                        NOT FOR PUBLICATION WITHOUT THE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-3225-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JERMAINE JOHNSON,
a/k/a JERMAINE RESHID,
GERMAINE JOHNSON, JR.,
JERMAYNE JOHSON, JERAMINE
JOHNSON, MAINE,

        Defendant-Appellant.

____________________________________

              Submitted July 25, 2017 – Decided October 6, 2017

              Before Judges Ostrer and Leone.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Indictment No.
              06-05-1776.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (John Douard, Assistant Deputy
              Public Defender, of counsel and on the brief).

              Mary Eva Colalillo, Camden County Prosecutor,
              attorney   for   respondent   (Maura    Murphy
              Sullivan, Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM
      Defendant Jermaine Johnson appeals the November 18, 2015

order denying his petition for post-conviction relief (PCR).          The

PCR court found that the petition was untimely under Rule 3:22-

12.   We agree, and affirm.

                                  I.

      The following facts come from the transcripts of defendant's

plea hearing and sentencing hearing.

      In 2005, defendant had sexual relations when age twenty-three

with B.Y., a fifteen-year old girl.       B.Y. gave birth to a child.

Defendant was indicted for second-degree sexual assault, N.J.S.A.

2C:14-2(c)(4),   and   third-degree    endangering   the   welfare   of   a

child, N.J.S.A. 2C:24-4(a).

      Trial counsel negotiated a plea agreement that resulted in

the dismissal of the more serious second-degree sexual assault

charge, his sentence concern, his guilty plea to the less-serious

charge of third-degree endangering the welfare of a child, and the

prosecutor's recommendation of a probationary sentence which would

be concurrent to any sentence he received on his pending charge

for second-degree unlawful possession of a handgun without a

permit, N.J.S.A. 2C:39-5(b).

      Pursuant to the plea agreement, a trial judge sentenced

defendant to five years of probation, twenty-five days in jail


                                  2                              A-3225-15T3
which defendant had already served, penalties, and assessments.

Defendant further agreed not to have any contact with B.Y. and her

family.   Defendant's January 8, 2007 Judgment of Conviction (JOC)

stated that he was sentenced to parole supervision for life (PSL).

       Defendant admitted he "was cited for a violation of parole

supervision for life" in 2011.1   Thereafter, on December 26, 2012,

and again on January 22, 2013, defendant signed a form setting

forth the "General Conditions" for "Parole Supervision for Life"

acknowledging:

           I understand that pursuant to N.J.S.A. 2C:43-
           6.4, my sentence includes a special sentence
           of parole supervision for life. I understand
           that during the service of parole supervision
           for life I shall be in the legal custody of
           the   Commissioner  of   the  Department   of
           Corrections and I shall be         under the
           supervision of the Division of Parole of the
           State Parole Board.

       On October 29, 2014, more than seven years and ten months

after his judgment of conviction, defendant filed a petition for

PCR.    After hearing oral argument, Judge John T. Kelley denied

defendant's PCR petition.   The court held that defendant's claims



1
 This apparently related to defendant's use of a condom containing
yellow liquid to defraud a drug test ordered by his parole officer.
Defendant   was   convicted   of   third-degree    defrauding   the
administration of a drug test, N.J.S.A. 2C:36-10(d), and fourth-
degree possession of an instrument or substance to defraud the
administration of a drug test, N.J.S.A. 2C:36-10(e), and was
sentenced to eighteen months in prison.

                                  3                         A-3225-15T3
were time-barred under Rule 3:22-12(a); that he had failed to

demonstrate   a   prima   facie   case    of   ineffective   assistance     of

counsel; and that his claims relating to the constitutionality of

Megan's Law were procedurally barred under Rule 3:22-4(a).

     Defendant appeals, arguing:

          POINT I - THE TIME BAR IN RULE 3:22-12 SHOULD
          BE RELAXED BECAUSE THE DELAY IN THIS CASE WAS
          DUE TO EXCUSABLE NEGLECT, AND ENFORCEMENT OF
          THE TIME BAR WOULD RESULT IN A FUNDAMENTAL
          INJUSTICE.

          POINT II - THE PETITION FOR POST-CONVICTION
          RELIEF SHOULD HAVE BEEN GRANTED, OR, AT A
          MINIMUM, AN EVIDENTIARY HEARING SHOULD HAVE
          BEEN ORDERED.

                  A.   The Record Is Sufficient To Grant
                       Mr. Johnson His Petition For PCR.

                  B.   At A Minimum, Mr. Johnson Should
                       Have Been Afforded An Evidentiary
                       Hearing, As He Had Made A Prima
                       Facie    Case    For   Ineffective
                       Assistance Of Counsel.

          POINT III - PSL IS AN                UNCONSTITUTIONAL
          VIOLATION OF DUE PROCESS             AND FUNDAMENTAL
          FAIRNESS.

                                    II.

     A PCR court need not grant an evidentiary hearing unless "'a

defendant has presented a prima facie [case] in support of post-

conviction    relief.'"     State   v.    Marshall,   148    N.J.   89,   158

(alteration in original), cert. denied, 522 U.S. 850, 118 S. Ct.

140, 139 L. Ed. 2d 88 (1997).        "To establish such a prima facie

                                     4                               A-3225-15T3
case, the defendant must demonstrate a reasonable likelihood that

his or her claim will ultimately succeed on the merits."       Ibid.

The court must view the facts "'in the light most favorable to

defendant.'"   Ibid.; accord R. 3:22-10(b).

     If the PCR court has not held an evidentiary hearing, we

"conduct a de novo review."   State v. Harris, 181 N.J. 391, 421

(2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed.

2d 898 (2005).   We must hew to that standard of review.

     To show ineffective assistance of counsel, a defendant must

satisfy the two-pronged test of Strickland v. Washington, 466 U.S.

668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted in

State v. Fritz, 105 N.J. 42, 53 (1987).   In the context of a guilty

plea, the defendant must show "that (i) counsel's assistance was

not 'within the range of competence demanded of attorneys in

criminal cases'; and (ii) 'that there is a reasonable probability

that, but for counsel's errors, [the defendant] would not have

pled guilty and would have insisted on going to trial.'"       State

v. DiFrisco, 137 N.J. 434, 457 (1994) (citation omitted) (quoting

Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 371, 88 L. Ed.

2d 203, 210 (1973)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949,

133 L. Ed. 2d 873 (1996); see also State v. Gaitan, 209 N.J. 339,

351 (2012).    Moreover, to obtain relief under the second prong,

"a petitioner must convince the court that a decision to reject

                                5                            A-3225-15T3
the plea bargain would have been rational under the circumstances."

State   v.   O'Donnell,   435   N.J.   Super.   351,   3712    (App.   Div.

2014)(quoting Padilla v. Kentucky, 559 U.S. 356, 372, 130 S. Ct.

1473, 1485, 176 L. Ed. 2d 284, 297 (2010)).

                                  III.

     Defendant cannot show a reasonable likelihood of success

because defendant's PCR petition is untimely.             See State v.

Brewster, 429 N.J. Super. 387, 398 (App. Div. 2013).            Rule 3:22-

12(a)(1) has long provided that "[n]o petition shall be filed

. . . more than 5 years" after the entry of the challenged judgment

of conviction.    Here, defendant challenges the validity of his

guilty plea underlying a judgment of conviction dated January 8,

2007.   His PCR petition was filed October 29, 2014, more than

seven years and ten months after the date of his judgment of

conviction.

     "Neither the parties nor the court may . . . enlarge the time

specified by . . . R. 3:22-12[.]"         R. 1:3-4(c).        Rule 3:22-12

permits a late filing only if the defendant "alleges facts showing

that the delay beyond said time was due to defendant's excusable

neglect and that 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.



                                   6                               A-3225-15T3
3:22-12(a)(1) (emphasis added); see R. 3:22-12(c).2    Such a claim

must be made in the verified petition, which must allege facts

sufficient to support it.   State v. Cann, 342 N.J. Super. 93, 101-

02 (App. Div.), certif. denied, 170 N.J. 208 (2001); see R. 3:22-

8.

                                 A.

     Defendant first argues that the time bar should be relaxed

due to excusable neglect because of his confusion as to whether

he was subject to Community Supervision for Life (CSL) or PSL.

     N.J.S.A. 2C:43-6.4 is a component of a series of laws commonly

referred to as Megan's Law.    Prior to 2004, it provided for CSL

as a "special sentence" designed to "protect the public from

recidivism by sexual offenders."      State v. Perez, 220 N.J. 423,

436-37 (2015).   The statute was amended effective January 14,



2
  As defendant did not file his PCR petition until October 2014,
it is governed by the current version of Rule 3:22-12, which the
Supreme Court made effective February 1, 2010.     E.g, Brewster,
supra, 429 N.J. Super. at 398 n.3.     "[C]ourt rules 'are given
retrospective application if vested rights are not thereby
disturbed.'" Shimm v. Toys from the Attic, Inc., 375 N.J. Super.
300, 304-05 (App. Div. 2005) (quoting Feuchtbaum v. Constantini,
59 N.J. 167, 172 (1971)); see also Kas Oriental Rugs, Inc. v.
Ellman, 407 N.J. Super. 538, 549-52 (App. Div.), certif. denied,
200 N.J. 476 (2009). Defendant had no vested right preventing the
Court from amending the Rule's procedures for PCR petitions. See
State v. Rose, 425 N.J. Super. 463, 468 (App. Div. 2012). Nor,
as set forth below, is it manifestly unjust to apply this version
of Rule 3:22-12. See James v. N.J. Mfrs. Ins. Co., 216 N.J. 552,
563 (2014).

                                 7                          A-3225-15T3
2004, when all references to CSL were replaced with references to

PSL.    Id. at 437.

       "[A]    close   examination   of    the   pre-   and   post-[amendment]

versions of N.J.S.A. 2C:43-6.4" shows that the amendment made

"substantive      change[s]"   to    the   CSL    post-sentence   supervisory

scheme.       Id. at 440.    For example, a person subject to CSL is

supervised as if on parole, but violation of CSL is punishable

only as a fourth-degree crime.         Id. at 441.      In other words, "the

Parole Board cannot return a defendant to prison through the

parole-revocation process."          Ibid.       Rather, the Parole Board's

only option is to "refer the matter to the county prosecutor" who

can choose whether to prosecute.           Ibid.

       By contrast, a person on PSL is placed "'in the legal custody

of the Commissioner of Corrections [and] shall be supervised by

the Division of Parole of the State Parole Board' for life." Ibid.

(quoting N.J.S.A. 2C:43-6.4(b)).             "A violation of PSL may be

prosecuted as a fourth-degree offense, N.J.S.A. 2C:43-6.4(d), but

it may also be treated as a parole violation, N.J.S.A. 2C:43-

6.4(b)."      Ibid.    Thus, the Parole Board also has the option to




                                       8                               A-3225-15T3
administratively revoke an offender's parole and send the offender

to prison without a criminal prosecution.           Ibid.3

     During     defendant's    October     3,    2006    plea    hearing,      the

prosecutor stated that under the plea bargain, "defendant has

agreed . . . that he's going to be under parole supervision for

life."   Trial counsel stated the prosecutor's representations were

"true    and   accurate."      However,    the    plea    forms    incorrectly

referenced CSL.     Additionally, at the plea hearing and the January

5, 2007 sentencing hearing the trial judge stated that defendant

would    receive   CSL.     However,   defendant's       JOC    clearly    stated

defendant was subject to PSL.

     The regrettable inconsistency regarding use of the terms CSL

and PSL do not excuse defendant's delay in filing for PCR.                 First,

defendant was aware of the inconsistent references to CSL and PSL

as early as his plea hearing.          We agree with the PCR court that

"defendant was on notice that the sentence included Megan's Law

and parole supervision for life, because the prosecutor explicitly

mentioned it during the plea hearing in 2006."




3
  Defendant notes that further changes were made to the statute in
2014, but those changes are irrelevant to defendant's decision to
plead guilty in 2006.    Moreover, the changes have not yet been
applied to defendant. Thus, we do not consider their applicability
to defendant.

                                       9                                  A-3225-15T3
      Moreover, as the PCR court noted, defendant knew he was

subject to PSL in 2011, when he admittedly was cited for a

violation of PSL.            In any event, it would have been clear to

defendant that he was subject to PSL no later than December 26,

2012, when he signed a form stating the "General Conditions" for

"Parole Supervision for Life," and acknowledged being sentenced

and serving PSL.             Nevertheless, defendant still waited until

October 29, 2014 to file for PCR.

      To excuse his late filing, defendant relies on State v.

Schubert,      212    N.J.    295    (2012).       However,     Schubert     has    no

application to this case.            Schubert addressed whether an offender

sentenced before the 2004 effective date of the PSL amendment

could   have    PSL     retroactively     imposed      on    him.    By   contrast,

defendant was sentenced in 2007 after the 2004 effective date of

the   PSL   amendment,       so     defendant    was   always    governed    by    the

requirement that he be sentenced to PSL.                  Moreover, Schubert was

decided on October 22, 2012, more than two years before defendant

filed his PCR petition.

      Defendant also argues that where "a defendant forbears from

initiating      PCR    proceedings       within    five      years   in   favor     of

successfully         completing      probation     and      moving   on   with     his

rehabilitation, it would be unjust to deny him the opportunity to

present his claims on PCR on simply procedural grounds."                    However,

                                         10                                  A-3225-15T3
defendant makes no such claim of forbearance in his certifications.

In any event, it does not constitute excusable neglect for ignoring

the five-year period to challenge his conviction.

     Defendant waited to file his PCR petition more than seven

years and ten months after his judgment of conviction.                 "Absent

compelling, extenuating circumstances, the burden of justifying a

petition filed after the five-year period will increase with the

extent of the delay."       Id. at 492 (quoting State v. Mitchell, 126

N.J. 565, 580 (1992)).       Here, defendant has no valid reasons for

his delay of almost three years beyond the five-year period.                See

State v. Dugan, 289 N.J. Super. 15, 21 (App. Div.) (finding

"defendant's delay in filing his petition was significant" and

inexcusable because he "delayed more than a year and a half after

expiration of the five year period"), certif. denied, 145 N.J. 373

(1996).   The option of seeking PCR relief "could have been pursued

well before . . . and should have been known to defendant many

years ago.     He simply did not avail himself of it in a diligent

fashion."      State v. Milne, 178 N.J. 486, 494 (2004).              Thus, we

agree   with   the   PCR   court   that    defendant   has   failed   to   show

excusable neglect.

                                      B.

     Defendant also failed to show that "enforcement of the time

bar would result in a fundamental injustice."            R. 3:22-12(a)(1).

                                     11                                A-3225-15T3
Defendant would have received PSL if he pled or was found guilty

to either charged offense.   Defendant does not claim innocence of

improperly touching and penetrating the fifteen-year-old victim

who became pregnant and gave birth.

     He argues that he received ineffective assistance of counsel

in not clarifying if he was pleading guilty to CSL or PSL, and

that he would not have pled guilty if he had known he would be

sentenced to PSL.   However, the plea agreement negotiated by trial

counsel was favorable to defendant.4

     By pleading guilty to the less serious charge of third-degree

endangering the welfare of a child, defendant avoided a conviction

on the more serious charge of second-degree sexual assault, and

received a sentence of probation which was concurrent to any

sentence he would receive on his pending second-degree gun charge.

Had defendant been found guilty on all charges, he faced a possible

total sentence of 25 years of imprisonment.   N.J.S.A. 2C:43-6(a).

     Thus, it would be difficult for defendant to show that "a

decision to reject the plea bargain would have been rational under

the circumstances," Padilla, supra, 559 U.S. at 372, 130 S. Ct.




4
  In fact, the plea agreement was so favorable to defendant that
during the sentencing hearing the trial judge stated he was "not
happy with this" plea agreement.

                                12                          A-3225-15T3
at 1485, 176 L. Ed. 2d at 297, let alone show a fundamental

injustice.

       Defendant alleges that at sentencing the court misinformed

him about the consequences of his plea, and that this information

created    a    fundamental     injustice.            However,     any    alleged

misinformation at sentencing could not have affected defendant's

earlier decision to plead guilty.           Further, defendant waived any

argument regarding misinformation from the trial court by not

raising it on direct appeal.         See R. 3:22-4(a).

       Thus,   defendant    failed    to    show      excusable    neglect     and

fundamental     injustice      as    required      by    Rule     3:22-12(a)(1).

Therefore, he cannot excuse his failure to file his PCR petition

within five years.      See R. 3:22-12(c); R. 1:3-4(c).             Accordingly,

the PCR court properly denied his PCR petition.                   See Brewster,

supra, 429 N.J. Super. at 398.

                                       C.

       Defendant lastly tries to challenge the constitutionality of

PSL.    However, a PCR petition is not "a substitute for appeal."

R. 3:22-3.     "Any ground for relief not raised . . . in any appeal

taken [from the conviction] is barred from assertion" in a PCR

proceeding     unless   "(1)   the   ground     for     relief   not   previously

asserted could not reasonably have been raised in any prior

proceeding; or (2) [the] enforcement of the bar to preclude claims,

                                      13                                  A-3225-15T3
including one for ineffective assistance of counsel, would result

in fundamental injustice[.]"    R. 3:22-4(a).      This rule is designed

to guard against piecemeal proceedings.        Mitchell, supra, 126 N.J.

at 584-85.

     Defendant cannot satisfy the exceptions set forth in Rule

3:22-4(a).    Moreover,    as   set    forth   above,   he   cannot   show

fundamental injustice.     R. 3:22-4(a)(2).        Thus, the PCR court

properly barred defendant's constitutional claim on this grounds

as well as untimeliness.

     Affirmed.




                                  14                              A-3225-15T3
