STATE OF NEW JERSEY v. JAZAAR R. REDDING

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                                NOT FOR PUBLICATION WITHOUT THE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-4150-18
STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JAZAAR R. REDDING,

     Defendant-Appellant.
_______________________

                   Submitted January 21, 2021 – Decided March 9, 2021

                   Before Judges Alvarez and Sumners.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Monmouth County, Indictment No. 04-11-
                   2729.

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

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

PER CURIAM
      Defendant Jazaar R. Redding appeals Law Division orders of August 2,

2013 and August 23, 2018, denying his petitions for post-conviction relief

(PCR) without an evidentiary hearing. We affirm.

      The basis for defendant's petitions arises from his claim that trial counsel

advised him that he would be receiving community supervision for life (CSL)

and not the more stringent parole supervision for life (PSL) when he pled guilty

on January 10, 2005, to third-degree endangering the welfare of a child,  N.J.S.A.

2C:24-4(a). The record reveals that defendant was placed on CSL and PSL, and

then just PSL.

      Trial counsel stated the Megan's Law plea form, including "[t]he special

one that . . . explains to [defendant] exactly what community supervision for life

entails[,]" was "filled out[]" with and "explained" to defendant. Defendant

confirmed this, also stating that he read and understood the plea form. The

Megan's Law conditions were reinforced by the judge's admonition to defendant

that he would be "subject to [the] provisions of Megan’s Law.             That is

community supervision for life . . . . [A]mong other things, . . . you can’t leave

the state without anybody telling you to, and there has been a two-page

document explaining to you in detail what community supervision for life is."

After defendant admitted that he had "sexual relations" with a fourteen-year-old


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girl, the judge accepted his plea because it was entered "with full

understanding[]" and "voluntarily[.]"

      In accordance with the plea agreement, defendant was sentenced by the

same judge on April 29, 2005, to two years' probation and time served. The

judge stated he would be subject to "[t]he provisions of Megan’s Law[,]" with

"parole supervision for life." There was no mention of CSL. The judgment of

conviction (JOC) entered on May 3, 2005, noted that, with two pre-filled check

boxes indicating defendant was sentenced to "community supervision for life"

and "a LIFE . . . term of parole supervision[.]" Defendant did not file a direct

appeal.

      On December 2, 2005, an amended JOC dated November 28, 2005, was

entered, noting: "THE IMPOSITION OF SENTENCE IS SUSPENDED, AND

THE DEFENDANT IS SENTENCED TO PAROLE SUPERVISION FOR

LIFE."

      On April 19, 2012, nearly seven years after his May 3, 2005 JOC and six-

and-a-half years after his December 2, 2005 amended JOC, defendant filed a pro

se PCR petition alleging counsel was ineffective for not fully explaining the

concept of PSL and not arguing that he should not be subject to PSL because,

among other reasons, the victim was not raped and she misled him to believe


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she was eighteen years old, and he was not a sexual predator. After being

assigned counsel, defendant argued that the five-year statutory time limit to file

for PCR should not apply "because he did not understand the law or the benefits

of appealing his case, and he felt that the case was closed once he was

convicted."

      Defendant's petition was dismissed with prejudice in an August 2, 2013

order, when he failed to appear for oral argument. PCR counsel did not know

why defendant was not present. He advised the judge that the last time they met

he told defendant of the court date, and that "every [phone] number I . . . have

right now is off and not working." The judge stated defendant's petition was

filed "almost" six-and-a-half years after the amended JOC, "well outside the

five-year time limit[] mandated by [Rule] 3:22-12(a)(1)." Despite noting that

he "was not overly impressed with [defendant's] argument[,]" the judge did not

address "the merits of the petition in light of the fact that defendant has failed

to" appear.

      Defendant did not appeal the August 2, 2013 dismissal order, but over

thirteen months later, on November 12, 2014, a different defense counsel filed

a motion to reconsider the order. Defendant asserted that prior PCR counsel

failed to advise him of the August 2, 2013 argument date. He also alleged that


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prior counsel forged his signature on a "Notice of Right to Appeal (Post-

Conviction Relief)" form.

      The same PCR judge who dismissed defendant's first PCR petition, heard

argument, and denied the application in a July 10, 2015 order and written

decision. The judge initially determined that the motion to reconsider was

untimely because it was filed over a year past the twenty-day period to file a

reconsideration motion required by Rule 1:7-4(b). Considering the motion a

second PCR because it alleged that the first PCR counsel failed to advise

defendant of PCR argument date, the judge determined the application was

untimely under Rule 3:22-12(a)(2)(C) because it was not filed within one year

of the August 2, 2013 dismissal of the first PCR petition.          Defendant's

application was three months and ten days late. The judge further pointed out

that defendant failed to provide an affidavit or certification supporting the

allegation that he was not advised of the August 2, 2013 hearing date. See State

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

      The judge also addressed the merits of defendant's underlying PCR claim

that counsel was ineffective for not fully explaining the concept of PSL and,

therefore, he should not be subject to PSL. Noting the claim was untimely filed

over nine years after defendant was sentenced in April 2005, the judge found


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there was no proof of excusable neglect for the late filing. R. 3:22-12(a)(1).

The judge further found there was no showing that a fundamental injustice

would result because defendant professeed no claim of innocence to the

conviction of endangering the welfare of a child, but merely asserted he should

not be subject to PSL. R. 3:22-12(a)(1). Defendant did not appeal the July 10,

2015 order.

      Nearly three years later, a self-represented defendant filed another PCR

petition dated June 28, 2018. Based upon the record, it is not apparent what

defendant alleged because that petition is not provided. Defendant's two-page

form affidavit in support of PCR, specifying his conviction, sentence, and prior

PCR petition, is provided, but it makes no mention of his claims.

      A different judge, treating the petition as a "second" PCR petition, denied

relief in an August 23, 2018 order stating the:

              . . . petition is out of time under Rule 3:22-12(a)(3),
              which only permits a second petition for post-
              conviction relief to be treated as a first petition if filed
              within 90 days of the date of the judgment on direct
              appeal, and Rule 3:22-12(a)(2), which requires a
              second petition for post-conviction relief be filed
              within one year after the denial of the first petition
              ....

Before us, defendant argues:



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            POINT I

            TRIAL DEFENSE COUNSEL WAS INEFFECTIVE
            BY    FAILING  TO    PROPERLY    INFORM
            DEFENDANT THAT HE WAS SUBJECT TO
            PAROLE SUPERVISION FOR LIFE, THEREBY
            MAKING DEFENDANT'S PLEA UNKNOWING
            AND INVOLUNTARY. HE ALSO FAILED TO
            OBJECT OR CORRECT THE TRIAL COURT WHEN
            IT IMPOSED PAROLE SUPERVISION FOR LIFE.

            POINT II

            DEFENDANT WAS NOT AWARE OF THE AGE OF
            THE ALLEGED VICTIM, AND THUS HIS GUILTY
            PLEA   WAS   NEITHER    KNOWING     NOR
            VOLUNTARY[.]

We find no merit in these arguments.

      Defendant's appeal of the August 2, 2013 order, which dismissed his first

PCR petition, was not timely filed within forty-five days. R. 2:4-1(a). It is too

late to challenge that order in his appeal. The petition was also deficient because

it was filed well after five years of the conviction being challenged, with no

showing of excusable neglect for its tardy filing and that fundamental injustice

would occur if relief were denied. R. 3:22-12(a)(1)(A).

      Defendant's appeal of the September 5, 2018 order likewise suffers from

a timeliness deficiency. The order properly denied essentially defendant's third




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PCR petition filed on June 28, 2018, because it was filed well after one year of

the second or subsequent petition. R. 3:22-12(a)(2)(C).

      No further discussion is needed in this opinion as defendant's arguments

lack sufficient merit.  1 R. 2:11-3(e)(2).


1
  The appendix to defendant's merits briefs includes a May 22, 2019 certification
from an Assistant Public Defender and a September 6, 2018 letter to defendant
from the Office of Attorney Ethics of the Supreme Court enclosing a Court order
of the same date stating that trial counsel was suspended from the practice of
law for three months as a result of an ethics complaint defendant filed against
counsel. The Court agreed with the findings of the Disciplinary Review Board
that counsel violated

             RPC 1.2(a) (failure to abide by a client's decisions
             concerning the scope and objectives of the
             representation)[;] RPC l.4(b) (failure to keep a client
             reasonably informed about the status of the matter)[;]
             RPC 3.3(a)(l) (knowing[ly] making a false statement of
             material fact or law to a tribunal)[;] RPC 4.l(a)(1)
             (knowingly making a false statement of material fact or
             law to a third person)[;] RPC 8.1(a)(knowingly making
             a false statement of material fact in connection with a
             disciplinary matter)[;] and RPC 8.4(c)(conduct
             involving       dishonesty,    fraud,     deceit     or
             misrepresentation)[.]

Because the Court's order was not brought to trial court's attention and
defendant's brief does not explain how the order impacts this appeal, we do not
consider it. See State v. Marroccelli,  448 N.J. Super. 349, 373 (App. Div. 2017)
(holding we "decline to consider questions or issues not properly presented to
the trial court . . . unless the questions so raised on appeal go to the jurisdiction
of the trial court or concern matters of great public interest.") (alteration in
original) (quoting State v. Robinson,  200 N.J. 1, 20 (2009)); Gormley v. Wood-


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     Affirmed.




El,  218 N.J. 72, 95 n.8 (2014) (recognizing an issue not briefed is deemed
waived).
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