STATE OF NEW JERSEY v. JOSEPH DAVIS

NOT FOR PUBLICATION WITHOUT THE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-2039-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JOSEPH DAVIS, a/k/a ISAAC
BARLOW, ISSAIC C. BARLOW,
COREY PERSON, and CHIN,

     Defendant-Appellant.
______________________________

              Submitted April 17, 2018 – Decided May 24, 2018

              Before Judges Reisner and Hoffman.

              On appeal from Superior Court of New Jersey,
              Law Division, Mercer County, Indictment No.
              95-07-0790.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Jamie P. Clouser, Designated
              Counsel, on the brief).

              Angelo J. Onofri, Mercer County Prosecutor,
              attorney for respondent (Laura C. Sunyak,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM
     Defendant appeals from a December 6, 2016 Law Division order

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

evidentiary hearing.         Defendant argues his plea counsel rendered

ineffective assistance of counsel by failing to explain to him the

elements of the charges against him, thereby pressuring him to

accept guilty pleas.          Defendant further argues his plea counsel

provided ineffective assistance in failing to file a suppression

motion.      Finally, defendant argues that Rule 3:22-12 should not

apply   to    bar   his    claim   as   untimely   because    he       sufficiently

established excusable neglect.           We affirm.

                                         I

     On December 9, 1993, defendant pled guilty to an accusation

charging     him    with    third-degree     possession      of    a     controlled

dangerous substance (CDS) with intent to distribute.                    In exchange

for defendant's guilty plea, the State recommended a sentence of

probation and imposition of a fine.            On May 10, 1994, the trial

judge sentenced defendant to a three-year probationary term, 100

hours of community service, and forfeiture of $310.

     In July 1995, a grand jury returned an indictment charging

defendant with: (1) third-degree possession of CDS; (2) second-

degree possession of CDS with intent to distribute; and (3) third-

degree possession of CDS with intent to distribute on or near

school property.           In December 1995, a grand jury returned an

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indictment charging defendant with: (1) third-degree possession

of   CDS;       (2)   third-degree     possession    of    CDS   with   intent    to

distribute; and (3) third-degree possession of CDS with intent to

distribute on or near school property.

      On February 13, 1996, defendant pled guilty to the July and

December charges for third-degree possession of CDS with intent

to distribute on or near school property.                   In exchange for his

plea, the State recommended concurrent four year prison terms with

twenty-one months minimum parole ineligibility.                  On May 2, 1997,

the trial judge sentenced defendant in accordance with his plea

agreement as well as for his violation of parole.                       Defendant

subsequently appealed his sentence, and we affirmed.

         In      January   2008,   a   federal   court      sentenced   defendant

following his conviction of numerous non-violent CDS offenses.

Because         defendant's   prior     convictions       constituted   predicate

offenses, the court sentenced him to life                    in prison without

possibility of parole.

      On April 13, 2014, defendant filed the PCR petition under

review      —    seventeen    years    after   his    conviction    —   asserting

ineffective assistance of plea counsel and excusable neglect.                     On

December 6, 2016, following oral argument, the PCR judge rendered

an oral decision denying the petition on procedural and substantive

grounds; to wit: the judge found defendant's petition procedurally

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time barred under Rule 3:22-12, and further found defendant failed

to present a prima facie claim of ineffective assistance of

counsel.    This appeal followed.

                                    II

       Defendant raises the following arguments on appeal:

            POINT I

            THE PCR COURT ERRED BY NOT FINDING THAT
            PETITIONER HAD ALLEGED DEFICIENT PLEA COUNSEL
            PERFORMANCE OR AN INVOLUNTARY PLEA[.]

              A. PLEA COUNSELS FOR PETITIONER NEVER
                 EXPLAINED THE BASIC NATURE OF THE CHARGES
                 HE WAS FACING — NOR DID THE COURT OR THE
                 CHARGING PAPERWORK[.]

              B. PETITIONER'S CLAIM OF INNOCENCE IS
                 SUPPORTED BY PLAUSIBLE FACTS AND THE
                 DECEMBER    3,  1993   PLEA   HEARING
                 TRANSCRIPT[.]

              C. THE DEFECTIVE FACTUAL BASIS ELICITED FROM
                 PETITIONER   AT   HIS   PLEA   ALLOCUTION
                 BOLSTERS HIS ARGUMENT THAT PLEA COUNSELS
                 WERE INEFFECTIVE[.]

            POINT II

            THE PCR COURT ERRED TO THE EXTENT IT FOUND
            THAT PETITIONER HAD NOT MADE A SHOWING OF
            PREJUDICE UNDER STRICKLAND V. WASHINGTON[.]1

            POINT III

            PETITIONER'S PLEA ATTORNEYS WERE ADDITIONALLY
            INEFFECTIVE FOR NOT DISCUSSING THE STRENGTHS
            AND WEAKNESSES OF HIS CASE AND FOR NOT FILING


1
    
466 U.S. 668 (1984).

                                    4                        A-2039-16T4
             A SUPPRESSION MOTION.   THIS IS EVIDENCED BY
             THE PLEA COLLOQUY FOR THE FIRST CHARGE[.]

             POINT IV

             IT WAS ERRONEOUS FOR THE PCR COURT TO DISMISS
             THE PETITION AS TIME-BARRED IN THE ABSENCE OF
             AN EVIDENTIARY HEARING THAT WOULD DEMONSTRATE
             THE INJUSTICE BEING SUFFERED BY PETITIONER[.]

      After carefully considering the record and the briefs, we

conclude defendant's arguments lack sufficient merit to warrant

discussion in a written opinion.          R. 2:11-3(e)(2).      We affirm

substantially for the reasons expressed by the PCR judge in her

oral opinion.      We add the following comments.

      A defendant must bring a PCR petition within five years of

judgment or sentence, unless the petition alleges that the delay

was due to defendant's excusable neglect and there is a "reasonable

probability" that a "fundamental injustice" would result from the

time bar if the assertions within the petition were true.                  R.

3:22-12(a)(1).     Rule 1:1-2(a) also permits the court to disregard

the   time   bar   when   defendant   demonstrates   an   injustice   by   a

preponderance of the credible evidence.         State v. Mitchell, 
126 N.J. 565, 579 (1992).       However, the Rule 3:22-12 time bar should

be relaxed "only under exceptional circumstances," and the court

should take into account "the extent and cause of the delay, the

prejudice to the State, and the importance of the petitioner's

claim" when making this determination.       State v. Goodwin, 173 N.J.

                                      5                           A-2039-16T4
583, 594 (2002) (citation and internal quotation marks omitted).

Additionally, a defendant "is generally barred from presenting a

claim on PCR that could have been raised at trial or on direct

appeal, [Rule] 3:22-4(a), or that has been previously litigated,

[Rule] 3:22-5." State v. Nash, 
212 N.J. 518, 546 (2013) (footnotes

omitted).

     Here, the PCR judge correctly found defendant's PCR petition

was procedurally and substantively barred. The trial court imposed

defendant's sentence in 1996, but defendant did not file his PCR

petition until April 2014 — seventeen years after his sentencing.

The PCR judge also correctly noted defendant failed to meet his

burden in establishing excusable neglect.

     However, even if not procedurally barred, defendant failed

to establish a prima facie case of ineffective assistance of

counsel.    In order to establish an ineffective assistance claim,

a defendant is required to demonstrate counsel's performance was

deficient, and the deficiency prejudiced his right to a fair trial.

Strickland, 
466 U.S.  at 687; State v. Fritz, 
105 N.J. 42, 58

(1987).

     The record does not support defendant's contention that his

plea counsel were ineffective and violated his constitutional

rights.    Defendant argues if he understood the elements of "intent

to distribute," he would never have pled guilty, but rather would

                                  6                          A-2039-16T4
have mounted a defense and proceeded to trial.            However, as the

PCR judge noted, defendant provided adequate factual bases for his

pleas and demonstrated he understood the nature of the charges

against him.   Therefore, plea counsel did not act unreasonably in

allowing defendant to accept the then-favorable plea offers.

     Because the PCR judge correctly found defendant's petition

was procedurally and substantively barred, and defendant is unable

to   demonstrate   a   reasonable       likelihood   of   meeting    either

Strickland prong, we conclude PCR was properly denied without an

evidentiary hearing.

     Affirmed.




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