STATE OF NEW JERSEY v. ALSHARICK KING

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NOT FOR PUBLICATION WITHOUT THE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.

ALSHARICK KING,

Defendant-Appellant.

___________________________________________

February 26, 2016

Submitted January 26, 2016 Decided

 
Before Judges St. John and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Accusation No. 99-10-1246.

Joseph E. Krakora, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Alsharick King appeals from the July 18, 2014 order denying his petition for post-conviction relief (PCR) after a limited evidentiary hearing. We affirm.

On June 24, 1999, defendant was charged by accusation with first-degree aggravated assault, N.J.S.A. 2C:14-2(a), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). On October 12, 1999, defendant pled guilty pursuant to a negotiated plea agreement to the third-degree endangering count.

The plea form provided that the State would recommend a sentence of 364 days in county jail. A supplemental form entitled Additional Questions for Certain Sexual Offenses indicated that "the Court, in addition to any other sentence, will impose a special sentence of community supervision for life[.]"

On August 2, 2000, defendant was sentenced to a three-year period of probation, subject to Megan's Law registration and supervision for life, along with the appropriate fines and penalties. No appeal was taken from defendant's conviction and sentence. On February 20, 2003, defendant's probation was terminated and he was sentenced to a five-year prison term.

Ten years later, on March 14, 2013, defendant filed a pro se petition for PCR, claiming that in 1999 he wanted to go to trial but his plea counsel did not. He also claimed that he was never told he would have to register as a sex offender and was not advised of the consequences of community supervision for life. Judge Verna G. Leath assigned counsel and, after hearing oral argument, ordered an evidentiary hearing on the limited issue of whether defendant had been advised of the consequences of his plea.

On June 18, 2014, Judge Leath heard testimony from defendant's plea counsel. He had no independent recollection of his representation of defendant, but reviewed the charging accusation, the plea agreement, the plea and sentencing transcripts, and defendant's PCR petition. Counsel explained that his practice was to go through the questions on the plea form and circle the responses himself in order to ensure that the answers were the client's, and that the client understood the nature of the plea and the potential exposure.

Defendant testified that he has two children and, because of his status as a sex offender, he is not allowed to live with them or be alone with them. He claimed that plea counsel did not explain what community supervision for life entailed, and had he known of the restrictions, he would not have pled guilty.

On July 18, 2014, Judge Leath read a comprehensive decision into the record denying defendant's petition. The judge rejected defendant's argument that his petition was not time-barred pursuant to Rule 3:22-12(a)(1) because the five-year limitation should be calculated from 2006, when defendant first learned that he could not reside with his children. She found defendant had failed to establish excusable neglect. Then, addressing the merits of defendant's petition, Judge Leath found

Petitioner unequivocally accepted the negotiated plea agreement and pled guilty. The plea transcript is clear that the petitioner entered the plea with the advice of counsel and that he knowingly and voluntarily waived his right to trial and to an indictment by grand jury. The plea transcript is also clear that the judge informed the petitioner about the penal consequences of the petitioner's plea, specifically community supervision for life and Megan's Law registration requirements. Petitioner under oath affirmed that he was entering into the plea knowingly and willingly and that he understood the consequences of his plea including community supervision for life.

On appeal, defendant raises the following points

point i

post-conviction relief should be granted and the defendant's conviction reversed because trial counsel was deficient by not providing advice about the consequences resulting from megan's law and community supervision for life (CSL), in violation of the united states and new jersey constitutions.

point ii

because trial counsel did not conduct an adequate investigation by failing to contact key defense witnesses and obtaining the accuser's medical records, the defendant's case should be remanded to the pcr court for an evidentiary hearing.

point iii

the pcr court's ruling that the defendant's petition for post-conviction relief was procedurally barred by the five-year time bar of [rule] 3:22-12 was contrary to the criteria controlling the excusable neglect exception.

We review ineffective assistance of counsel claims de novo. State v. Harris, 181 N.J. 391, 419 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). A petition for PCR must be filed no later than "5 years after the date of entry pursuant to Rule 3:21-5 of the judgment of conviction that is being challenged . . . ." R. 3:22-12(a)(l). The time-bar may be relaxed if defendant establishes that the delay "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." Ibid.

Excusable neglect requires more than simply providing a plausible explanation for a failure to file a timely PCR petition. To determine whether a defendant has asserted a sufficient basis for relaxing the Rule's time restraints, we consider "the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an '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)).

Defendant was sentenced on August 2, 2000 and did not file for PCR until March 2013. We agree with Judge Leath that there is no basis for relaxing the time-bar rule, and we affirm the order denying PCR substantially for the reasons contained in her thoughtful and thorough oral decision of July 18, 2014.

Affirmed.