STATE OF NEW JERSEY v. R.P.B.

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0093-18T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

R.P.B.,

Defendant-Appellant.
_________________________

Submitted November 18, 2019 – Decided December 13, 2019

Before Judges Sabatino and Geiger.

On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 06-10-
2344.

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

Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Monica Lucinda
do Outeiro, Assistant Prosecutor, of counsel and on the
brief).

PER CURIAM
Defendant R.P.B.1 appeals from the denial of his petition for post-

conviction relief (PCR) without an evidentiary hearing. We affirm in part and

remand in part.

In June 2006, defendant resided with his twelve-year-old son and two

other children ages eleven and ten. While residing with the children he acted as

their parent. Defendant failed to provide adequate food to the children and kept

the house in a filthy, unkempt condition. Allegations surfaced that he had

engaged in sexually assaulting and endangering the children and acting lewdly

in their presence.

A Monmouth County Grand Jury returned an indictment charging

defendant with four counts of second-degree endangering the welfare of a child,

N.J.S.A. 24-4(a) (counts one, two, six, and seven); two counts of second-degree

sexual assault, N.J.S.A. 2C:14-2(b) (counts three and four); and fourth-degree

lewdness, N.J.S.A. 2C:14-4(b)(1) (count five).

1
We use initials to identify defendant and the victims to protect the privacy of
the victims. R. 1:38-3(d)(10).
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2
On December 11, 2006, defendant entered into a plea agreement with the

State. During the plea hearing that day, the assistant prosecutor recited the terms

of the plea agreement on the record. In exchange for his guilty plea to counts

one, two and five, the State agreed to treat counts one and two as third-degree

offenses for sentencing purposes, and to recommend concurrent four-year flat

sentences on counts one and two and a concurrent flat one-year sentence on

count five. Defendant would be required to comply with Megan's Law and be

placed on Parole Supervision for Life (PSL). The remaining counts would be

dismissed. Trial counsel confirmed that the terms recited by the assistant

prosecutor were correct.

The plea form stated defendant would be subject to Megan's Law and PSL.

The Additional Questions for Certain Sexual Offenses plea form specifically

addressed the requirements of Megan's Law and PSL. With regard to Megan's

Law, the supplemental plea form asked defendant whether he understood the

following consequences of his plea: (1) he must register with certain public

agencies; (2) he must re-register no less than ten days before changing his

residence; (3) he could be charged with a fourth-degree crime and receive a

sentence of up to eighteen months if he fails to register or re-register; (4) he

could be required to verify his address with the appropriate law enforcement

A-0093-18T3
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agency every ninety days but no less than annually; (5) if he fails to verify his

address as required he could be charged with a fourth-degree crime and receive

a sentence of up to eighteen months; and (6) law enforcement, community

organizations, or the public at large may be notified of his release from

incarceration or presence in the community. Defendant's answered each

question, "yes" or "N/A."

As to PSL, the supplemental plea form asked the following questions:

4b. Parole Supervision for Life (only complete if the
offense occurred on or after January 14, 2004).

(1) Do you understand that if you are
pleading guilty to the crime of aggravated
sexual assault, sexual assault, aggravated
criminal sexual contact, kidnapping
pursuant to 2C:13-lc(2), endangering the
welfare of a child by engaging in sexual
conduct which would impair or debauch
the morals of a child pursuant to 2C:24-4a,
endangering the welfare of a child pursuant
to 2C:24-4b(3), luring or an attempt to
commit any of these offenses and the
offense occurred on or after January 14,
2004, the court, in addition to any other
sentence, will impose a special sentence of
parole supervision for life?

(2) Do you understand that being sentenced
to parole supervision for life means that
upon release from incarceration or
immediately upon imposition of a
suspended sentence you will be supervised

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by the Division of Parole for at least 15
years and will be subject to provisions and
conditions of parole, including conditions
appropriate to protect the public and foster
rehabilitation, such as, but not limited to,
counseling, and other restrictions which
may include restrictions on where you can
live, work, travel or persons you can
contact?

(3) Do you understand that if you violate a
condition of parole supervision for life,
your parole may be revoked and you can be
sent to prison for 12 to 18 months for each
revocation that occurs while you are being
supervised and that the prison term you
receive cannot be reduced by commutation
or work credits?

(4) Do you understand that if you violate a
condition of parole supervision for life and
you are indicted and convicted for that
violation, you will receive a sentence of
imprisonment of up to 18 months and that
the sentence you receive could be in
addition to any prison term you may
receive from the Parole Board for a
violation of parole supervision for life?

Defendant answered all four questions, "yes."

The trial court conducted a colloquy with defendant during which he

confirmed he understood the terms of the plea agreement as related by the

prosecutor. In answering questions posed by the court, defendant acknowledged

that his attorney had gone over all the pending charges with him and answered

A-0093-18T3
5
all his questions about the charges. He indicated he was satisfied with the legal

services rendered by his attorney.

Defendant acknowledged signing and initialing the standard plea form and

supplemental plea forms for sexual offenses. He acknowledged reading the plea

forms and going over them with his attorney. He confirmed that he understood

the plea forms and that his answers were "accurate, truthful and complete." He

confirmed understanding the constitutional rights he was waiving by pleading

guilty.

The trial court then asked the following question regarding PSL:

Q. You're going to be on parole supervision for life.
You're going to have to register as a sex offender.
There could be internet registration. Your travel could
be restricted and everything else has been gone over on
this document entitled additional questions for certain
sexual offenses. Do you understand that?

A. Yes.

Defendant acknowledged he entered into the plea agreement of his own

free will. He confirmed that neither the police, the prosecutor, nor his attorney

made any promises other than the terms of the plea agreement. Defendant did

not ask any questions of the court or trial counsel during the plea hearing.

The trial court then requested trial counsel to establish a factual basis for

defendant's plea. In response to counsel's questions, defendant admitted to

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residing with the three victims, all of whom were minors, and that he had the

power to parent them. He then admitted he failed to provide adequate food to

the children and kept the house in a filthy condition. Defendant also admitted

that he displayed his genitals to the children and struck his penis against their

clothing for his own sexual gratification. The court accepted defendant's guilty

plea.

Defendant contended he was addicted to Percocet at the time of the

offenses. When interviewed for the presentence report, defendant related he was

"unsure of what happened as he was under the influence." Defendant did not

pursue an intoxication defense.

On July 6, 2007, defendant appeared for sentencing. Trial counsel stated

that he had reviewed the presentence report with defendant and he found it to be

"factually accurate" with one clarification. Counsel advised that the presentence

report stated defendant said "his attorney gave a statement for him which he

really did not agree to." Counsel stated that when he discussed that language

with defendant, "[h]e indicated" he had "no idea where that came from."

Counsel also confirmed that he had discussed raising an intoxication defense

prior to the plea and earlier that day. Counsel reported that defendant "indicated

A-0093-18T3
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to [him] that in light of the plea offer given to [defendant] by the State, he did

not wish to pursue an intoxication defense." Defendant chose not to allocute.

Defendant was sentenced in accordance with the terms of the plea

agreement to an aggregate four-year flat term, appropriate fines and penalties,

required to comply with Megan's Law, and placed on PSL. He was awarded 307

days credit for time served and fifty-eight days of gap time.2 Defendant did not

appeal his conviction or sentence.

Defendant served his prison term and was released subject to Megan's Law

and PSL, which he violated on several occasions, resulting in further charges,

convictions, and incarceration.

In July 2016, defendant received a notarized letter from his son, recanting

his allegations against defendant. The letter stated, in pertinent part:

I would like to state that I am writing this letter
on my own free will, no one is forcing me. The purpose
of this letter is to hopefully keep my father, [R.P.B.]
from being incarcerated any longer. At the age of
[eleven] I made allegations to a detective and the
[S]tate that my father was sexually abusing me. These
allegations are false. Sadly and regretfully I lied in
order to be removed from my father[']s care and placed
with my uncle [J.B.]. I lied because my father was

2
The record does not disclose the date of defendant's release from prison but
after applying the jail credits and gap time, defendant would have maxed out on
his aggregate four-year term no later than July 5, 2010, without even considering
any additional credits earned while in prison.
A-0093-18T3
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abusing drugs and at the time he scared me while under
the influence. At the time he was not being a good
father. He would get angry more often and sometimes
hit me. Which just scared me more. But that is all he
is guilty of. He would never do anything sexual to me
or anyone else for that matter. While living in my
father[']s care things did not improve. He continued his
use of drugs and always arguing with his girlfriend. I
was not happy and felt as though I was not being heard.
So I made false allegations knowing [the Division of
Youth and Family Services] would have to remove me.
Yes I was young but I learned at a young age having
gone through the system so much that these lies would
have me removed from my father[']s care. At the time
however being so young, I didn't realize how severe the
consequences would be. He has spent most of his life
since incarcerated for a crime he did not commit. . . .
Having grown up I realize how much I need my dad and
how wrong I was to make such allegations against him.

In February 2017, defendant filed a pro se petition for PCR. He claimed

ineffective assistance of counsel, alleging trial counsel failed to listen to or argue

the facts pertaining to his case and "to reverse [the] plea agreement." Defendant

also alleged newly discovered evidence was received in July 2016. The petition

further alleged that defendant's "reason for accepting the plea offer was to

protect [his] girlfriend of [five] years at the time. She was threatening her life

if she did not get released soon." Defendant asserted that when he told this to

his trial counsel, "he did not want to hear about it."

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9
PCR counsel was appointed to represent defendant and submitted an

amended petition and supporting certification of defendant. Defendant claimed

trial counsel was ineffective because he failed to advise him of the penal and

collateral consequences of his plea. In his certification, defendant stated his trial

counsel told him the plea agreement "would finalize [his] legal matter in

Monmouth County and no other action would be taken as a result of [the] plea."

He further stated that trial counsel "refused to do any investigation into [his]

case even though [he] protested [his] innocence."

Defendant claimed he "did not want to take the plea as [he] did not

perform any criminal sexual acts toward the victims and only took the plea to

protect the victims and [his] girlfriend who was residing with [him] at the time."

He admitted, however, that he "was guilty of endangering the children for having

drugs in the home and for keeping a very dirty and unkempt home not suitable

for children."

Defendant stated his trial counsel "encouraged [him] to plead guilty as the

plea deal was to [his] benefit." Defendant indicated he pled guilty because he

was "misinformed that there was no other way to prove [he] had not committed

the alleged acts." He stated he filed his petition after receiving the letter from

his son in 2016, recanting the sexual assault allegations.

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Defendant requested the PCR court to relax the five-year time limit for

filing PCR petitions because "he had not been properly advised as to the

conditions he would face upon release and only now realizes their implications,"

and due to the newly discovered evidence set forth in his son's recantation letter.

Defendant also requested an evidentiary hearing, claiming he had presented

sufficient evidence to establish a prima facie case of ineffective assistance of

counsel.

The State countered that defendant's petition was time-barred and

defendant did not meet any of the exceptions to the time-bar. The State also

argued defendant was informed of the consequences of his plea by the plea forms

and the court. The State further argued defendant had not shown trial counsel

had failed to investigate. Finally, the State contended defendant had not

demonstrated it would have been reasonable to reject the plea deal and go to

trial. Therefore, the State contended defendant was not entitled to an evidentiary

hearing.

As to defendant's claim of newly discovered evidence, the State argued

defendant was not entitled to a new trial because a recantation letter written by

only one of the three victims ten years after the offenses would not alter the

outcome of the case.

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The PCR court issued a June 22, 2018 order and fifteen-page statement of

reasons denying PCR without an evidentiary hearing.

The judge first addressed relaxing the five-year time ban, noting that

"incomplete advice by counsel and ignorance of the law are not excusable

neglect warranting a relaxation of the five-year requirement." Thus, not being

informed of the consequences of Megan's Law and PSL "would not be grounds

to relax the five-year filing requirement." The judge also noted defendant only

received a four-year sentence and upon release was subject to the requirements

of Megan's Law and PSL. He therefore knew of the consequences of Megan's

Law and PSL for years prior to filing his petition in 2017. "Thus, there is no

excuse for defendant's neglect in adhering to the five-year filing requirement."

The judge next addressed relaxation of the time-bar due to newly

discovered evidence. The court concluded the newly discovered evidence did

not relate to defendant's claim of ineffective assistance of counsel during the

plea process. The judge "fail[ed] to see how a recantation letter written on June

29, 2016, almost ten years after defendant pled guilty, could possibly be relevant

to defense counsel's actions during the plea process a decade earlier." The judge

found "[i]t is not excusable neglect to wait nine years to file a petition . . . based

on counsel's actions during the plea process merely because a victim wrote a

A-0093-18T3
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recantation letter a decade later that is wholly irrelevant to defendant's grounds

for [PCR]." The judge found defendant failed to establish either excusable

neglect or fundamental injustice, and ruled the petition time-barred.

For the sake of completeness, the judge also considered the merits of the

petition. Defendant claimed trial counsel was ineffective by misadvising him

that the plea agreement would finalize the matter and because defendant "was

not accurately informed of the significant consequence of pleading guilty to this

crime."

The judge rejected defendant's claim that he was misadvised by counsel,

stating:

After defendant was sentenced under the terms of the
plea agreement, his case was finalized; defendant has
faced no subsequent criminal charges or other actions
for his crimes against [the victims]. While defendant is
subject to Megan's Law and [PSL], such restrictions
were a part of defendant's sentence and not additional
actions taken against him. Furthermore, while
defendant has faced other charges as a consequence of
his sentence to Megan's Law and [PSL], these are new
charges due to defendant's failure to comply with the
terms of Megan's Law and [PSL]. Such violations of
parole and other charges are not part of the current case.
Thus, defendant's counsel was accurate in advising
[him] that his plea agreement would finalize his case
and as such, this is not evidence that defendant's plea
counsel was ineffective. It is, rather, evidence that
defendant was ineffective in complying with the
provisions of Megan's Law and [PSL], which terms he

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expressly acknowledged by affixing his signature to the
plea documents.

As for defendant's allegation that his prior
counsel did not advise him of the consequences of his
plea, defendant was advised of the consequence of his
plea numerous times by the court before his sentencing,
both through the plea papers and during the plea
colloquy. The plea papers clearly lay out the
consequences of both Megan's Law and [PSL], and next
to each of these consequences, defendant circled "yes,"
indicating that he understood. Defendant then signed
the end of both plea forms. [The plea judge] went over
the forms with defendant in court and ensured that
defendant had reviewed the forms with counsel and
signed the forms of his own free will. [The plea judge]
also informed defendant that his sentence included
Megan's Law and [PSL] and explained to defendant
what that means, to which defendant indicated that he
understood. Thus, even if defendant's plea counsel did
not advise him of the restrictions that he would face
under Megan's Law and [PSL], defendant was still
aware of these restrictions because he had reviewed the
plea papers and was informed of these restrictions by
[the plea judge] during the plea proceeding. Thus,
defendant cannot satisfy the second prong of
Strickland,3 that the outcome of the proceeding would
have been different but for counsel's ineffectiveness,
because defendant knew the consequences of Megan's
Law and [PSL] in advance of his plea and still chose to
plead guilty anyway.

[(Citations omitted).]

3
Strickland v. Washington, 466 U.S. 668 (1984).
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The judge next addressed defendant's claim that trial counsel failed to

investigate, argue, and present the issues so as to properly represent him. The

judge noted that despite bearing the burden of proof by a preponderance of the

evidence, "defendant has provided no further explanation" of these alleged

failures. Notably, defendant did not specify what counsel failed to investigate.

Finally, the judge briefly addressed defendant's claim of newly discovered

evidence, consisting of a recantation letter by one of the victims. The judge

concluded the issue was not properly raised as part of an ineffective assistance

of counsel PCR claim and not properly before the court.

The judge concluded defendant failed to establish a prima facie case of

ineffective assistance of counsel and thus was not entitled to an evidentiary

hearing or PCR. This appeal followed.

On appeal, defendant raises the following points:

POINT I

DEFENDANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL BECAUSE HIS
ATTORNEY FAILED TO EXPLAIN THE MEANING
OF PAROLE SUPERVISION FOR LIFE. THIS
POST-CONVICTION RELIEF PETITION SHOULD
BE HEARD DESPITE ITS UNTIMELINESS AS IT IS
DUE TO EXCUSABLE NEGLECT AND ALSO THE
INTERESTS OF JUSTICE DEMAND IT.

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POINT II

DEFENDANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF POST-CONVICTION RELIEF
COUNSEL WHEN COUNSEL FAILED TO SPECIFY
THAT THE LETTER FROM C.B. REQUIRED A
HEARING FOR A NEW TRIAL BASED ON NEWLY
DISCOVERED EVIDENCE IN THE POST-
CONVICTION RELIEF PETITION.
ADDITIONALLY, THE COURT ERRED IN RULING
THAT IT HAD NO JURISDICTION TO CONSIDER
SUCH AN ISSUE AS PART OF A POST-
CONVICTION RELIEF PETITION.

II.

We affirm the denial of defendant's claim that trial counsel was ineffective

by failing to explain the meaning and consequences of being sentenced to

Megan's Law and PSL substantially for the reasons set forth in the PCR court's

June 22, 2018 written decision. We add the following comments.

Defendant's claim of ineffective assistance of trial counsel is time-barred.

He filed his petition in February 2017, more than nine years after his judgment

of conviction was entered on July 13, 2007. Defendant failed to file his petition

within five years of the entry of the judgment of conviction. It is thereby time-

barred under by Rule 3:22-12(a)(1), which requires a first petitions for PCR to

be filed within five years of entry of the judgment of conviction. Defendant has

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not shown excusable neglect for his woefully untimely filing or that enforcement

of the time bar as to his ineffective assistance of counsel claim "would result in

a fundamental injustice." R. 3:22-12(a)(1)(A).

For the sake of completeness, we too briefly address the merits of

defendant's ineffective assistance of counsel argument. Defendant's claim that

he was not informed of the meaning and consequences of Megan's Law and PSL

is belied by the plea forms and transcript of the plea hearing. Defendant

acknowledged that he read, signed, and understood the plea forms which

explained the requirements imposed by Megan's Law and PSL and the potential

for fourth-degree criminal charges and resulting incarceration for up to eighteen

months if convicted of violating those requirements.

Defendant's claim that he was misled regarding the finality of the charges

resulting from the plea agreement is also clearly without merit. Defendant was

not subjected to any additional charges or punishment for his conduct that led to

charges resolved through the plea agreement. His subsequent charges and

incarceration resulted from violating his requirements under Megan's Law or

PSL after he was released from prison. Defendant was not misled by trial

counsel.

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We likewise find no merit to defendant's unsupported allegation that trial

counsel failed to investigate, argue, and present unspecified issues to the trial

court so as to properly represent him. In order to establish the two elements of

an ineffective assistance of counsel claim, that are required by Strickland v.

Washington, 466 U.S. 668, 687 (1984) and State v. Fritz, 105 N.J. 42, 58 (1987)

(adopting the Strickland two-part test in New Jersey), a defendant "must do more

than make bald assertions that he was denied the effective assistance of counsel.

He must allege facts sufficient to demonstrate counsel's alleged substandard

performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).

"Thus, when a petitioner claims his trial attorney inadequately investigated his

case, he must assert the facts that an investigation would have revealed,

supported by affidavits or certifications based upon the personal knowledge of

the affiant or the person making the certification." Ibid. Similarly, if defendant

claims trial counsel failed to pursue certain defenses or motions, he must specify

those defenses and motions. Here, defendant has failed to provide such

certifications or affidavits setting forth any facts in support of his bald

assertions. For that reason, his argument is unavailing.

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Because defendant has failed to present a prima facie case of ineffective

assistance of counsel, we concur with the PCR court that defendant was not

entitled to an evidentiary hearing on these claims.

We next address defendant's claim that newly discovered evidence

warrants a new trial. Defendant bases his argument on the statements of his son.

Settled principles inform our analysis of defendant's arguments:

To meet the standard for a new trial based on newly
discovered evidence, defendant must show that the
evidence is 1) material, and not "merely" cumulative,
impeaching, or contradictory; 2) that the evidence was
discovered after completion of the trial and was "not
discoverable by reasonable diligence beforehand"; and
3) that the evidence "would probably change the jury's
verdict if a new trial were granted."

[State v. Ways, 180 N.J. 171, 187 (2004) (quoting State
v. Carter, 85 N.J. 300, 314 (1981)).]

Under the first criterion, a defendant must show the evidence "ha[s] some

bearing on the claims being advanced." Id. at 188 (quoting State v. Henries, 306 N.J. Super. 512, 531 (App. Div. 1997)). Thus, a court must evaluate "the

probable impact such evidence would have on a jury verdict." Id. at 189. Under

the second criterion, "the new evidence must have been discovered after

completion of trial and must not have been discoverable earlier through the

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exercise of reasonable diligence." Id. at 192 (citing Carter, 85 N.J. at 314). A

defendant must "act with reasonable dispatch in searching for evidence before

the start of the trial." Ibid. Under the third criterion, a defendant must show the

evidence "would probably change the jury's verdict if a new trial were granted."

Id. at 189 (quoting Carter, 85 N.J. at 314). "The power of the newly discovered

evidence to alter the verdict is the central issue . . . ." Id. at 191.

Motions for a new trial based on newly discovered evidence are "not

favored and should be granted with caution by a trial court since [they] disrupt[]

the judicial process." State v. Conway, 193 N.J. Super. 133, 171 (App. Div.

1984) (citing Haines, 20 N.J. at 443). Such motions are "addressed to the sound

discretion of the trial court, and its determination will not be reversed on appeal

unless there has been a clear abuse of that discretion." State v. Puchalski, 45 N.J. 97, 107 (1965) (quoting State v. Artis, 36 N.J. 538, 541 (1962)); accord,

State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000). That said, the PCR

court must address the merits of the application by applying the Carter criteria.

See Ways, 180 N.J. at 191 ("[T]he reviewing court must engage in a thorough,

fact-sensitive analysis to determine if the evidence would probably make a

difference to the jury.").

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Here, the PCR court did not apply the Carter criteria to determine if the

newly discovered evidence warranted a new trial. Instead, the PCR court

summarily determined the issue was not properly before it and denied the

petition without considering the merits. We are constrained to remand the issue

withdrawal of the plea based on newly discovered evidence for a decision on the

merits.

We leave it to the sound discretion of the PCR court to determine whether

to grant an evidentiary hearing and whether to require or permit amended or

supplemental submissions on the newly discovered evidence issue. We express

no opinion on the merits of this claim.

Affirmed in part and remanded in part. We do not retain jurisdiction.

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