                        NOT FOR PUBLICATION WITHOUT THE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-4949-14T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JOHNNY J. FERGUSON,

     Defendant-Appellant.
______________________________

              Submitted October 17, 2016 – Decided June 8, 2017

              Before Judges Fisher and Ostrer.

              On appeal from the Superior Court of New
              Jersey,   Law  Division,   Monmouth County,
              Indictment No. 05-07-1611.

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

              Christopher J. Gramiccioni, Monmouth County
              Prosecutor, attorney for respondent (Mary R.
              Juliano, Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM

        In this appeal from the denial of his petition for post-

conviction relief (PCR), defendant Johnny Ferguson collaterally

challenges      his    conviction    of   third-degree      burglary,    N.J.S.A.
2C:18-2, third-degree attempt to endanger the welfare of a child,

N.J.S.A.    2C:5-1   and   2C:24-4(a),    and   fourth-degree   resisting

arrest, N.J.S.A. 2C:29-2(a).        In his plea hearing, defendant

admitted that he entered a home in Asbury Park without permission

at around midnight, entered a bedroom where three children were

asleep, pulled down his pants, and ejaculated onto the underwear

and bedding of a sleeping girl.         One of the children later awoke

to find defendant asleep on the bed with his genitals exposed.

       Pursuant to his plea agreement, the court sentenced defendant

to consecutive terms of four years on the burglary and attempted

endangering charges, with an aggregate parole ineligibility period

of four years.    The court also sentenced him to a concurrent one-

year term of imprisonment on his resisting arrest charge.                In

addition, the court imposed parole supervision for life (PSL).

The court entered the judgment of conviction on June 8, 2006.

       Defendant filed his pro se petition in April 2014, well beyond

the five-year deadline to file a PCR petition.1         See R. 3:22-12.

He asserted that his conviction did not qualify for PSL.         He noted

that since his release, he had been twice convicted for violating

PSL.



1
 The petition was dated April 9, 2014. The precise date of filing
is not reflected in the record. He was assigned counsel in July
2014.

                                    2                             A-4949-14T2
     In an attorney-assisted brief, defendant argued that his

neglect in filing his petition within the five-year period was

reasonable because he was not aware of the consequences of his

plea until he had been paroled from prison.          He also argued that

his allocution did not present a sufficient factual basis for his

endangering conviction, which had qualified him for PSL.              Last,

he argued that his trial attorney was ineffective in failing to

recognize this insufficiency and convincing him to plead guilty.

     The PCR court held that defendant's petition was time-barred

by Rule 3:22-12.     The court specifically noted that defendant's

alleged ignorance of the PSL consequences of his plea was belied

by the detailed colloquy with the court during the plea hearing.

Furthermore, defendant's challenge to the factual basis of his

plea was barred by Rule 3:22-4 because he could have raised it on

direct   appeal.     The   court   also   rejected   a   contention   that

defendant's counsel was ineffective because he failed to provide

any evidence of his counsel's allegedly deficient performance.

     On appeal, defendant argues the following points:

           POINT I

           THE ORDER DENYING POST-CONVICTION RELIEF
           SHOULD    BE   REVERSED   BECAUSE    DEFENDANT
           ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE
           THAT HIS SIXTH AMENDMENT RIGHT TO BE PROTECTED
           BY TRIAL COUNSEL FROM ENTERING A GUILTY PLEA
           TO A CRIME HE DID NOT COMMIT, AND HIS SIXTH
           AMENDMENT RIGHT TO BE PROTECTED BY TRIAL

                                    3                             A-4949-14T2
           COUNSEL FROM BEING IMPROPERLY SENTENCED TO
           PAROLE SUPERVISION FOR LIFE, WERE VIOLATED.

           POINT II

           THE ORDER DENYING POST-CONVICTION RELIEF
           SHOULD BE REVERSED BECAUSE THE PCR COURT
           MISAPPLIED THE PROCEDURAL BARS OF R. 3:22-4
           AND R. 3:22-12.

     Defendant's      appeal     lacks       sufficient   merit    to    warrant

discussion in a written opinion.                R. 2:11-3(e)(2).        We limit

ourselves to the following brief comments.

     Defendant failed to establish both excusable neglect and a

fundamental injustice to justify consideration of his petition

beyond the five-year time limit that Rule 3:22-12 imposes.                    Not

only is defendant's argued ignorance of the PSL consequences of

his plea belied by the plea colloquy, it is also unsupported by

any competent evidence in the record.              Defendant relies only on

his counsel's certification, upon information and belief, that

defendant was unaware of the consequences of his plea until his

parole.    See R. 1:6-6.       Furthermore, defendant's alleged belated

discovery that he had allegedly received inadequate advice as to

the PSL consequences of his plea does not constitute excusable

neglect.    See State v. Brewster, 429 N.J. Super. 387, 400 (App.

Div. 2013).

     In any event, we discern no inadequacy in the factual basis

of defendant's endangering conviction that would warrant a finding

                                         4                               A-4949-14T2
that a fundamental injustice occurred, see State v. Nash, 212 N.J.

518, 547 (2013) (stating that a "fundamental-injustice claim"

involves "some showing that an error or violation played a role

in the determination of guilt" (internal quotation marks and

citations omitted)), or a finding that defendant's trial counsel

was ineffective based on "errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment."   Strickland v. Washington, 466 U.S. 668, 687, 104 S.

Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); see also State v.

Fritz, 105 N.J. 42, 58 (1987).

     Defendant knowingly engaged in sexual conduct with a child

by ejaculating on her while she slept.      Such conduct "had the

capacity to impair or debauch the morals of the child."   State v.

Bryant, 419 N.J. Super. 15, 18 (App. Div. 2011); see also N.J.S.A.

2C:24-4(a) (defining endangering the welfare of a child to include

"engag[ing] in sexual conduct which would impair or debauch the

morals of the child").     Contrary to what defendant seems to

suggest, it is of no consequence that the victim was asleep when

he ejaculated.   Defendant expressly admitted his conduct was the

sort that would impair or debauch a child's morals.   Particularly

inasmuch as defendant pleaded guilty to attempt, it is of no moment

that the child did not awake to see defendant ejaculate.         Cf.

State v. Breitweiser, 373 N.J. Super. 271, 280-81, 283-85 (App.

                                 5                          A-4949-14T2
Div.    2004)   (affirming    sexual       assault   conviction   where    the

defendant   stood   closely    behind      an   eight-year-old    girl    in   a

supermarket and masturbated under his clothes, but the child did

not actually see the defendant's conduct), certif. denied, 182

N.J. 628 (2005).

       Affirmed.




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