                                NOT FOR PUBLICATION WITHOUT THE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-2067-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

VAMBAH SHERIFF, a/k/a
SEKOU M. SHERIFF,

     Defendant-Appellant.
_________________________

                    Submitted December 10, 2019 – Decided January 21, 2020

                    Before Judges Accurso and Gilson.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 10-09-2090.

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

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Caroline C. Galda,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Vambah Sheriff appeals from an October 19, 2018 order

denying his petition for post-conviction relief (PCR) following oral argument,

but without an evidentiary hearing. We affirm because defendant's petition was

time-barred under Rule 3:22-12(a)(1).

      Defendant and F.B. got into a physical fight. 1 F.B. testified that he

confronted defendant when he saw defendant and his roommate, K.D., smoking

marijuana outside his house.        During the confrontation, F.B. was stabbed

multiple times with a sharp object. The police responded, found F.B. bleeding,

and F.B. was taken to the hospital where he was treated for numerous puncture

wounds and a collapsed lung.

      Defendant and K.D. were charged with conspiracy to commit aggravated

assault, aggravated assaults, and weapons offenses. Prior to trial, defendant

moved to sever his trial from the trial of K.D. The trial court conducted a

hearing, took testimony from K.D., and denied the motion, finding that K.D.

was prepared to testify at a joint trial or a separate trial.

      Defendant and K.D. were then tried together. Defendant elected to testify

and claimed that F.B. attacked him, he acted in self-defense, and did not know



1
   We use initials for the victim and certain witnesses to protect their privacy
interests.
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                                          2
how F.B. got cut. K.D., thereafter, elected not to testify. The jury convicted

defendant of third and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7)

and N.J.S.A. 2C:12-1(b)(3);2 third-degree possession of a weapon for unlawful

purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a

weapon, N.J.S.A. 2C:39-5(d).

      On February 10, 2012, defendant was sentenced to an aggregate prison

term of four years.     Specifically, the fourth-degree assault and weapons

convictions were merged, and defendant was sentenced to concurrent prison

terms of four years on the third-degree aggravated assault and weapon

convictions.

      Defendant appealed, but in 2014 we affirmed his convictions and

sentence. State v. Sheriff, No. A-3505-11 (App. Div. Mar. 24, 2014). That same

year, the Supreme Court denied defendant's petition for certification. State v.

Sheriff, 220 N.J. 42 (2014).

      On February 13, 2018, defendant filed a petition for PCR, arguing that his

trial and appellate counsel were ineffective. Defendant was assigned PCR

counsel and the PCR court heard oral argument on October 19, 2018. That same


2
   The judgment of conviction identifies both aggravated assault convictions as
third-degree offenses. A conviction under N.J.S.A. 2C:12-1(b)(3), however, is
a fourth-degree crime.
                                                                        A-2067-18T3
                                       3
day, the court entered an order denying defendant's petition and explained the

reasons for the ruling on the record. The PCR court found that defendant's

petition was time-barred, without excusable neglect. The court also analyzed

the substance of defendant's arguments and found that he failed to make a prima

facie showing of ineffective assistance of trial or appellate counsel.

      On this appeal, defendant presents three arguments for our consideration:

            POINT I – DEFENDANT'S PCR PETITION SHOULD
            NOT HAVE BEEN TIME-BARRED.

            POINT II – THIS MATTER MUST BE REMANDED
            FOR AN EVIDENTIARY HEARING BECAUSE
            DEFENDANT ESTABLISHED A PRIMA FACIE
            CASE       OF    APPELLATE     COUNSEL'S
            INEFFECTIVENESS FOR FAILING TO RAISE THE
            DENIAL OF HIS SEVERANCE MOTION.

            POINT III – THIS MATTER MUST BE REMANDED
            FOR FINDINGS OF FACT AND CONCLUSIONS OF
            LAW REGARDING DEFENDANT'S CLAIM THAT
            APPELLATE COUNSEL WAS INEFFECTIVE FOR
            NOT RAISING THE DENIAL OF HIS SEVERANCE
            MOTION.

      Having conducted a de novo review, we reject defendant's arguments

because his petition was time-barred. Defendant made no showing of excusable

neglect. Just as importantly, defendant made no showing that enforcement of

the time-bar would result in a fundamental injustice.



                                                                         A-2067-18T3
                                        4
      Rule 3:22-12(a)(1) precludes PCR petitions filed more than five years

after entry of a judgment of conviction unless the delay was "due to de fendant's

excusable neglect and . . . 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." Our Supreme Court has stated that "[t]he time bar

should be relaxed only 'under exceptional circumstances' because '[a]s time

passes, justice becomes more elusive and the necessity for preserving finality

and certainty of judgments increases.'" State v. Goodwin, 173 N.J. 583, 594

(2002) (second alteration in original) (quoting State v. Afanador, 151 N.J. 41,

52 (1997)). Moreover, we have held that when a first PCR petition is filed more

than five years after the date of entry of the judgment of conviction, the PCR

court should examine the timeliness of the petition and defendant must submit

competent evidence to satisfy the standards for relaxing the rule's time

restriction. State v. Brown, 455 N.J. Super. 460, 470 (App. Div. 2018).

      To establish "excusable neglect," a defendant must demonstrate "more

than simply . . . a plausible explanation for a failure to file a timely PCR

petition." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). Factors

to be considered include "the extent and cause of the delay, the prejudice to the

State, and the importance of the [defendant's] claim in determining whether


                                                                             A-2067-18T3
                                         5
there has been an 'injustice' sufficient to relax the time limits." Afanador, 151

N.J. at 52 (quoting State v. Mitchell, 126 N.J. 565, 580 (1992)).

      Defendant was sentenced on February 10, 2012. His petition for PCR was

filed on February 13, 2018, more than one year beyond the five-year time limit.

Defendant contends that there was excusable neglect for the late filing because

he was moved among five jails and prisons while incarcerated, through those

moves he lost or was not provided with all of his legal papers, and he did not

"realize" that a PCR petition had to be filed within five years of the date of his

convictions.

      We reject defendant's arguments concerning excusable neglect for two

reasons. First, ignorance of the law is not excusable neglect. See State v.

Murray, 162 N.J. 240, 246 (2000) (holding that defendant's assertion that he

lacked sophistication in the law did not warrant relaxing the requirements of

Rule 3:22-12).

      Second, defendant's contentions regarding excusable neglect are bare

assertions without factual support. Defendant does not identify what legal

papers he did not possess. In March 2014, however, he did know that we had

denied his appeal because he filed a petition for certification to the Supreme

Court. Moreover, by October 2014, he knew his petition to the Supreme Court


                                                                          A-2067-18T3
                                        6
had been denied.     Thus, by October 2014, defendant knew of the alleged

ineffective assistance of both his trial and appellate counsel. Nevertheless, he

waited over three years until February 2018 to file his PCR petition. He has

provided no adequate explanation of why he waited beyond February 2016 to

file his PCR petition.

      Defendant has also failed to show a reasonable probability that

enforcement of the time-bar would result in a fundamental injustice. Before us,

defendant argues that his appellate counsel was ineffective in failing to raise on

his direct appeal the denial of his motion to sever. In that regard, he contends

that he was prejudiced because his co-defendant, K.D., would have provided

credible testimony in support of his self-defense claim if their trials had been

severed. The record at trial, however, establishes that defendant elected to

testify before K.D. made an election concerning whether he would or would not

testify. Moreover, he made no showing that testimony from K.D. would have

rebutted F.B.'s testimony and the evidence of F.B.'s injuries.

      Finally, there was no showing that required an evidentiary hearing on

defendant's PCR petition. A defendant is entitled to an evidentiary hearing if he

establishes a prima facie case in support of the PCR petition. R. 3:22-10(b). To

establish a claim of ineffective assistance of counsel, a defendant must satisfy a


                                                                          A-2067-18T3
                                        7
two-part test: (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); State v. Fritz, 105 N.J. 42, 58-59 (1987).

      The record simply does not support that defendant had a viable argument

that his motion to sever was improperly denied. K.D.'s testimony at the motion

to sever established that he was prepared to give testimony at that time both at

a joint or separate trial. Accordingly, the trial judge appropriately denied the

motion. It was only thereafter at trial that K.D. elected not to testify. Critically,

however, that election was made after defendant had elected to testify. Just as

importantly, it would be speculation to try to predict if K.D.'s testimony would

have had any influence on the outcome of the trial. See State v. Porter, 216 N.J.

343, 355 (2013) ("[A] defendant is not entitled to an evidentiary hearing if the

'allegations are too vague, conclusory, or speculative to warrant an evidentiary

hearing[.]'" (second alteration in original) (quoting State v. Marshall, 148 N.J.

89, 158 (1997))).

      Affirmed.




                                                                             A-2067-18T3
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