                        NOT FOR PUBLICATION WITHOUT THE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-0351-15T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

KENNETH A. BARR,

     Defendant-Appellant.
________________________________

              Argued telephonically October             4,    2017    –
              Decided November 2, 2017

              Before Judges Koblitz and Manahan.

              On appeal from Superior Court of New Jersey,
              Law Division, Salem County, Indictment No.
              10-02-0076.

              Kenneth Barr, appellant, argued the cause pro
              se.

              Marianne V. Morroni, Assistant Prosecutor,
              argued the cause for respondent (John T.
              Lenahan, Salem County Prosecutor, attorney;
              Ms. Morroni, on the brief).

PER CURIAM

        Defendant Kenneth Barr appeals from the July 9, 2015 order

denying his third petition for post-conviction relief (PCR) based

on     ineffective      assistance     of   counsel.         Having    considered
defendant's arguments in light of the record and controlling law,

we affirm.

     We briefly recite the underlying facts and procedural history

relevant to our decision.       On October 3, 2008, defendant solicited

a friend to shoot his girlfriend.            The shooting, in defendant's

presence, resulted in the death of the girlfriend.                On December

23, 2010, defendant pled guilty to first-degree murder, N.J.S.A.

2C:11-3a(1),        in   exchange     for   a     forty-year     sentence        of

incarceration        subject    to    an    eighty-five     percent        parole

disqualifier, pursuant to the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2.     Appropriate fines and penalties were also imposed.

Defendant filed a notice of appeal on September 14, 2011.                        An

order dismissing the appeal was filed on December 7, 2011.

     A   pro   se    petition   for   PCR   was    filed   in   January     2012.

Predicated upon defendant's claim of ineffective assistance of

counsel, an evidentiary hearing was conducted on February 1, 2013,

at which defendant and his trial counsel testified.                        During

defendant's testimony, he referenced his relationship with his

trial counsel and his claim that his counsel did not provide him

with discovery until after his plea.            Defendant further testified




                                       2                                  A-0351-15T2
regarding   when    he   learned   of   a   video   that   he   believed   was

exculpatory.1

            Q.     Uh-huh. I'd like to turn your
                   attention to your relationship with
                   your prior trial counsel. You heard
                   his testimony.

                        So, while he was representing
                   you, do you feel he attempted to get
                   your version of the events in
                   question?

            A.     No, he never asked me my version of
                   the story, he just assumed I was
                   guilty. Like, I tried to tell him
                   and explain to him, like, what
                   happened in my version, and he never
                   gave me my discovery, or nothing.
                   So, well not to talk about that; but
                   if he would have looked at certain
                   things in my discovery, he would
                   have seen that I wasn't lying to
                   him, and he just took the statement
                   from me.

                        Like — like if he would have
                   the times from the camera footage
                   and read the statement of the eye
                   [-]witness who wasn't involved in
                   the case.   I believe his name is
                   Jamal Johnson. He would have seen
                   that I — my story, what I was
                   telling him, corroborated it. But,
                   he just assumed I was guilty.

            Q.     And, this is — you, obviously, had
                   become aware of this video that
                   shows these discrepancies?



1
  Defendant's trial counsel testified during the hearing that
discovery was provided prior to the plea.

                                        3                             A-0351-15T2
             A.   I never knew — I never know about
                  the video footage; I never knew
                  about none of the statements;
                  because I never had my discovery.
                  (Indiscernible)

             Q.   When did — when did you, in fact,
                  learn about these?

             A.   When I went to prison and Dale Jones
                  sent me a copy of my discovery.

             Q.   So, you never learned about this
                  possible video evidence in your
                  favor, until after you had entered
                  into a [p]lea?

             A.   Yep.

       The PCR was denied.       We affirmed after appeal.         State v.

Barr, No. A-4790-12 (App. Div. Feb. 25, 2015).

       Thereafter, defendant filed a second petition for PCR on

February 6, 2014.        That petition was denied in a letter opinion.

No appeal was taken from that decision.2

       Defendant filed a third petition for PCR on April 29, 2015.

The PCR judge denied the petition in a written opinion holding

that   the   factual     predicate   for   the   claims   could   have   been




2
  The record on appeal does not contain any documents relating to
the second PCR, including the letter opinion. According to the
State's brief, the "PCR was subsequently denied on April 15, 2014,
based on the defendant's failure to establish good cause by
asserting one of the grounds for newly discovered evidence or the
issues had been previously litigated."

                                      4                              A-0351-15T2
discovered     earlier   and   that       the   claims   were   previously

adjudicated.    This appeal followed.

    On appeal defendant raises the following arguments:

         POINT I

         THE TRIAL COURT ERRED IN NOT GRANTING
         PETITIONER ORAL ARGUMENTS OR AN EVIDENT[I]ARY
         HEARING, BEING THAT PETITIONER HAS A[] SIGNED
         CERTIFIED STATEMENT FROM THE STATE[']S STAR
         WITNESS   STEVEN   BARR,   THAT   GIVES   NEW
         EXCU[L]PATORY    TESTIMONY   IN    FAVOR   OF
         PETITIONER[,] AND ALSO TO DETERMINE WHY
         PETITIONER[']S TRIAL ATTORNEY FAILED TO
         INVESTIGATE OR QUESTION WINTESSES [] IN
         VIOLATION OF PETITIONER[']S U.S. CONST.
         AMENDS. IV, V, IX, AND XIV; N.J. CONST. ART.
         [I].

         POINT II

         THE TRIAL COURT ERRED IN NOT HOLDING [A]
         HEARING TO DETERMINE IF THERE IS MERIT TO
         PETITIONER['S] CLAIMS THAT HIS TRIAL ATTORNEY
         DID NOT ADVISE HIM OF HIS RIGHT TO REVOKE HIS
         PLEA AFTER THE ORIGINAL AGREEMENT WAS CHANGED
         BECAUSE IT WAS AN ILLEGAL SENTENCE [] IN
         VIOLATION OF PETITIONER[']S U.S. CONST.
         AMENDS. IV, V, IX, AND XIV; N.J. CONST. ART.
         [I].

         POINT III

         THE [TRIAL] COURT ERRED WHEN IT DID NOT CREDIT
         PETITIONER[]   THE    THREE   DAYS    OF   HIS
         INCARCERATION IN THE STATE OF DELAWARE WHILE
         HE AWAITED TO BE TRANSFER[R]ED TO THE STATE
         OF NEW JERSEY IN VIOLATION OF PETITIONER[']S
         U.S. CONST. AMEND V, IX.

    In a reply brief, defendant raises the following points:



                                      5                            A-0351-15T2
          POINT I

          THE STATE MISREPRESENTED THE ISSUES RAISED IN
          THIS [] APPEAL[,] IN REFERENCE TO WHAT THE
          PETITIONER IS USING AS NEW EVIDENCE AND WHAT
          HE IS USING AS OLD EVIDENCE TO HELP SUPPORT
          HIS NEW EVIDENCE[,] I.E.[,] STEVEN BARR SIGNED
          CERTIFICATION DATED [MARCH 22, 2015].

          POINT II

          THE STATE MISREPRESENTED THE COURT RULES ON
          WHAT IS NEW EVIDENCE AND THE PROPER WAY TO
          DETERMINE IF A PRIMA FACIE CASE OF INEFFECTIVE
          ASSSISTANCE HAS BEEN SHOWN.

          POINT III

          THE STATE MISREPRESENTED THE PETITIONER[']S
          ARGUMENT IN REFERENCE TO THE PETITIONER[']S
          TRIAL COUNSEL['S] FAILURE TO INFORM HIM OF HIS
          RIGHT TO REVOKE HIS PLEA AFTER THE ORIGINAL
          AGREED UPON SENTENCE WAS CHANGED.

       Our analysis of the issues raised on appeal is guided by a

review of the two court rules that apply to a second or subsequent

PCR.   Rule 3:22-12(a)(2) states:

          [N]o second or subsequent petition shall be
          filed more than one year after the latest of:

          (A) the date on which the constitutional right
          asserted was initially recognized by the
          United States Supreme Court or the Supreme
          Court of New Jersey, if that right has been
          newly recognized by either of those Courts and
          made retroactive by either of those Courts to
          cases on collateral review; or

          (B) the date on which the factual predicate
          for relief sought was discovered, if that
          factual  predicate  could  not   have  been


                                6                          A-0351-15T2
         discovered earlier through the exercise of
         reasonable diligence; or

         (C) the date of the denial of the first or
         subsequent application for post-conviction
         relief where ineffective assistance of counsel
         that represented the defendant on the first
         or subsequent application for post-conviction
         relief is being alleged.

    Here, defendant appeals the denial of his third PCR petition.

Consequently, Rule 3:22-12(a)(2) governs.   Under Rule 3:22-4(b),

         [a] second or subsequent petition for post-
         conviction relief shall be dismissed unless:

         (1) it is timely under [Rule] 3:22-12(a)(2);
         and

         (2) it alleges on its face either:

              (A) that the petition relies on a
              new rule of constitutional law, made
              retroactive to defendant's petition
              by the United States Supreme Court
              or the Supreme Court of New Jersey,
              that was unavailable during the
              pendency of any prior proceedings;
              or

              (B) that the factual predicate for
              the relief sought could not have
              been discovered earlier through the
              exercise of reasonable diligence,
              and the facts underlying the ground
              for relief, if proven and viewed in
              light of the evidence as a whole,
              would     raise    a     reasonable
              probability that the relief sought
              would be granted; or

              (C) that the petition alleges a
              prima facie case of ineffective
              assistance  of    counsel   that

                               7                           A-0351-15T2
                 represented the defendant on the
                 first or subsequent application for
                 post-conviction relief.

     We reject defendant's contentions and affirm the denial of

his third petition for PCR for two reasons.

     First,    the   petition     failed     to    comply   with   the   time

restrictions set forth in Rule 3:22-12(a)(2).               Defendant is not

contending    that   there   is   a   new   rule   of   constitutional   law.

Instead, defendant contends that he could not have discovered the

factual predicate for his trial counsel's ineffective assistance,

i.e., his brother, Steven Barr's recent information about the

crime as set forth in an undated certification.               Defendant also

argues that the videotape footage and the statement of Jamar

Johnson, although "old evidence," also comprised the predicate for

his claim of ineffective assistance.

     We address the latter argument by noting that neither the

videotape nor the Johnson statement qualify as a factual predicate

that would render defendant's petition timely.                Defendant was

aware of the videotape and the statement in early 2011, at the

latest.   As such, defendant's awareness of this evidence precludes

it as the factual predicate to justify his late filing.

     Notwithstanding the issue of timeliness, it is notable that

both the police report which details the attire and step-by-step

whereabouts of defendant, Steven Barr, and a friend at the motel

                                       8                             A-0351-15T2
as taken from the videotape on the date of the shooting, as well

as the Johnson statement, are compelling proof not of defendant's

innocence, but rather of his guilt.3

       Saliently, the police were able to identify defendant as a

suspect in the murder using footage from the videotape.        Further,

in his statement to the police, Johnson indicated that two days

prior to the shooting he overheard a telephone altercation between

the victim and defendant.    The call was on speakerphone, and the

victim identified the caller as defendant.      Johnson indicated that

defendant repeatedly called the victim, even after he was told to

leave her alone.     Johnson then noted that he heard defendant say

he was going to kill the victim.       Johnson further stated that upon

answering an incoming call, defendant proceeded to threaten him

by suggesting he would get at Johnson like the victim was going

to get it.     In sum, no fair reading of the police report and

Johnson's statement would lead trial counsel to conclude that they

were exculpatory.

       Defendant   also   argues   that      Steven   Barr's   undated

certification could not have been reasonably discovered over the

course of seven years.      Even were we to accept this argument,

rejected by the PCR judge, and find the third PCR was timely based


3
    The videotape was not made part of the Appellate record.


                                   9                            A-0351-15T2
upon newly discovered evidence, defendant cannot satisfy the first

prong of the Strickland test on the merits.4

       To show ineffective assistance of counsel, a defendant must

satisfy the two-pronged test of Strickland.           "The defendant must

demonstrate first that counsel's performance was deficient, i.e.,

that   'counsel    made   errors   so    serious   that   counsel   was   not

functioning as the counsel guaranteed the defendant by the Sixth

Amendment.'"      State v. Parker, 212 N.J. 269, 279 (2012) (quoting

Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed.

2d at 693) (internal quotation omitted).              The defendant must

overcome a "strong presumption that counsel rendered reasonable

professional assistance."      Ibid.      Second, "a defendant must also

establish that the ineffectiveness of his attorney prejudiced his

defense.    'The defendant must show that there is a reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different.'"          Id. at 279-

80 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at

2068, 80 L. Ed. 2d at 698).

       "Counsel cannot be faulted for failing to expend time or

resources analyzing events about which they were never alerted."



4
  Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), adopted in State v. Fritz, 105 N.J. 42 (1987).


                                    10                               A-0351-15T2
State v. DiFrisco, 174 N.J. 195, 228 (2002).    "Counsel's actions

are usually based, quite properly . . . on information supplied

by the defendant.   In particular, what investigation decisions are

reasonable depends critically on such information."    Strickland,

supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695-

96 (1984).   As the PCR record is devoid of proof that defendant's

trial counsel was or could have been aware of the content of Steven

Barr's certification predicated upon its timing, the claim of

ineffective assistance is wholly without merit.

     Defendant's remaining arguments are without sufficient merit

to warrant discussion in a written opinion.    R. 2:11-3(e)(2).

     Affirmed.




                                11                          A-0351-15T2
