STATEOF NEW JERSEY v. SHANON E. GOODEN

RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE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-2100-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

SHANON E. GOODEN,

     Defendant-Appellant.
____________________________

              Submitted January 23, 2018 – Decided March 1, 2018

              Before Judges Gilson and Mayer.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Accusation No.
              07-12-3920.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Alison Perrone, Designated
              Counsel, on the brief).

              Mary Eva Colalillo, Camden County Prosecutor,
              attorney for respondent (Linda A. Shashoua,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

        Defendant Shanon E. Gooden appeals from a December 1, 2016

order     denying    his   petition     for   post-conviction      relief    (PCR)
without an evidentiary hearing.             We affirm because the petition

was time-barred.

                                      I.

       In August 2007, defendant was charged with two counts of

second-degree sexual assault, 
N.J.S.A. 2C:14-2(b), and two counts

of third-degree endangering the welfare of a child, 
N.J.S.A. 2C:24-

4(a).    Those charges were based on allegations that defendant had

purposely exposed his penis to an eleven-year-old boy and a ten-

year-old girl.

       In December 2007, defendant pled guilty to one count of third-

degree endangering the welfare of a child.               Under a negotiated

plea agreement, the State agreed to recommend that defendant be

sentenced to four years in state prison and all other charges be

dismissed.

       At his plea hearing, defendant testified that he reviewed his

plea forms, which included forms explaining that he would be

subject to parole supervision for life, and that following his

sentence, he could be civilly committed under the Sexually Violent

Predator Act (SVPA), 
N.J.S.A. 30:4-27.24 to -27.38.                  Defendant

also acknowledged that he reviewed the plea forms with his counsel,

that    he   was   satisfied   with   his    counsel's   services,    that    he

understood the charge to which he was pleading guilty, and that

his plea was being given voluntarily.             Defendant then testified

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that he purposely exposed his penis to two children.               The trial

court    found    that    defendant's   plea   was   given    knowingly    and

voluntarily and accepted the plea.

       On March 28, 2008, defendant was sentenced in accordance with

the plea agreement to four years in state prison.                He was also

sentenced to restrictions under Megan's Law, 
N.J.S.A. 2C:7-1 to

-11.    At his sentencing, defendant was advised of his right to

appeal.        Defendant did not directly appeal his conviction or

sentence.

       On February 26, 2016, defendant, representing himself, filed

a petition for PCR.         He was assigned counsel and the PCR judge,

Judge Michele M. Fox, heard oral argument.

       On December 1, 2016, Judge Fox entered an order denying the

petition and issued a written opinion explaining the ruling. Judge

Fox first found that defendant's petition was time-barred under

Rule 3:22-12.      In that regard, Judge Fox noted that defendant was

sentenced in March 2008, but waited over eight years before filing

his PCR petition. Judge Fox also found that there was no excusable

neglect in defendant waiting beyond the five-year time limitation.

       Judge     Fox     also   analyzed    defendant's      allegations    of

ineffective assistance of counsel.          Defendant contended that his

trial counsel had been ineffective in failing to provide him with

discovery, failing to file a motion to suppress his statement,

                                        3                            A-2100-16T4
failing to file a motion for a Michaels hearing concerning the

reliability of the victims' statements,1 and failing to properly

advise him about parole supervision for life and civil commitments

under the SVPA.       Judge Fox analyzed each of these allegations and

found   that   none    of   them   presented   a   prima   facie   showing    of

ineffective assistance of counsel.             Judge Fox also found that

defendant was not entitled to an evidentiary hearing.

                                      II.

     On   this   appeal,     defendant     makes   two   arguments   which    he

articulates as follows:

           POINT ONE – THE TRIAL COURT ERRED IN
           CONCLUDING THAT DEFENDANT'S PETITION FOR POST-
           CONVICTION RELIEF WAS TIME BARRED BECAUSE
           DEFENDANT'S FAILURE TO FILE HIS PETITION
           WITHIN FIVE YEARS OF HIS CONVICTION WAS DUE
           TO EXCUSABLE NEGLECT AND ENFORCEMENT OF THE
           TIME BAR WOULD RESULT IN A FUNDAMENTAL
           INJUSTICE

           POINT TWO – DEFENDANT IS ENTITLED TO AN
           EVIDENTIARY HEARING ON HIS CLAIM THAT HIS PLEA
           COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF
           COUNSEL




1
  In State v. Michaels, 
136 N.J. 299 (1994), our Supreme Court
held that if a defendant establishes sufficient evidence that a
child witness is unreliable, or that investigators used coercive
or suggestive tactics when interviewing the child witness, the
court should hold a hearing and the State would need to prove the
reliability of the child witness' statement by clear and convincing
evidence. Id. at 303.

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      Having reviewed defendant's arguments in light of the record,

we affirm substantially for the reasons explained by Judge Fox in

her   well-reasoned   and   comprehensive   thirty-five-page   written

opinion.   Judge Fox's finding that defendant made no showing of

excusable neglect is supported by substantial credible evidence

in the record.    Just as importantly, Judge Fox's finding that

defendant made no showing that enforcement of the time bar would

result in a fundamental injustice is also supported by substantial

credible evidence in the record.       See R. 3:22-12(a)(1)(A); State

v. Goodwin, 
173 N.J. 583, 594 (2002); State v. Norman, 
405 N.J.

Super. 149, 159 (App. Div. 2009).

      Affirmed.




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