                                      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                                NOT FOR PUBLICATION WITHOUT THE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-4700-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CLARENCE L. NEAL,
a/k/a LEE NEAL,

     Defendant-Appellant.
___________________________

                   Submitted January 16, 2020 – Decided February 3, 2020

                   Before Judges Alvarez and Nugent.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Indictment No. 99-11-
                   1272.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Abby P. Schwartz, Designated Counsel, on
                   the briefs).

                   Christopher L.C. Kuberiet, Acting Middlesex County
                   Prosecutor, attorney for respondent (David Michael
                   Liston, Special Deputy Attorney General/Acting
                   Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant, Clarence L. Neal, appeals from an order that denied without

an evidentiary hearing his first petition for post-conviction relief (PCR). He

argues:

            DEFENDANT WAS DENIED DUE PROCESS WHEN
            THE   JUDGE    AND  THE    PROSECUTOR
            OVERSTEPPED      THEIR      RESPECTIVE
            ALLOWABLE ROLES AND ADDED COMMUNITY
            SUPERVISION FOR LIFE TO DEFENDANT'S
            JUDGMENT    OF   CONVICTION   WITHOUT
            NOTIFYING DEFENDANT OR HIS LAWYER, IN
            VIOLATION OF DEFENDANT'S RIGHT TO DUE
            PROCESS.

For the reasons that follow, we affirm.

      Following defendant's March 2000 guilty plea to second-degree sexual

assault, the trial court sentenced him in August 2000 to a prison term of seven

years with two years of parole ineligibility. The court also ordered defendant to

comply with the registration requirements of Megan's Law, N.J.S.A. 2C:7-2.

During the plea colloquy, defense counsel informed defendant he would be

sentenced to Community Supervision for Life (CSL):1

            [Counsel]: You understand that, you are going to be
            subject to a sentence of [CSL]?

1
   N.J.S.A. 2C:43-6.4 was amended by L. 2003 c. 267, effective January 14,
2004. The amendment included the title change from Community Supervision
for Life to Parole Supervision for Life.
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                                          2
            [Defendant]: Yes, ma'am.

            [Counsel]: And you understand, if you violate any
            conditions of community supervision, you will be
            charged with a felony offense, carrying a term of
            incarceration up to 18 months?

            [Defendant]: (Whereupon defendant shakes his head.)

     Defense counsel later questioned defendant about the plea forms they had

reviewed:

            [Counsel]: Now, we also went through another form,
            called [CSL]; right?

            [Defendant]: Yes, ma'am.

            [Counsel]: Although you didn't sign that, because it is
            not part of the plea agreement. We went over page
            number one?

            [Defendant]: Yes, ma'am.

            [Counsel]: And the back page; right?

            [Defendant]: Yes, ma'am.

            [Counsel]: In fact, you wanted me to stop going over
            it, because it got boring; right?

            [Defendant]: Yes, ma'am.

            [Counsel]: But we did go through each and every point
            on the page?

            [Defendant]: Yes, ma'am.


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                                       3
The pleas forms defendant signed explained CSL:

     4.    Community Supervision for Life

           a)    Do you understand that if you are
           pleading guilty to the crime of aggravated
           sexual assault, sexual assault, aggravated
           criminal sexual contact, kidnapping
           pursuant to 2C:13-lc(2), endangering the
           welfare of a child by engaging in sexual
           conduct which would impair or debauch
           the morals of the child pursuant to 2C:24-
           4a, luring, or an attempt to commit any
           such offense, the Court, in addition to any
           other sentence, will impose a special
           sentence of [CSL]?

           b)    Do you understand that if you violate
           the special sentence of community
           supervision you may be charged with a
           fourth[-]degree crime?

           c)    Do you understand that if you violate
           a special sentence of community
           supervision by committing murder, felony
           murder,      aggravated      manslaughter,
           manslaughter,       aggravated      assault,
           kidnapping, enticing child into a motor
           vehicle, structure or isolated area,
           aggravated sexual assault or sexual assault,
           aggravated criminal sexual contact or
           sexual contact, endangering the welfare of
           children, second[-]degree burglary or
           unlawful possession of a firearm with
           intent to use it unlawfully against the
           person or property of another, if you are
           convicted of that crime you will receive an
           extended term of imprisonment?

                                                          A-4700-17T4
                                4
Defendant circled "yes" after each question.     In sections 4 b) and c), the

typewritten word "service" in the phrase "community service for life" was

crossed out in pen and the word "supervision" was handwritten above the

typewritten word "service."

      Notwithstanding that the court told defendant he would be sentenced to

CSL, and notwithstanding the same information in the plea forms defense

counsel discussed with defendant, the court omitted during the senten cing

proceeding mention of CSL and omitted to include CSL on the judgment of

conviction.

      The trial court amended the judgment of conviction four times.        The

second time, on September 4, 2003, the court added: "***COMMUNITY

SUPERVISION FOR LIFE APPLIES TO THIS DEFENDANT***[.]" The

court did not notify defendant, who was incarcerated, of its intent to amend the

judgment of conviction or the amendment.

      Defendant was released from prison on March 12, 2004. Eight days

earlier, he signed a "Community Supervision for Life" document.             The

document's first paragraph stated:

              I understand that pursuant to N.J.S.A. 2C:436.4 my
              sentence includes a special sentence of [CSL]. I
              understand that during the service of the special
              sentence of [CSL] I shall be under the supervision of

                                                                        A-4700-17T4
                                       5
            the Division of Parole, State Parole Board and shall be
            subject to the following general conditions as
            established by the State Parole Board.

      This paragraph was followed by numerous conditions. On the third page,

below the typewritten declarations "I understand that a violation of a condition

specified above without good cause constitutes a crime of the fourth degree" and

"I hereby acknowledge receiving this date a copy of the above conditions[,]"

defendant signed the document. His signature was witnessed. The date was

March 4, 2004.

      Following his release from prison, defendant violated conditions of CSL

five times and pleaded guilty to either that or a related fourth-degree offense.

The first violation occurred on April 6, 2008, the last on April 24, 2015.

Defendant moved to dismiss two 2015 indictments based upon double jeopardy,

due process and the "State's failure to sentence the defendant to Community

Supervision for Life[.]" The trial court denied the motion. Defendant did not

appeal.

      Seventeen years after pleading guilty, defendant filed a PCR petition on

June 6, 2017.    He argued, among other contentions, that the trial court's

numerous changes to the judgment of conviction, without notice to him and




                                                                        A-4700-17T4
                                       6
without a hearing, violated due process. Following the assignment of counsel,

defendant amended and supplemented his petition.

      The trial court denied defendant's PCR petition. After recounting the

events that had occurred between defendant's sentencing and the filing of his

PCR petition, the court noted defendant never appealed any of the intervening

convictions stemming from his violation of the conditions of CSL. The court

further noted that in 2015 and 2017, defendant "attempted to dismiss the last

two [i]ndictments on the grounds that the amendments to the [judgment of

conviction] were unconstitutional.      Those [m]otions were denied by the

respective trial [j]udges at that time. And again, no appeal has been filed."

      The court determined that even if defendant were not aware of his rights

until 2010, considered by the court to be "the most generous reading of the time

line," he did not file his PCR petition until 2017, approximately seven years

later. The court added that defendant had offered "no compelling evidence of

excusable neglect, or showing of a fundamental injustice, which both have to be

shown in order for the [c]ourt to waive the time bar." The court concluded the

petition was time-barred.

      The court continued and addressed the merits of the petition. The court

found defendant had not shown his counsel was ineffective. In fact, during the


                                                                          A-4700-17T4
                                        7
plea colloquy, counsel carefully explained to defendant that he would be placed

on CSL. Counsel also explained the consequences of violating the conditions

of such supervision. The trial court noted defendant's "beef, so to speak," was

not with counsel but rather with the judge who omitted checking a box on the

judgment of conviction.     The omission was detected and remedied before

defendant had completed serving his sentence. The court determined that under

such circumstances the correction was permissible under the law.

      This appeal followed. We affirm, substantially for the reasons expressed

by the trial court. Generally, first PCR petitions may not be filed more than five

years after the date of entry of the judgment of conviction being challenged. R.

3:22-12(a)(1). Exceptions include "excusable neglect and . . . 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); and, the petition is filed within one year of the date on which the

factual predicate for relief was discovered, R. 3:22-12(a)(1)(B) and (a)(2)(B).

      Here, the trial court did not err when it determined defendant had not

demonstrated either excusable neglect of the possibility of fundamental

injustice. This is particularly so given that when defendant pled guilty he was

quite clearly informed that the sentence would include CSL, which was


                                                                          A-4700-17T4
                                        8
mandatory. In addition, in his brief defendant acknowledges he became aware

of what he characterizes as his "resentencing" when he was released from prison.

Even though he was released from prison in March 2004, defendant did not file

the petition until 2017. In the interim, he had raised the issue in motions to

dismiss indictments charging him with violations of CSL but did not appeal the

denial of those motions.

      We have considered defendant's remaining arguments and found them to

be without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

      Affirmed.




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