STATE OF NEW JERSEY v. JEROME PEED

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                        NOT FOR PUBLICATION WITHOUT THE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-3636-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JEROME PEED, a/k/a JERRY PEED,

     Defendant-Appellant.
__________________________________

              Submitted October 31, 2017 – Decided January 26, 2018

              Before Judges Sumners and Moynihan.

              On appeal from Superior Court of New Jersey,
              Law Division, Cumberland County, Indictment
              No. 02-07-0613 and 13-07-0581.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Brian D. Driscoll, Designated
              Counsel, on the brief).

              Jennifer   Webb-McRae,    Cumberland   County
              Prosecutor, attorney for respondent (Danielle
              R. Pennino, Assistant Prosecutor, of counsel
              and on the brief).

PER CURIAM

        Defendant Jerome Peed appeals from an order denying his

petition for post-conviction relief (PCR) without an evidentiary
hearing.    We affirm because defendant's petition was untimely

filed.

     Defendant's    petition     arises    from        his     April    15,     2004

conviction by a jury for second-degree endangering the welfare of

a child.   The jury found him not guilty of five sexual assault

charges.   We detailed the facts underlying the conviction when we

denied his direct appeal, and need not repeat them here.                       State

v. J.P., No. A-6211-03, (App. Div. June 20, 2006).

     After serving his five-year prison sentence without parole

eligibility, defendant ran afoul of the law again in July 2013,

when he was indicted on four counts of fourth-degree violation of

the conditions of community supervision for life. About six months

later, in accord with his plea agreement, defendant pled guilty

to two of the counts, with the other two counts being dismissed,

and he was sentenced to a concurrent prison term of 270 days.

     Seeking to terminate his community supervision for life,

defendant filed a pro se PCR petition on April 24, 2014.                         The

petition alleged the endangering conviction was the result of

prosecutorial    misconduct     in    tampering       with   the     jury     during

deliberations.     After defendant was assigned PCR counsel, the

petition   was   supplemented    to    allege     a    claim    of     ineffective

assistance of counsel.    Pertinent to the issues raised before us,

defendant contended neither trial counsel nor appellate counsel

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challenged the trial court's failure to instruct the jury that

defendant could only be convicted of endangering if it found him

guilty of one of the five sexual assault charges and if it found

that he had assumed the responsibility to care for the minor

victim.     Since the jury found him not guilty of those sexual

assault charges, defendant maintains his conviction should be

reversed and a judgment of acquittal should be entered because

there was no factual or legal basis to support the guilty verdict

for endangering.

     Defendant subsequently filed a motion to compel interrogation

of the jury to substantiate his prosecutorial misconduct claim.

The motion was supported by a certification from defendant's

brother, Vincent, stating that while he was on a bus, a woman

mistook him for defendant and told him she was a member of the

jury that found him guilty.       She added that the jury had planned

to find him innocent until the prosecutor came into the jury room

during    deliberations   and   told   the   jury   that   it   had   to   find

defendant guilty of some offense.          Vincent further claimed:

            At first[,] I didn't believe that she was
            actually a member of the jury; however several
            years later[,] [the woman] and I became co-
            workers.   My brother saw a picture of [the
            woman] and instantly recognized her as a
            member of the jury that convicted him.




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The certification did not provide the       dates Vincent had the

conversations with the alleged juror and his brother.       The State

opposed, submitting the trial prosecutor's certification that he

has "never spoken with any jurors before, during, or after any

trials," and "never entered [into] a jury deliberation room to

inform jurors that they must find [an] individual guilty."

       The PCR court denied the motion, stating in an oral decision

that there was "no credible evidence to support that allegation,

that would cause the [c]ourt to do the extraordinary of bringing

a jury back [twelve] years later, interrogating them about conduct

that is specifically denied by the [prosecutor] accused of doing

it, by [certification] subjecting that [prosecutor] to [p]erjury."

The court also found it remarkable that no juror brought the

alleged incident to the trial judge's attention as required by the

jury instructions.

       Five months later, following argument, the court entered an

order denying PCR without an evidentiary hearing.      In its oral

opinion, the court determined the petition was procedurally barred

as untimely because it was filed ten years1 after defendant's

endangering conviction, which is well beyond the five-year time

limit for filing a PCR petition.      The court further found there



1
    The court misspoke by stating eleven or twelve years.

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was no manifest injustice to relax the rule's time limitations as

defendant's allegation of prosecutorial misconduct was "shocking"

and lacked any credibility to change the result of defendant's

conviction.     Reiterating the credibility assessment it made in

denying defendant's motion to compel the interrogation of the

jury, the court explained: the juror confronted a man she thought

she voted to convict of a sex crime, the juror later worked with

defendant's brother, the trial court's procedure of sequestering

the jury during its deliberations did not prevent the prosecutor's

access to the jury, and the failure of any other juror to complain

about the prosecutor's behavior.

     The court likewise rejected defendant's claim of ineffective

assistance of trial counsel and appellate counsel regarding the

jury instruction on endangering because it was untimely raised ten

years after his conviction.    The court found there was no proof

of manifest injustice to allow an extension of the time to make

the claim because looking at the instructions as a whole they were

not faulty, and any changes as defendant contends would not have

altered the outcome.      Even assuming the jury instruction was

faulty, the court determined it would not have affected the outcome

of the trial.   The court added that "some" of the jury instruction

issues were rejected on direct appeal, and therefore, it could not

review them in a PCR petition.

                                 5                          A-3636-15T3
     Defendant    presents    the   following   arguments   for   our

consideration:

          POINT I

          THE COURT ERRED IN FINDING THE PETITION FOR
          POST[-]CONVICTION RELIEF BARRED BY THE TIME
          LIMITS OF [Rule 3:22-12(a)].

          POINT II

          THE COURT ERRED IN FINDING THAT THE CLAIM OF
          IMPROPER JURY INSTRUCTION ON COUNT SEVEN HAD
          PREVIOUSLY BEEN RAISED ON APPEAL.

          POINT III

          THE COURT ERRED IN DENYING AN EVIDENCE HEARING
          AND IN DENYING THE PETITION FOR POST[-]
          CONVICTION RELIEF.


     Having reviewed the record on appeal, we agree with the

argument in Point II that the jury instruction contention was not

raised on direct appeal and thus should not have been rejected by

the court.   Nonetheless, we agree substantially for the reasons

expressed in the court's oral decision that defendant's petition

should be dismissed without an evidentiary hearing because it was

untimely filed.     We add the following comments.

     To demonstrate ineffective assistance of counsel, a defendant

must satisfy the two-part Strickland test by demonstrating that

"counsel's performance was deficient," that is, "counsel made

errors so serious that counsel was not functioning as the 'counsel'


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guaranteed [to] the defendant by the Sixth Amendment," and "there

is a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Strickland v. Washington, 
466 U.S. 668, 687, 694 (1984); accord

State v. Fritz, 
105 N.J. 42, 58 (1987).

     The mere raising of a claim for PCR does not entitle a

defendant to an evidentiary hearing.           State v. Cummings, 
321 N.J.

Super. 154, 170 (1999).      A court reviewing a PCR petition based

on claims of ineffective assistance has the discretion to grant

an evidentiary hearing only if a defendant establishes a prima

facie showing in support of the requested relief.                    State v.

Preciose, 
129 N.J. 451, 462 (1992).          The court should only conduct

a hearing if there are disputed issues as to material facts

regarding entitlement to PCR that cannot be resolved based on the

existing     record   supported   by       "specific   facts   and   evidence

supporting his allegations."      State v. Porter, 
216 N.J. 343, 354-

55 (2013).

     In order to establish a prima facie claim, a defendant's

petition must satisfy the time limits for filing a claim.                  See

State v. Echols, 
199 N.J. 344, 357 (2009).              Rule 3:22-12(a)(1)

provides that a defendant's first petition for PCR shall be filed

no more than five years after the entry of the judgment of

conviction.     However, Rule 3:22-12(a)(1)(A) allows a court to

                                       7                              A-3636-15T3
relax the five-year time bar if the petition alleges facts showing

the filing was untimely due to defendant's excusable neglect and

there is a reasonable probability that, if defendant's factual

assertions were found to be true, enforcement of the time bar

would result in a fundamental injustice.

     "The    concept   of     excusable    neglect   encompasses   more   than

simply providing a plausible explanation for a failure to file a

timely PCR petition."         State v. Norman, 
405 N.J. Super. 149, 159

(App. Div. 2009).      A defendant's lack of sophistication in the law

does not relax the time-bar.          State v. Murray, 
162 N.J. 240, 246

(2000).   If the petitioner fails to allege sufficient facts, this

rule bars the claim.         State v. Mitchell, 
126 N.J. 565, 576 (1992).

     Here, the judgment of conviction was entered on April 15,

2004, and defendant's first and only PCR was filed ten years later

on April 24, 2014.           Defendant asserts he established excusable

neglect through Vincent's certification, which the PCR court did

not address.    We disagree.       The certification sets forth no dates

or time frame when the juror told Vincent, or when Vincent told

defendant,    about    the    prosecutor's    alleged   misconduct.       Thus,

defendant fails to substantiate when he should have filed his PCR

claim of prosecutorial misconduct, which is necessary to establish

it was timely filed.           As for the ineffective assistance claim

related to the jury instructions, it arose during the trial and

                                       8                              A-3636-15T3
the time for filing tolled upon defendant's conviction.          And

defendant offers no excusable neglect for not raising the claim

within five years of his conviction.

     Since defendant has not established excusable neglect for

filing an untimely PCR petition, we need not address the merits

of his claims to determine whether enforcement of the time bar

would result in a fundamental injustice.   See R. 3:22-12(a)(1)(A).

Accordingly, the petition is procedurally barred as untimely.

     Affirmed.




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