. 2C:24-4(a) as a fourth-degree crime. Defendant argues that he believed he was pleading to a fourth-degree offense, and therefore received an illegal sentence.

Notwithstanding the error in the waiver-of-indictment form, the accusation, defendant's other plea forms, and his plea hearing made it abundantly clear that he was pleading to a third-degree offense. The general plea form correctly referred to the third-degree offense, noting the maximum five-year term. The "Additional Questions for Certain Sexual Offenses Committed on or After December 1, 1998" and "Additional Questions for Certain Sexual Offenses" forms advised defendant of Megan's Law and community supervision for life (CSL), although they did not expressly address the degree of the crime.

At the outset of the plea hearing, the prosecutor announced the terms of the plea agreement: defendant would plead to a third-degree endangering charge, and the State would recommend probation, conditioned on 364 days of incarceration. The prosecutor noted that Megan's Law applied. Defense counsel confirmed that Megan's Law and CSL applied, and defendant would need to submit to an evaluation at the Adult Diagnostic and Treatment Center at Avenel.

The court reviewed the terms of the plea agreement in detail with defendant, including the maximum five-year term and applicability of Megan's Law. The judge also confirmed that defendant wished to waive his right to have the matter presented to a grand jury. Defendant stated he understood the terms. The court accepted the plea, after finding defendant pleaded voluntarily and knowingly.

Defendant appeared for sentencing on October 25, 2000 before a different judge, who imposed a four-year probationary term, conditioned on time served, and subject to other probationary conditions. The judge warned defendant that if he violated probation, he could be resentenced to as much as a five-year term.

Defendant did not file a direct appeal. He later violated probation and was resentenced to a five-year term on November 29, 2001.1

The record reflects that in 2004, defendant contacted the Office of the Public Defender (OPD) seeking the appointment of counsel to assist him in filing a PCR petition. In June 2004, a deputy public defender filed a "Notice of Motion for Post Conviction Relief," which was unaccompanied by a verified petition. It stated that a brief would be filed at a later date. However, nothing was filed.

The record reflects correspondence to defendant in July 2004 and July 2005 from OPD enclosing various forms for filing the petition for PCR. The correspondence included information regarding a reimbursement form that defendant was required to complete to secure OPD's services. On July 20, 2005, OPD advised defendant by letter that it was closing his file, as it had not received a response from defendant. Defendant apparently contacted OPD again in late 2008 or early 2009, as it sent him a letter on January 7, 2009, providing essentially the same information it provided in its initial correspondence.

Defendant filed a pro se petition on July 27, 2010, asserting as grounds for relief, "I feel counsel didn't represent me properly." He stated, "I was forced to plea[d] guilty."2 Appointed counsel filed a supplementary brief arguing that defendant's waiver of indictment was ineffective; defendant did not knowingly plead to a third-degree crime, as he was unaware of the sentencing consequences; and the third-degree sentence was illegal because defendant waived indictment of only a fourth-degree offense. Counsel also argued that defendant's petition was not time-barred because defendant attempted to file a petition within five years of his conviction.

After a brief hearing at which defendant's counsel rested on his papers, the court denied PCR in a June 3, 2011 written opinion. The court determined that the petition was untimely under Rule 3:22-12, as it was filed more than five years after entry of the judgment of conviction. The court found that defendant failed to demonstrate excusable neglect, concluding that the record demonstrated "the Office of the Public Defender had closed defendant's file because he never followed through with his request for assistance." The court also found that defendant's petition was procedurally barred under Rule 3:22-4, because his argument regarding the infirmity in the waiver-of-indictment form could have been raised on direct appeal.

Notwithstanding the procedural bars to the petition, the court addressed the merits, and found them wanting, after applying the two-prong test articulated in Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (defendant must establish: (1) that his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment; and (2) that defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different).

The court concluded, "based on the totality of circumstances attendant to defendant's plea and sentencing, it is clear that the reference to defendant's crime being of the Fourth Degree in the Waiver of Indictment form was merely a technical error which in no way prejudiced or misled defendant." The court noted that defendant was fully aware of the third-degree nature of the crime to which he pleaded, based on the accusation, the plea forms, the plea colloquy, and defendant's sentencing hearing. For that reason, the court rejected the argument that the sentence was "illegal" simply because the waiver-of-indictment form mischaracterized the degree of crime.

On appeal, defendant presents the following points for our consideration:

POINT I

THE TRIAL COURT ERRED IN DENYING MR. SHERIDAN'S PETITION FOR POST-CONVICTION RELIEF ON PROCEDURAL GROUNDS.

A. The PCR court erred in finding that Mr. Sheridan's petition for PCR was time barred.

B. The PCR court erred in finding that Mr. Sheridan's petition for PCR was barred pursuant to Rule 3:22-4.

POINT II

THE PCR COURT ERRED IN DENYING MR. SHERIDAN'S PETITION FOR POST-CONVICTION RELIEF BASED ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT III

THE PCR COURT IMPROPERLY DENIED MR. SHERIDAN'S PETITION FOR POST-CONVICTION RELIEF WITHOUT CONDUCTING AN EVIDENTIARY HEARING IN THIS MATTER.

POINT IV

MR. SHERIDAN RECEIVED AN ILLEGAL SENTENCE AND HIS CLAIM IS NOT TIME BARRED.

We affirm, substantially for the reasons set forth in the trial court's thorough written opinion. We add the following brief comments.

We review the PCR judge's legal conclusions de novo. State v. Harris, 181 N.J.391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Where the 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. Id.at 421.

A petitioner is obliged to establish the right to relief by a preponderance of the credible evidence. State v. Preciose, 129 N.J.451, 459 (1992). The court must consider the petitioner's "contentions indulgently and view the facts asserted by him [or her] in the light most favorable to him [or her]." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J.199 (1999). However, "a petitioner must do more than make bald assertions that he [or she] was denied the effective assistance of counsel." Ibid. See alsoR.3:22-10(e)(2) (stating that a court shall not hold an evidentiary hearing if "the defendant's allegations are too vague, conclusory or speculative"). A petitioner must present facts "supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Cummings, supra, 321 N.J. Super.at 170.

Here, defendant's petition is unsupported by cognizable evidence, except the pro se petition in which defendant generally asserted that he was forced to plead guilty. Notwithstanding defendant's argument, there is no evidence, in the form of a certification or affidavit, that defendant was confused by the waiver-of-indictment form, or genuinely believed despite overwhelming evidence to the contrary that he was pleading to, and waiving indictment of, a fourth-degree offense. Counsel's brief is not evidence. SeeR.1:6-6; Gonzalez v. Ideal Tile Importing Co., 371 N.J. Super. 349, 358 (App. Div. 2004), aff'd, 184 N.J.415 (2005), cert. denied, 546 U.S. 1092, 126 S. Ct. 1042, 163 L. Ed. 2d 857 (2006). Moreover, although defendant argues that his failure to timely file his petition should be excused based on his difficulty in completing PCR forms while incarcerated, there is no certification from defendant to support this argument.

Affirmed.

1 The judgment of conviction for the resentencing was amended in May 2004 to correct the omission of jail credits in the 2001 judgment.

2 The petition is partly illegible. It states, "I was forced to plea[d] guilty because of [illegible] life."