STATE OF NEW JERSEY v. JEFFREY N. MOORE, 1

NOT FOR PUBLICATION WITHOUT THE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-0285-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JEFFREY N. MOORE, 1

     Defendant-Appellant.
_______________________

                   Submitted January 13, 2021 – Decided February 16, 2021

                   Before Judges Vernoia and Enright.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Warren County, Accusation Nos. 10-09-0331
                   and 10-09-0332.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Frank M. Gennaro, Designated Counsel, on
                   the brief).

                   James L. Pfeiffer, Acting Warren County Prosecutor,
                   attorney for respondent (Dit Mosco, Special Deputy
                   Attorney General/Acting Assistant Prosecutor, of
                   counsel and on the brief).

1
     Defendant is designated in the record also as Jeffrey Nicholas Moore.
PER CURIAM

      Defendant Jeffrey N. Moore appeals from an order denying his post-

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

      On September 28, 2010, defendant pled guilty under separate accusations

to third-degree endangering the welfare of a child involving sexual conduct,

 N.J.S.A. 2C:24-4(a), third-degree terroristic threats,  N.J.S.A. 2C:12-3(b), a

disorderly persons offense of possession of a controlled dangerous substance

(CDS),  N.J.S.A. 2C:35-10(a)(4), and an amended disorderly persons offense of

CDS distribution,  N.J.S.A. 2C:35-5(b). Defendant signed and initialed each

page of the plea form, including a supplemental plea form for sexual offenses.

Also, during his plea hearing, defendant acknowledged that as a result of his

guilty plea to the endangering charge, he would be sentenced to parole

supervision for life (PSL),  N.J.S.A. 2C:43-6.4(a), and would be required to

comply with the requirements of Megan's Law,  N.J.S.A. 2C:7-1 to -11.

Defendant testified he understood the nature of his charges and understood his

rights. He further testified he reviewed his plea with his attorney the night

before the plea hearing and had an ample time to discuss the matter with counsel.

      Further, defendant provided a factual basis for his offenses. On the

endangering charge, he admitted he had sexual intercourse with, and performed

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oral sex on, his fifteen-year-old victim. At the conclusion of the plea hearing,

the judge found defendant was "adequately advised" of his rights, that he waived

those rights, free of threats or coercion, and that he was satisfied with his

attorney's representation.

      Defendant was sentenced in accordance with his plea agreement on May

13, 2011.    The sentencing judge imposed a three-year prison term for the

endangering offense, conditioned on PSL and Megan's Law restrictions, to run

concurrent to a three-year term for the terroristic threats charge. 2        At the

conclusion of the sentencing proceeding, the judge advised defendant he had

forty-five days to appeal his conviction and sentence. The judge added, "[i]f

you want to appeal and you miss that 45-day deadline, it will be extended for 30

days for good cause shown . . . . You also have five years from today's date to

file a petition for post-conviction relief." Asked by the judge if he understood

those rights, defendant answered, "[y]es."         Defendant did not appeal his

conviction or sentence.




2
   The record does not reflect that any sentences were pronounced on the two
CDS-related disorderly persons offenses to which defendant pled guilty. It is
unnecessary for us to address the resolution of these offenses on this appeal, but
we note either party is free to apply directly to the trial court to seek appropriate
relief based on any outstanding charges.
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      Defendant filed a pro se PCR petition on December 12, 2017, more than

six years after he was convicted. Once he was assigned PCR counsel, he

supplemented his petition. Defendant contended, among other claims, that PSL

"violates the ex post facto clause," "is unconstitutional and should be abolished,"

that the consequences of his plea were not explained to him, and that his trial

counsel was ineffective. In particular, he claimed his attorney did not properly

prepare and investigate his case. Further, he argued that if he had known the

"actual consequences of the guilty plea, [he] would never have accepted it and

would have taken the case to trial." Additionally, defendant certified he was not

advised by his "attorney or anyone else that [he] could appeal [his] conviction"

and "never advised that [he] could file a petition for post-conviction relief and

that [he] had to do that within 5 years."

      Following oral argument on June 27, 2019, the PCR judge denied the

petition without an evidentiary hearing.       He found defendant's argument

regarding ex post facto laws was unpersuasive and that his petition was time

barred. However, the judge also considered the merits of defendant's petition.

He noted defendant was "given the minimum sentence for this third -degree

crime of endangering the welfare of a child." Additionally, the judge referred

to the transcript from defendant's plea and sentencing hearings and found:


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     [defendant] raises the issue of ineffective assistance
     [of] counsel. In reviewing the record before me, which
     contains some statements under oath, a colloquy plea of
     guilty by the appellant, Mr. Moore, under oath, and,
     today, claiming that the only reason he pled guilty was
     because his lawyer told him he had to do that.

           ....

     I cannot find evidence enough in this record . . . that
     counsel in this matter was ineffective . . . nor can I find
     any justification for not filing an appeal within the five
     years provided by our statute. Particularly, although he
     denies that he was advised of the five-year provision,
     it's clearly in the record. So, I can't find that statement
     to be credible.

On appeal, defendant raises the following arguments:

     POINT I

     THE PCR COURT ERRED BY FINDING THAT
     DEFENDANT'S PETITION WAS TIME BARRED
     AND BY DENYING THE PETITION WITHOUT
     AFFORDING DEFENDANT AN EVIDENTIARY
     HEARING.

     A.   THE PREVAILING LEGAL PRINCIPLES
     REGARDING   CLAIMS    FOR    INEFFECTIVE
     ASSISTANCE OF COUNSEL, EVIDENTIARY
     HEARINGS AND PETITIONS FOR [PCR].

     B. THE TIME BAR OF [RULE] 3:22-12 SHOULD
     HAVE BEEN RELAXED.

     C.  FAILURE          TO      COMMUNICATE             AND
     INVESTIGATE.


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      Having considered these arguments in light of the record and applicable

legal standards, we are not persuaded.

      A PCR petition must be filed within five years of the entry of the judgment

of conviction. R. 3:22-12(a)(1). However, "[t]he five-year time limit is not

absolute." State v. Milne,  178 N.J. 486, 492 (2004). "[A] court may relax the

time bar if the defendant alleges facts demonstrating that the delay was due to

the defendant's excusable neglect or if the 'interests of justice' demand it." State

v. Goodwin,  173 N.J. 583, 594 (2002).

      A claim of excusable neglect requires "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). To avoid application of

the time bar in Rule 3:22-12(a)(1), the defendant must show the failure to file a

petition within the time required was due to "compelling, extenuating" or

"exceptional circumstances." State v. Brewster,  429 N.J. Super. 387, 400 (App.

Div. 2013) (quoting Milne,  178 N.J. at 492).         In determining whether the

defendant has made the required showing, the court must consider: (1) "the

extent and cause of the delay"; (2) "the prejudice to the State"; and (3) "the

importance of the petitioner's claim in determining whether there has been an




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'injustice' sufficient to relax the time limits." State v. Afanador,  151 N.J. 41, 52

(1997) (quoting State v. Mitchell,  126 N.J. 565, 580 (1992)).

      Here, defendant did not demonstrate his failure to file a timely PCR

petition was due to "excusable neglect." Instead, he argued he was unaware he

had to file his PCR petition within five years of conviction. Yet, the record

clearly demonstrates he was informed of the five-year deadline at sentencing.

Moreover, excusable neglect under Rule 3:22-12 cannot be based on ignorance,

misunderstanding, or a lack of sophistication in the law. State v. Murray,  162 N.J. 240, 246 (2000) (citing Mitchell,  126 N.J. at 580). Thus, the PCR judge

properly denied defendant's PCR petition as time barred under Rule 3:22-12

(a)(1).

      Although we dispose of this appeal on procedural grounds, we briefly

address the merits of defendant's ineffective assistance of counsel claims. To

demonstrate ineffective assistance of counsel, a defendant must demonstrate: (1)

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

guaranteed the defendant by the Sixth Amendment," and (2) "the deficient

performance prejudiced the defense." Strickland v. Washington,  466 U.S. 668,

687 (1984); accord State v. Fritz,  105 N.J. 42, 58-59 (adopting the two-prong

Strickland test in New Jersey). Moreover, "[t]o set aside a guilty plea based


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on ineffective assistance of counsel, a defendant must show . . . 'that there is a

reasonable probability that, but for counsel's errors, [the defendant] would not

have pled guilty and would have insisted on going to trial.'" State v. Nunez-

Valdez,  200 N.J. 129, 139 (2009) (quoting State v. DiFrisco,  137 N.J. 434, 457

(1994) (alterations in original)). A defendant claiming ineffective assistance of

plea counsel must also demonstrate that but for counsel's errors "it would have

been rational under the circumstances" to reject the plea bargain and proceed to

trial. State v. Maldon,  422 N.J. Super. 475, 486 (App. Div. 2011) (quoting

Padilla v. Kentucky,  559 U.S. 356, 372 (2010)).

      Merely raising a claim for PCR does not entitle a defendant to an

evidentiary hearing. State v. Cummings,  321 N.J. Super. 154, 170 (App. Div.

1999). Further, the denial of an evidentiary hearing for a PCR petition is

reviewed for an abuse of discretion. Brewster,  429 N.J. Super. at 401 (citing

State v. Marshall,  148 N.J. 89, 157-58 (1997)).

      Here, we are persuaded defendant did not demonstrate it would have been

rational for him to reject the highly favorable plea offer tendered by the State.

See Maldon,  422 N.J. Super. at 486. Indeed, although he stated in his PCR

petition that he "wanted to take the case to trial and knew that [he] would be

acquitted as the prosecutor would not be able to prove their case," such


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statements amount to bald assertions. See Cummings,  321 N.J. Super. at 170

(explaining "bald assertions" are insufficient to sustain a defendant's burden of

establishing a prima facie case of ineffective assistance of counsel under the

Strickland standard). Not only did defendant fail to articulate a viable trial

strategy to bolster his claims, but the proofs against defendant were strong. For

example, he provided a statement to the police, admitting he performed oral sex

on, and engaged in sexual intercourse with, his fifteen-year-old victim; the

victim provided similar information to the local prosecutor's office . Regarding

the terroristic threats offense, the record reflects defendant threatened to kill a

police officer while he was being processed at police headquarters.

      Additionally, defendant provided a detailed factual basis for each offense.

Prior to doing so, he assured the trial court that he discussed his guilty pleas

with his lawyer the night before the plea hearing and was satisfied with his

attorney's services. Moreover, in exchange for his guilty pleas, he received a

favorable plea bargain which resulted in the dismissal of two second-degree

sexual assault charges,  N.J.S.A. 2C:14-2(c)(4), as well as other charges. Also,

he received the benefit of the State's recommendation that he serve concurrent

three-year prison terms on his third-degree offenses.          Subsequently, the

sentencing judge adhered to the plea agreement and imposed the minimum


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                                        9
sentence for defendant's endangering offense. Accordingly, we are convinced

the PCR judge properly rejected defendant's ineffective assistance of counsel

claims and that the judge did not abuse his discretion in denying defendant's

PCR petition without an evidentiary hearing.

      To the extent we have not addressed defendant's remaining arguments, we

are satisfied they lack sufficient merit to warrant discussion in this opinion. R.

2:11-3(e)(2).

      Affirmed.




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