STATE OF NEW JERSEY v. VERNON SMITH

NOT FOR PUBLICATION WITHOUT THE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-1060-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

VERNON SMITH,

     Defendant-Appellant.
____________________________

              Submitted February 13, 2018 – Decided March 16, 2018

              Before Judges Hoffman and Gilson.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Indictment No.
              05-12-2254.

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

              Christopher J. Gramiccioni, Monmouth County
              Prosecutor, attorney for respondent (Lisa
              Sarnoff Gochman, of counsel and on the brief).

PER CURIAM

        Defendant Vernon Smith appeals from an August 31, 2016 order

denying his petition for post-conviction relief (PCR), without an

evidentiary hearing.          We affirm because defendant's petition was
time-barred under Rule 3:22-12(a)(1) and is otherwise without

merit.

     Defendant was indicted for ten crimes related to two separate

armed    robberies.    The   counts   were    severed   and   he   was   tried

separately on each of the robberies.          This appeal relates to one

of the robberies. The evidence at trial established that defendant

and a companion encountered a group of young men drinking beer in

a cemetery.     Defendant pulled out a gun and demanded money from

one of the young men.      The man smacked the gun away, and defendant

shot him in the leg.    Defendant then ran away.

     Several weeks after the shooting, the police interviewed

defendant on an unrelated matter and he confessed to shooting the

man as part of a robbery. Defendant also gave a written statement.

At trial, however, defendant testified and told a different story.

He claimed that he thought the man was reaching for something so

he took out his gun and shot him.

     The jury convicted defendant of first-degree armed robbery,


N.J.S.A. 2C:15-1; third-degree aggravated assault with a deadly

weapon, 
N.J.S.A. 2C:12-1(b)(2); third-degree aggravated assault,


N.J.S.A. 2C:12-1(b)(7); second-degree possession of a weapon for

an   unlawful   purpose,     
N.J.S.A.     2C:39-4(a);   and    third-degree

unlawful possession of a weapon, 
N.J.S.A. 2C:39-5(b).              In January

2007, defendant was sentenced.            His convictions for aggravated

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assaults and possession of a weapon for an unlawful purpose were

merged    into    the   conviction    for     first-degree     armed    robbery.

Defendant was then sentenced to sixteen years in prison subject

to the No Early Release Act (NERA), 
N.J.S.A. 2C:43-7.2.                Defendant

also was sentenced to a concurrent five years in prison on the

conviction for unlawful possession of a weapon.

     On direct appeal, we affirmed defendant's convictions and

sentence. State v. Smith, No. A-3982-06 (App. Div. Mar. 26, 2009).

     On January 30, 2015, defendant, who was self-represented,

filed a petition for PCR.         He was assigned counsel, and counsel

filed a supplemental brief.       The PCR judge, Judge Joseph W. Oxley,

heard oral argument, and on August 31, 2016, he entered an order

and sixteen-page written opinion denying defendant's petition.

     In his opinion, Judge Oxley summarized the well-established

law governing PCR petitions.         He then analyzed each of defendant's

arguments.       He found that defendant's petition was time-barred

under    Rule    3:22-12(a)(1),   and       that   defendant   had     not     shown

excusable neglect for the delay in filing the petition.                  In that

regard, Judge Oxley pointed out that defendant contended that he

had no knowledge of the five-year time limit for filing a PCR

because he had not been informed of that limitation by his counsel

or the sentencing court.          Judge Oxley, however, cited to the

established principle that ignorance of the law does not establish

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excusable neglect.      See State v. Murray, 
162 N.J. 240, 246 (2000);

State v. Merola, 
365 N.J. Super. 203, 218 (App. Div. 2002).               Judge

Oxley also found that enforcement of the procedural time bar would

not result in a fundamental injustice.              R. 3:22-4(a)(2); State v.

Reevey, 
417 N.J. Super. 134, 153 (App. Div. 2010), certif. denied,


206 N.J. 64 (2011).

       Judge Oxley then evaluated defendant's claims of ineffective

assistance of counsel on the merits.               He found that those claims

did not satisfy either prong of the Strickland test governing

claims   of    ineffective    assistance      of    counsel.   Strickland      v.

Washington, 
466 U.S. 668, 687 (1984); see also State v. Fritz, 
105 N.J.   42,    58   (1987)   (adopting   the    two-part    Strickland    test).

Finally, Judge Oxley found that defendant had failed to establish

a prima facie claim in support of his allegations of ineffective

assistance of counsel and, therefore, he was not entitled to an

evidentiary hearing.         State v. Bringhurst, 
401 N.J. Super. 421,

436-37 (App. Div. 2008).

       On this appeal, defendant presents three arguments for our

consideration:

              POINT I – THE ORDER DENYING POST-CONVICTION
              RELIEF SHOULD BE REVERSED AND THE CASE
              REMANDED FOR A FULL EVIDENTIARY HEARING
              BECAUSE THE DEFENDANT MADE A PRIMA FACIE
              SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL
              UNDER THE STRICKLAND/FRITZ TEST.


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          POINT II – THE PCR COURT'S RULING THAT THE
          DEFENDANT'S   PETITION   FOR   POST-CONVICTION
          RELIEF WAS PROCEDURALLY BARRED BY THE FIVE-
          YEAR TIME BAR OF R. 3:22-12 WAS CONTRARY TO
          THE CRITERIA CONTROLLING THE EXCUSABLE NEGLECT
          EXCEPTION.

          POINT III – THE PCR COURT ERRED BY NOT GRANTING
          AN EVIDENTIARY HEARING.

     Having reviewed the record in light of defendant's arguments

and the law, we conclude that defendant's contentions are without

sufficient merit to warrant discussion in a written opinion.       R.

2:11-3(e)(2).    We affirm substantially for the reasons explained

by Judge Oxley in his well-reasoned opinion.

     Affirmed.




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