                                      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                                NOT FOR PUBLICATION WITHOUT THE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-0140-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JASON M. BRUNELL,

     Defendant-Appellant.
_________________________

                    Submitted November 13, 2019 – Decided December 17, 2019

                    Before Judges Fisher, Accurso, and Gilson.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Sussex County, Indictment No. 09-08-0357.

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

                    Francis A. Koch, Sussex County Prosecutor, attorney
                    for respondent (Shaina Brenner, Assistant Prosecutor,
                    of counsel and on the brief).

PER CURIAM
      Defendant Jason Brunell appeals from an order denying his petition for

post-conviction relief (PCR), which was entered following oral arguments, but

without an evidentiary hearing. We affirm because the petition was time-barred

under Rule 3:22-12(a)(1) and otherwise lacked merit.

                                        I.

      In 2009, defendant was charged with second-degree sexual assault,

N.J.S.A. 2C:14-2(c)(4); third-degree endangering the welfare of a child,

N.J.S.A. 2C:24-4(a); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-

3(b); and two counts of third-degree witness tampering, N.J.S.A. 2C:28-5(a). In

May 2010, defendant pled guilty to fourth-degree criminal sexual contact. As

part of the plea agreement, the State agreed to recommend that he be sentenced

to two years of probation and that the other charges be dismissed.

      Before pleading guilty, defendant testified that he (1) had reviewed the

charges against him with his counsel; (2) had reviewed the discovery with his

counsel; (3) had discussed potential defenses with his counsel; (4) was satisfied

with his counsel's legal services; (5) understood the crime to which he was

pleading guilty; (6) had reviewed, initialed, and signed the plea forms, including

a form explaining that he was subject to registration as a sex offender under




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                                        2
Megan's Law, N.J.S.A. 2C:7-1 to -23; and (7) was pleading guilty of his own

free will and no one was forcing or coercing him into pleading guilty.

      Defendant then admitted that in 2007 he had hugged and touched the

victim's breasts to sexually gratify himself. He also acknowledged the victim

was then between the ages of thirteen and sixteen years old and he was at least

four years older than the victim. Indeed, the record established that defendant

was twenty-seven years old when the crime occurred.

      On July 9, 2010, defendant was sentenced in accordance with the plea

agreement to two years of probation. The sentencing judge expressly informed

defendant that he had five years within which he could file a petition for PCR.

      Defendant did not file a direct appeal. Instead, over seven years later, on

August 15, 2017, defendant filed a PCR petition. He was assigned PCR counsel

who filed supplemental papers on his behalf. In his petition and supplemental

certification, defendant contended that (1) he never received a copy of the

discovery from his trial attorney; (2) he did not know "everything" he was

accused of; (3) the victim's mother had called him and told him that she knew

he was not guilty, but his counsel failed to follow up with her to establish a

defense; (4) the allegations against him were all based on incredible hearsay; (5)

his counsel pushed and scared him into pleading guilty; and (6) he pled guilty


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                                        3
because his counsel explained the plea agreement and charges differently from

the actual terms of the agreement.

      On May 15, 2018, Judge N. Peter Conforti heard oral argument on

defendant's petition.   Judge Conforti had taken defendant's guilty plea and

sentenced defendant. That same day, Judge Conforti entered an order denying

defendant's PCR petition and explained the reasons for his ruling on the record.

In short, Judge Conforti found the petition time-barred and defendant had shown

no excusable neglect for filing the petition late. The judge also pointed out that

all of defendant's contentions about the ineffective assistance of his trial counsel

were rebutted by the record, in particular by the testimony he had given when

he pled guilty and information he received when sentenced.

                                        II.

      On appeal, defendant makes three arguments, which he articulates as

follows:

            POINT I – THE TRIAL COURT MISAPPLIED THE
            LAW IN DENYING THE DEFENDANT'S PETITION
            FOR POST CONVICTION RELIEF, IN PART, ON
            PROCEDURAL GROUNDS, PURSUANT TO RULE
            3:22-12

            POINT II – THE TRIAL COURT MISAPPLIED THE
            LAW IN DENYING THE DEFENDANT'S PETITION
            FOR POST-CONVICTION RELIEF WITHOUT
            AFFORDING HIM AN EVIDENTIARY HEARING

                                                                            A-0140-18T1
                                         4
             TO FULLY ADDRESS HIS CONTENTION THAT HE
             WAS     PROVIDED    WITH   INADEQUATE
             ASSISTANCE FROM TRIAL COUNSEL AS HE
             FAILED TO RECEIVE ADEQUATE LEGAL
             ADVICE AS TO THE PENAL CONSEQUENCES OF
             HIS PLEA

             POINT III – THE TRIAL COURT MISAPPLIED THE
             LAW IN DENYING THE DEFENDANT'S PETITION
             FOR POST-CONVICTION RELIEF WITHOUT
             AFFORDING HIM AN EVIDENTIARY HEARING
             TO FULLY ADDRESS HIS CONTENTION THAT HE
             SHOULD BE PERMITTED TO WITHDRAW HIS
             PLEA BARGAIN TO CORRECT A MANIFEST
             INJUSTICE

      Where, as here, a PCR court does not hold an evidentiary hearing, we

"conduct a de novo review of both the factual findings and legal conclusions of

the PCR court." State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016)

(quoting State v. Harris, 181 N.J. 391, 421 (2004)). The record here establishes

that defendant's PCR petition is time-barred and lacks substantive merit.


                                         A.

      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 defendant'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." R. 3:22-12(a)(1)(A). Our Supreme Court has stated

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                                         5
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 the defendant must "submit competent evidence to satisfy the

standards for relaxing the rule's time restrictions." 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

there has been an 'injustice' sufficient to relax the time limits." Afanador, 151

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

      Defendant's judgment of conviction was entered on July 9, 2010. He filed

his petition for PCR over seven years later on August 15, 2017. Furthermore,


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                                        6
he established no excusable neglect for that late filing. As already noted, at

sentencing he was told he had five years to file a PCR petition. Defendant argues

that, despite the court's advice to him, he should be excused because his plea

counsel did not follow up and remind him of that five year limitation. That

argument lacks merit.

                                             B.

      Defendant is also unable to show that enforcement of the time bar would

result in a reasonable probability of fundamental injustice, as he has not

demonstrated a prima facie case of ineffective assistance of plea counsel. To

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

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); accord State v. Fritz, 105 N.J. 42, 58

(1987) (adopting the Strickland test).

      "To set aside a guilty plea based on ineffective assistance of counsel, a

defendant must show . . . 'that there is a reasonable probability that, but for

counsel's errors, [defendant] would not have pled guilty and would have insisted

on going to trial.'" State v. DiFrisco, 137 N.J. 434, 457 (1994) (alteration in


                                                                          A-0140-18T1
                                         7
original) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).           Moreover,

defendant must make those showings by presenting more than "bald assertions

that he [or she] was denied the effective assistance of counsel."          State v.

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

      Contrary to the assertions in defendant's belated certifications, the record

establishes that none of the asserted grounds for ineffective assistance of plea

counsel has merit. In taking defendant's plea, Judge Conforti confirmed that

defendant had reviewed the charges and discovery with his counsel, understood

his potential defenses, understood the charge to which he was pleading guilty,

and he was pleading guilty freely and voluntarily. Judge Conforti also went over

the plea agreement with defendant and confirmed that defendant understood that

agreement, including that he was pleading guilty to a crime that would subject

him to registration under Megan's Law.

                                         C.

      We also reject defendant's claim that the PCR court erred in not

conducting an evidentiary hearing. A defendant is entitled to an evidentiary

hearing on a PCR petition only when he establishes a prima facie case and "there

are material issues of disputed fact that cannot be resolved by reference to the

existing record . . . ." State v. Porter, 216 N.J. 343, 354 (2013) (quoting R. 3:22-


                                                                            A-0140-18T1
                                         8
10(b)).   As we have previously detailed, the existing record provided an

adequate basis for the findings that defendant did not establish a prima facie

case of ineffective assistance of counsel and, therefore, an evidentiary hearing

was not required.

      Affirmed.




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