STATE OF NEW JERSEY v. KAVON A. COLEMAN

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                                NOT FOR PUBLICATION WITHOUT THE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-0274-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

KAVON A. COLEMAN,
a/k/a KAVON A.
POWELL-COLEMAN,

     Defendant-Appellant.
________________________

                    Submitted October 23, 2019 - Decided November 1, 2019

                    Before Judges Gooden Brown and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Ocean County, Indictment No. 07-10-1753.

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

                    Bradley D. Billhimer, Ocean County Prosecutor,
                    attorney for respondent (Samuel Marzarella, Chief
                    Appellate Attorney, of counsel; Cheryl L. Hammel,
                    Assistant Prosecutor, on the brief).
PER CURIAM

       Defendant Kavon A. Powell-Coleman appeals from a June 12, 2018 order

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

hearing. We affirm for the reasons expressed in the thorough and well -written

opinion of Judge Guy P. Ryan.

       In 2007, an Ocean County grand jury indicted defendant of: second-degree

sexual assault,  N.J.S.A. 2C:14-2(c)(1), count one; third-degree endangering the

welfare of a child,  N.J.S.A. 2C:24-4(a), counts two and four; and fourth-degree

sexual contact,  N.J.S.A. 2C:14-3(b), count three. On May 5, 2009, defendant

entered into a plea agreement and pled guilty to count two in exchange for the

dismissal of the remaining charges. On September 11, 2009, the court sentenced

defendant in accordance with the plea agreement to 491 days of incarceration ,

which was the time he served in the Ocean County jail, parole supervision for

life (PSL), and Megan's Law registration, 1 and required defendant to pay

penalties and fines, and provide DNA samples.

       Defendant did not appeal from his conviction or seek to retract his guilty

plea. Instead, in August 2017, nearly eight years later, he filed a PCR petition.

He argued there was excusable neglect for filing his petition out of time, namely,


 1 N.J.S.A. 2C:7-1 to -23.
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                                        2
neither the court, nor his counsel, advised him of the five-year time limitation

for PCR petitions. Additionally, he claimed his trial and plea counsel were

ineffective because they failed to explain his plea subjected him to PSL and

forced him to enter into the plea instead of proceeding to trial . He argued the

court should address the merits of his petition and not deny it on grounds of time

or procedural bars.

      Following oral argument, Judge Ryan issued a detailed, twenty-five page

decision denying the petition. The judge found the petition was time barred

because it was filed beyond the five-year time limitation set forth in Rule 3:22-

12(a)(1). He determined defendant failed to demonstrate excusable neglect as a

general matter. The judge also rejected defendant's claim his lack of knowledge

of the time limitation was excusable neglect because "at the time of the plea and

sentence in this matter [Rule 3:21-4(h)] did not require advisement of the five-

year time frame for filing a PCR [petition]." The judge found defendant's

petition was procedurally barred pursuant to Rule 3:22-4 because he could have

raised the claims related to the voluntary nature of his plea on direct appeal.

      The judge found even if the petition was timely and not procedurally

barred, an evidentiary hearing was not warranted because defendant failed to

establish a prima facie case of ineffective assistance of counsel. Reviewing the


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                                        3
record of defendant's plea and sentencing proceedings, the judge stated

defendant's "bald assertion he was 'coerced' to enter into the plea agree ment is

completely unsupported by the record." The judge referred to defendant's plea

testimony where he advised the court he had enough time to contemplate the

plea, meet with his counsel who answered his questions, and was satisfied with

his counsel's representation. The judge made similar findings based on his

review of the sentencing transcript.

      Judge Ryan also concluded "[t]he record demonstrates [defendant] was

repeatedly advised he was subject to PSL. No colorable argument has been

made that [defendant] was unaware of this requirement." The judge concluded

defendant's "counsel were very effective in securing a favorable result for

[him]." The judge found no credible basis to support defendant's claim he

wanted to proceed to trial. As the judge noted, on the day of defendant's plea,

the State was prepared to proceed with its case and

            [t]he victim was present in the courtroom. . . . [I]n his
            PCR petition, defendant [asserts] that he was planning
            to testify that the contact was consensual. Thus,
            [defendant] would have implicated himself and
            admitted his sexual contact with a [fifteen-]year-old
            girl, hardly a sure win at trial for [defendant].

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

ineffective assistance of counsel to warrant an evidentiary hearing.

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                                       4
      On appeal, defendant raises the following points:

            POINT I – THE PCR COURT ERRED IN
            DETERMINING DEFENDANT'S PETITION FOR
            POST-CONVICTION RELIEF WAS TIME-BARRED
            AS EXCUSABLE NEGLECT OR EXCEPTIONAL
            CIRCUMSTANCE WAS APPLICABLE PURSUANT
            TO [RULE] 3:22-12(a)(1) BECAUSE NEITHER THE
            COURT NOR TRIAL COUNSEL INFORMED THE
            DEFENDANT OF THE FIVE-YEAR TIME LIMIT.

            POINT II – THE PCR COURT ERRED IN
            DETERMINING DEFENDANT'S PETITION WAS
            PROCEDURALLY-BARRED SINCE HE DID NOT
            RAISE AN INEFFECTIVE ASSISTANCE OF
            COUNSEL CLAIM ON DIRECT APPEAL.

            POINT III – THE PCR COURT ERRED IN
            DETERMINING THE DEFENDANT DID NOT
            ESTABLISH A PRIMA FACIE CASE OF
            INEFFECTIVE ASSISTANCE OF COUNSEL.

                                       I.

      "Our standard of review is necessarily deferential to a PCR court's factual

findings based on its review of live witness testimony. In such circumstances

we will uphold the PCR court's findings that are supported by sufficient credible

evidence in the record." State v. Nash,  212 N.J. 518, 540 (2013). However,

"where . . . no evidentiary hearing was conducted, we may review the factual

inferences the court has drawn from the documentary record de novo." State v.




                                                                         A-0274-18T4
                                        5 Blake 444 N.J. Super. 285, 294 (App. Div. 2016) (citing State v. Harris,  181 N.J. 391, 420-21 (2004)).

      After reviewing the record in light of the applicable legal standards, we

conclude defendant's arguments are uniformly without merit, and we affirm

substantially for the reasons stated in Judge Ryan's written opinion. R. 2:11-

3(e)(2).

      Affirmed.




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