STATE OF NEW JERSEY v. JOSEPH J. BROWN

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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4400-18T3

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

JOSEPH J. BROWN,

         Defendant-Appellant.


                   Submitted October 15, 2020 – Decided October 26, 2020

                   Before Judges Rose and Firko.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Monmouth County, Indictment No. 09-04-
                   0695.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Elizabeth H. Smith, Designated Counsel, on
                   the brief).

                   Christopher J. Gramiccioni, Monmouth County
                   Prosecutor, attorney for respondent (Monica do
                   Outeiro, Assistant Prosecutor, of counsel; Liz F. Torres
                   Sanchez, Legal Assistant, on the brief).

PER CURIAM
      Defendant Joseph J. Brown appeals from a February 4, 2019 order denying

his petition for post-conviction relief (PCR) without an evidentiary hearing. We

affirm because the petition was untimely filed and otherwise lacked merit.

      We summarize the pertinent facts and tortured procedural history from the

record on appeal. On March 15, 2010, defendant entered an open guilty plea to

second-degree eluding,  N.J.S.A. 2C:29-2(b), as charged in a single-count

Monmouth County indictment. He also pled guilty to two companion motor

vehicle summonses: driving while intoxicated (DWI),  N.J.S.A. 39:4-50; and

driving while his license was suspended,  N.J.S.A. 39:3-40. The State agreed to

dismiss defendant's remaining motor vehicle infractions, but made no sentencing

recommendation.

      Before the trial judge, defendant acknowledged he signed the four-page

plea form and understood its terms, which his attorney had read to him. When

asked whether he understood his second-degree eluding charge exposed him to

a term of imprisonment of "up to ten years" with "five years minimum parole

ineligibility," defendant politely responded, "Yes, sir, I do." Defendant likewise

indicated he comprehended the mandatory jail sentences and fines for his motor

vehicle charges and, although defendant was permitted to argue for concurrent




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sentences, the judge could impose consecutive sentences on each of defendant's

three charges.

      The judge then engaged defendant in the following colloquy:

            THE COURT: [T]his plea will be an open-ended plea.
            We have already gone to plea cutoff and I think the plea
            offer at that time was for a flat eight years. Once we go
            to plea cutoff, the State cannot make you any further
            plea offer. The only way you can plead is if you plead
            open-ended, so you're facing the maximum sentences.
            Do you understand?

            DEFENDANT: Yes.

            THE COURT: Your attorney can argue for less, but
            you shouldn't anticipate less. You have to anticipate
            the maximum. Do you understand?

            DEFENDANT: Yes.

            THE COURT: Knowing all of that, do you still wish to
            plead guilty?

            DEFENDANT: Yes, sir.

            THE COURT: Have there been any other promises
            made to you or representations made to you to get you
            to plead guilty?

            DEFENDANT: No, sir.

Upon entering defendant's guilty plea, the judge further noted "no undisclosed

threats or promises" had been made to defendant.         Defendant's answer to



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question twenty-one of the plea form likewise confirmed no "other promises or

representations" were made to defendant "by anyone" including his attorney.

      Following entry of his guilty plea, defendant requested postponement of

his sentencing date so he could spend time with his "lady, taking her places,

preparing to go to incarceration, putting stuff in hock, in storage, and stuff like

that." (Emphasis added). Defendant assured the judge he had not drank alcohol

since the date of his arrest and would not imbibe while he awaited sentencing,

remarking: "As a matter of fact, I was going to go into a rehab, but I figured I

would get a rehab when I go to jail." (Emphasis added).

      The trial judge denied defendant's ensuing motion to withdraw his guilty

plea, finding defendant's plea colloquy "overwhelmingly" contradicted

defendant's belated assertions that plea counsel told defendant he "would receive

a suspended sentence and would not be subject to the maximum sentence or any

jail time." Although the judge granted the State's motion for a discretionary

extended term,  N.J.S.A. 2C:44-3(a), thereby exposing defendant to a maximum

term of imprisonment of twenty years with a ten-year term of parole ineligibility

on the second-degree eluding conviction,  N.J.S.A. 2C:43-7(b), the judge

sentenced defendant within the ordinary range to an eight-year prison term, with

four years of parole ineligibility,  N.J.S.A. 2C:43-7(a)(3), on the eluding charge.


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The judge imposed a concurrent 180-day jail term on the DWI conviction; and

a consecutive 180-day jail term on defendant's fifth conviction for driving on

the suspended list. The judge entered a conforming judgment of conviction

(JOC) on January 14, 2011.

      Thereafter, defendant filed several PCR petitions, all of which – as the

present PCR judge noted – "were either dismissed or withdrawn without

prejudice for various reasons."      According to his present PCR petition:

defendant withdrew his first petition as reflected in a February 20, 2014 order;

a PCR judge dismissed defendant's second petition on October 28, 2014 because

his direct appeal was pending,1 see Rule 3:22-6A(2); defendant's third petition

was dismissed for lack of prosecution on December 5, 2016; and another PCR

judge dismissed defendant's "fifth petition" as untimely on June 19, 2018. 2




1
  Defendant did not appeal his conviction or sentence, but only challenged the
denial of his motion for a change in custody and, as such, the matter was
scheduled on an excessive sentencing oral argument calendar. R. 2:9-11. We
affirmed the trial court's decision. State v. Brown, No. A-0550-14.
2
  Defendant did not appeal from the June 19, 2018 order. The record on
appeal does not contain the February 20, 2014 and December 5, 2016 orders.
Because the parties did not provide an order disposing of defendant's fourth
PCR petition, it is unclear from the record whether he filed a fourth petition.



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        On October 26, 2018 – more than seven years after the JOC was entered

– defendant filed the present PCR, incorporating his amended October 23, 2017

petition.3 Defendant acknowledged his "present petition [wa]s filed past the

five-year time frame as set forth in R[ule] 3:22-12."4 But defendant alleged his

delay was excusable because he learned from his then-PCR counsel "that to fully

pursue [PCR], it was necessary for [defendant] to conduct further research into

[his] case, as the present matter [wa]s tangentially related to other pending

litigation." Having completed that investigation, defendant was "prepared to

move forward with the matter." Defendant further asserted: "Having never been


3
  According to defendant's merits brief, defendant filed the present petition
pro se, but he was thereafter represented by counsel.
 4 Rule 3:22-12 provides, in pertinent part:

              (1) First Petition For Post-Conviction Relief. . . . [N]o
              petition shall be filed pursuant to this rule more than 5
              years after the date of entry pursuant to Rule 3:21-5 of
              the [JOC] that is being challenged unless:

              (A) it alleges facts showing that the delay beyond said
              time was due to defendant's excusable neglect and that
              there is a reasonable probability that if the defendant's
              factual assertions were found to be true enforcement of
              the time bar would result in a fundamental injustice

                    ....



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previously satisfied with presentations of the previously-filed petitions, under

the totality of the circumstances, the delay should be found to be excusable."

Defendant claimed "enforcement of the time bar" would "result in a fundamental

injustice."

      Following argument on February 4, 2019, the PCR judge 5 entered the

order denying defendant's petition and issued a cogent oral decision squarely

addressing the issues raised in view of the governing legal principles. The judge

initially determined defendant's petition was time barred under Rule 3:22-12(1).

In that regard, the judge noted defendant was sentenced in January 2011 and

failed to demonstrate excusable neglect by filing his petition beyond the five-

year time limitation. The judge rejected defendant's unsupported contention that

"he was not provided with effective counsel on the previous PCR petitions and

by the time present counsel was assigned it was realized there were a number of

documents missing from his file that were needed for the application." The

judge concluded defendant failed to demonstrate "enforcement of the procedural

bar would result in a fundamental injustice." Accordingly, the judge denied

PCR on procedural grounds.



5
  The PCR judge did not enter defendant's guilty plea, sentence defendant, or
enter the previous PCR orders that were provided on appeal.
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       Nonetheless, the PCR judge also addressed the merits of defendant's

petition, i.e., that plea counsel "misled" him regarding his "anticipated sentence"

and failed "to adequately contest the legitimacy of the indictment." Surveying

the applicable law, the judge set forth the prerequisites for an evidentiary

hearing, Rule 3:22-10(b),6 and explained defendant's burden for demonstrating

PCR, see Strickland v. Washington,  466 U.S. 668, 687 (1984) (requiring a

defendant seeking PCR on ineffective assistance of counsel grounds to

demonstrate: (1) the particular manner in which counsel's performance was

deficient; and (2) that the deficiency prejudiced defendant's right to a fair trial);

see also State v. Fritz,  105 N.J. 42, 58 (1987) (adopting the Strickland two-part

test in New Jersey).




6
    As the PCR judge correctly stated, Rule 3:22-10(b) provides:

             A defendant shall be entitled to an evidentiary hearing
             only upon the establishment of a prima facie case in
             support of post-conviction relief, a determination by the
             court that there are material issues of disputed fact that
             cannot be resolved by reference to the existing record,
             and a determination that an evidentiary hearing is
             necessary to resolve the claims for relief. To establish
             a prima facie case, defendant must demonstrate a
             reasonable likelihood that his or her claim, viewing the
             facts alleged in the light most favorable to the
             defendant, will ultimately succeed on the merits.
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      The PCR judge rejected defendant's claim that plea counsel failed to

inform him about the sentencing consequences of his guilty plea and failed to

challenge the indictment. Pertinent to this appeal, the judge found the plea

colloquy between the trial judge and defendant belied defendant's assertions.

Implicitly finding defendant failed to establish the first Strickland prong, the

PCR judge elaborated:

            [The trial judge] explained to defendant on the record
            the maximum sentence he was facing and defendant
            stated under oath . . . he understood that because the
            plea was open he could face up to the maximum
            sentence.

                  During the plea hearing, defendant also indicated
            he knew he would be going to jail because he requested
            extra time before sentencing to get his affairs in order
            and he stated that he had not pursued any sort of
            treatment because he anticipated getting treatment
            when he was incarcerated.

The PCR judge also found defendant failed to demonstrate prejudice under the

second Strickland prong because "much of defendant's sentence was governed

by statute and the record indicates . . . defendant fully understood what he was

pleading to and the consequences thereof." This appeal followed.

      On appeal, defendant limits his argument to a single point for our

consideration:



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            THE TRIAL COURT ABUSED ITS DISCRETION IN
            DENYING DEFENDANT'S PETITION FOR POST-
            CONVICTION RELIEF AS DEFENDANT HAS
            MADE A SUFFICIENT PRIMA FACIE CASE OF
            INEFFECTIVE ASSISTANCE OF COUNSEL TO
            WARRANT AN EVIDENTIARY HEARING.

      Because defendant's contentions on appeal challenge the PCR judge's

legal conclusions, our review is de novo. State v. Parker,  212 N.J. 269, 278

(2012). "[W]here, as here, no evidentiary hearing was conducted, we may

review the factual inferences the court has drawn from the documentary record

de novo." State v. Blake,  444 N.J. Super. 285, 294 (App. Div. 2016); see also

State v. Harris,  181 N.J. 391, 421 (2004).

      As a threshold matter, defendant does not address the PCR judge's

decision that his petition was time barred. An issue not briefed is deemed

waived. See Gormley v. Wood-El,  218 N.J. 72, 95 n.8 (2014); see also Pressler

& Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2021).                 We

nonetheless have considered the timing of defendant's petition, and on this

record, find no basis to disturb the judge's reasoned analysis of this issue.

      Turning to the merits of defendant's petition, we similarly conclude from

our de novo review that defendant failed to establish a prima facie showing of

ineffective assistance of counsel, and correctly determined an evidentiary

hearing was not warranted. See R. 3:22-10(b); see also State v. Porter, 216 N.J.

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343, 354 (2013). We affirm substantially for the reasons expressed in the PCR

judge's cogent oral decision. R. 2:11-3(e)(2).

      Simply put, there is no evidence supporting defendant's bald assertions

that plea counsel assured defendant his sentence would be suspended. See

Porter,  216 N.J. at 355 (noting a defendant's PCR petition must contain "specific

facts and evidence supporting his allegations"). Moreover, the records from the

plea proceedings and sentencing amply refute any claim that defendant was

misinformed about his prison sentence.

      Affirmed.




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