                                NOT FOR PUBLICATION WITHOUT THE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-2234-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

STANLEY RAY,

     Defendant-Appellant.
____________________________

                    Submitted November 27, 2018 – Decided January 29, 2019

                    Before Judges Fisher and Hoffman.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Passaic County, Indictment No. 99-04-0384.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Richard Sparaco, Designated Counsel;
                    William P. Welaj, on the brief).

                    Camelia M. Valdes, Passaic County Prosecutor,
                    attorney for respondent (Christopher W. Hsieh, Chief
                    Assistant Prosecutor, of counsel and on the briefs).

                    Appellant filed a pro se supplemental brief.

PER CURIAM
         Defendant appeals from the Law Division order denying his petition for

post-conviction relief (PCR) without an evidentiary hearing. We affirm because

defendant's petition is time barred under Rule 3:22-12(a)(1) and otherwise lacks

merit.

         We summarize the relevant facts elicited at defendant's trial, which we set

forth at length in our opinion on direct appeal. State v. Ray, Docket No. A-

1011-02 (App. Div. Nov. 8, 2004). On January 1, 1999, a fight occurred

between Mark Chandler and Ronald Green, Frederic Pate, and Melvin Simmons.

In the fight, Chandler sustained a broken arm, jaw, and rib.

         Jammal Manning did not witness the fight, but drove defendant home. A

few days later, Chandler's sister, Keisha, and their aunt Camilia Jones, went to

locate the man who injured her brother. Keisha and Jones saw defendant at a

payphone, and defendant asked about Chandler and the men who beat him.

Keisha described defendant as a "good friend of her brother's."

         Defendant got into the backseat of Keisha's car and stated he wanted to

get dropped off at Broadway. As they drove, Keisha spotted Manning and

stopped to talk to him. As they spoke, Keisha saw Green walking down the

street. They began to argue, and defendant exited the vehicle. Keisha urged




                                                                            A-2234-17T4
                                          2
defendant to fight Green. Rather than fight Green, defendant took out a gun and

shot and killed Green.

      Police arrested defendant in North Carolina a few days later. A grand jury

indictment charged defendant with murder, possession of a weapon for an

unlawful purpose, and unlawful possession of a weapon. At defendant's trial in

2001, Keisha, Jones, and Manning identified defendant as the shooter.

Defendant did not testify. After the jury found defendant guilty of all charges,

the trial court sentenced defendant to an aggregate prison term of seventy years,

with thirty years of parole ineligibility. We affirmed defendant's conviction and

sentence on direct appeal in November 2004.

      In February 2017, more than fifteen years after his sentencing, defendant

filed the petition under review. On November 9, 2017, Judge Sohail Mohammed

denied the petition and issued a written decision finding that defendant's petition

was both untimely and substantively without merit. The judge determined that

defendant's PCR petition was procedurally deficient because he filed it well

beyond the five-year time limit and that he failed to assert facts indicating the

delay was due to excusable neglect in order to relax the time bar prescribed by

Rule 3:22-12(a)(1)(A). Notwithstanding the time bar, the judge then addressed




                                                                           A-2234-17T4
                                        3
the merits of defendant's petition and found that he failed to demonstrate he

received ineffective assistance of counsel.

      This appeal followed, with defendant raising the following arguments:

      POINT I:

      THE POST-CONVICTION RELIEF COURT ERRED IN
      DENYING THE DEFENDANT'S PETITION FOR POST-
      CONVICTION RELIEF, IN PART, ON PROCEDURAL
      GROUNDS PURSUANT TO RULE 3: 22-12 (a) (1).

      POINT II:

      THE POST-CONVICTION RELIEF COURT ERRED IN
      DENYING THE DEFENDANT'S PETITION FOR POST-
      CONVICTION RELIEF WITHOUT AFFORDING HIM AN
      EVIDENTIARY HEARING TO FULLY ADDRESS HIS
      CONTENTION THAT HE FAILED TO RECEIVE
      ADEQUATE LEGAL REPRESENTATION FROM TRIAL
      COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO
      PURSUE AN ALIBI DEFENSE ON HIS BEHALF.

            A. FACTUAL BACKGROUND

            B. THE POST-CONVICTION RELIEF COURT
               ERRED BY FAILING TO CONDUCT AN
               EVIDENTIARY HEARING TO ADDRESS THE
               DEFENDANT'S CONTENTION THAT HE DID
               NOT     RECEIVE   ADEQUATE    LEGAL
               REPRESENTATION FROM TRIAL COUNSEL
               AS A RESULT OF COUNSEL'S FAILURE TO
               THOROUGHLY       INVESTIGATE     HIS
               POTENTIAL ALIBI DEFENSE AND UTILIZE
               HIS SISTER AS AN ALIBI WITNESS TO
               ESTABLISH REASONABLE DOUBT IN THE
               STATE'S CASE.

                                                                      A-2234-17T4
                                        4
In addition, defendant submitted a pro se brief raising the following additional

arguments:

      POINT I

      THE PCR COURT ERRED IN NOT FINDING THAT THE
      STATE VIOLATED BRADY V. MARYLAND, 373 U.S. 83
      (1963), AND THE DISCOVERY RULE BY SUPPRESSING
      EVIDENCE FAVORABLE TO THE DEFENDANT, I.E.,
      THE WITNESSES['] CRIMINAL HISTORIES/RAP
      SHEETS, THUS VIOLATING DEFENDANT'S RIGHT TO
      DUE PROCESS OF LAW.

      POINT II

      THE PCR COURT ERRED IN DENYING PETITIONER AN
      EVIDENTIARY HEARING TO DETERMINE THE
      MERITS OF HIS CLAIM THAT TRIAL COUNSEL WAS
      INEFFECTIVE IN FAILING TO ADVISE HIM OF HIS
      CONSTITUTIONAL RIGHT TO TESTIFY IN HIS OWN
      DEFENSE.

      POINT III

      THIS MATTER MUST BE REMANDED FOR A PLENARY
      HEARING BECAUSE DEFENDANT ESTABLISHED A
      PRIMA FACIE CASE THAT TRIAL COUNSEL'S
      FAILURE TO IMPEACH THE CREDIBILITY OF THE
      STATE'S WITNESSES KEISHA CHANDLER, CAMILIA
      JONES AND JAMMAL MANNING ON THE GROUND
      THAT ALL THREE WITNESSES HAD PRIOR CRIMINAL
      RECORDS AT THE TIME THEY MADE THEIR
      ORIGINAL STATEMENTS TO THE POLICE AND AT
      THETIME THEY TESTIFIED AT TRIAL CONSTITUTED
      INEFFECTIVE ASSISTANCE OF COUNSEL.


                                                                        A-2234-17T4
                                       5
POINT IV

THE LOWER COURT ERRED IN DENYING
DEFENDANT'S    PETITION   WITHOUT   ORAL
AR[G]UMENT. THUS, THE LOWER COURT MUST BE
REVERSED.

POINT V

DEFENDANT REASSERTS ALL OTHER ISSUES RAISED
IN POST[-]CONVICTION RELIEF.

    1. The State's failure to turn over Jammal Manning's
       second statement in which he identified defendant as
       the shooter, violated defendant's right to due process
       of law.

    2. Defense counsel's failure to impeach the credibility
       of the State's principal witnesses against
       defendant,[namely] Keisha Chandler, Camilia
       Jones, and Jammal Manning, on the ground that all
       three witnesses had prior criminal records at the time
       they made their original statements to the police and
       at the time they testified at trial, constituted
       ineffective assistance of counsel, although omission
       is also attributable to the failure of the prosecution
       to afford defense with a list of the records of
       criminal convictions of the witnesses it called to
       testify against defendant. Whether, however, the
       omission is ascribable primarily to defense counsel's
       incompetence or the State's failure to provide the
       discovery material required of it by Rule, its effect
       in either event was to deprive defendant of his
       constitutional right to adequate representation of
       counsel, of his right to meaningfully confront the
       witnesses against him, and of his right to due process
       of law.


                                                                A-2234-17T4
                               6
             3. The cumulative impact of exculpatory evidence
                suppressed by the State was material, in violation of
                defendant's right, and requires reversal of his murder
                conviction.

             4. The failure of the trial court to merge the [u]nlawful
                possession of a weapon with the murder count
                constitutes an illegal sentence-requiring merger.

      After carefully considering the record and the briefs, we conclude

defendant's arguments lack sufficient merit to warrant extended discussion in a

written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated

by Judge Mohammed in his cogent written opinion. We add the following

comments.

      Our court rules preclude 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). 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).

      Under Rule 1:1-2(a), a court may disregard the time bar when the

defendant demonstrates an injustice by a preponderance of the credible

                                                                             A-2234-17T4
                                         7
evidence. State v. Mitchell, 126 N.J. 565, 579 (1992). However, courts only

relax the time bar in extraordinary or exceptional circumstances, considering

"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." Id. at 580. "Absent compelling, extenuating

circumstances, the burden of justifying a petition filed after the five-year period

will increase with the extent of the delay." Ibid.

      Defendant contends he demonstrated excusable neglect, and rigid

enforcement of the time bar will result in a fundamental injustice. Specifically,

he claims the trial court and counsel failed to advise him he could file a PCR

petition within five years of his conviction.

      Defendant’s sentencing occurred in November 2001. He did not file his

PCR petition until February 2017, more than fifteen years later, and well beyond

the time bar. Moreover, the court and trial counsel had no obligation to advise

defendant of the PCR time limitations or the ability to file a PCR petition in

2001. Defendant’s ignorance of the law does not constitute excusable neglect.

State v. Murray, 162 N.J. 240, 246 (2000). Therefore, defendant failed to show

his delay was due to excusable neglect.




                                                                           A-2234-17T4
                                        8
      We also agree with Judge Mohammed that, regardless of the time bar,

defendant failed to satisfy his burden to show he received ineffective assistance

of counsel. In order to establish a prima facie case of ineffective assistance of

counsel, a defendant must satisfy the two-prong test articulated in Strickland v.

Washington, 466 U.S. 668, 687 (1984), and adopted by our Supreme Court in

State v. Fritz, 105 N.J. 42, 58 (1987). "First, the defendant must show . . . that

counsel made errors so serious that counsel was not functioning as the 'counsel'

guaranteed . . . by the Sixth Amendment."        Fritz, 105 N.J. at 52 (quoting

Strickland, 466 U.S. at 687). The defendant must then show that counsel's

deficient performance prejudiced the defense. Ibid. To show prejudice, the

defendant must establish by "a reasonable probability" that the deficient

performance "materially contributed to defendant's conviction . . . ." Id. at 58.

      "A defendant shall be entitled to an evidentiary hearing only upon the

establishment of a prima facie case in support of post-conviction relief." R.

3:22-10(b).   "To establish such a prima facie case, the defendant must

demonstrate a reasonable likelihood that his or her claim will ultimately succeed

on the merits." State v. Marshall, 148 N.J. 89, 158 (1997). The court must view

the facts "in the light most favorable to defendant." Ibid.




                                                                          A-2234-17T4
                                        9
      Here, defendant argues that trial counsel was ineffective for failing to

investigate and present an alleged alibi witness. "Failure to investigate an alibi

defense is a serious deficiency that can result in the reversal of a conviction.

Indeed, 'few defenses have greater potential for creating reasonable doubt as to

a defendant's guilt in the minds of the jury.'" State v. Porter, 216 N.J. 343, 353

(2013) (citing Mitchell, 149 N.J. Super. at 262). However, "'[w]hen a petitioner

claims his trial attorney inadequately investigated his case, he must assert the

facts that an investigation would have revealed, supported by affidavits or

certifications based upon the personal knowledge of the affiant or the person

making the certification.'" Ibid. (quoting State v. Cummings, 321 N.J. Super.

154, 170 (App. Div. 1999)); see R. 3:22-10(c).

      Defendant claims his attorney failed to speak with his sister about an alibi;

however, defendant did not submit a certification or affidavit from his sister nor

did he set forth her anticipated testimony. Thus, defendant failed to "assert the

facts that an investigation would have revealed, supported by affidavits or

certifications based upon the personal knowledge of the affiant or the person

making the certification." Cummings, 321 N.J. Super. at 170-71 (rejecting a

petitioner's "bare assertion of an alibi" where he "has not supplied an affidavit

or certification of [the witness] that would support petitioner's alibi"); cf. Porter,


                                                                              A-2234-17T4
                                        10
216 N.J. at 350 (defendant supported alibi argument with affidavits from himself

and the alibi witness).

      We further agree with Judge Mohammed's rejection of defendant's

remaining contentions without an evidentiary hearing. "[I]n order to establish a

prima facie claim, a petitioner must do more than make bald assertions." Id. at

355 (quoting Cummings, 321 N.J. Super. at 170). Because defendant failed to

"allege specific facts and evidence supporting his allegations," they "'are too

vague, conclusory, or speculative to warrant an evidentiary hearing.'" Ibid.

(quoting Marshall, 148 N.J. at 158).

      Affirmed.




                                                                        A-2234-17T4
                                       11
