                                NOT FOR PUBLICATION WITHOUT THE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-5580-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

FRANK M. BROWN, a/k/a FRANK
ACE, FRANK BLACKWELL,
and SONNY BROWN,

     Defendant-Appellant.
_______________________________

                    Submitted October 28, 2019 – Decided November 12, 2019

                    Before Judges Fasciale and Mitterhoff.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Cumberland County, Indictment No. 75-03-
                    0602.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Justin T. Loughry, Designated Counsel, on
                    the briefs).

                    Jennifer Webb-McRae, Cumberland County Prosecutor,
                    attorney for respondent (Andre R. Araujo, Assistant
                    Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant appeals from a January 29, 2018 order denying his petition for

post-conviction relief (PCR), which defendant filed more than forty years after

the commission of the underlying crimes.         Defendant asserts his trial and

appellate counsel rendered ineffective assistance. Judge Robert G. Malestein

denied defendant's petition without an evidentiary hearing, and rendered a

twenty-one page written opinion.

      The first petition for PCR must be filed within five years of the date of

judgment of conviction. R. 3:22-12(a)(1). A late filing may be considered if

the petition itself shows excusable neglect for the late filing and that a

fundamental injustice will result if defendant's claims are not considered on their

merits. State v. Brewster, 429 N.J. Super. 387, 400 (App. Div. 2013). In

evaluating whether to relax the time bar, a judge should consider "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." State v. McQuaid, 147 N.J. 464, 485 (1997) (internal

quotation and citation omitted).

      "Absent compelling, extenuating circumstances, the burden to justify

filing a petition after the five-year period will increase with the extent of the


                                                                           A-5580-17T3
                                        2
delay." State v. Afanador, 151 N.J. 41, 52 (1997) (citing State v. Mitchell, 126

N.J. 565, 580 (1992)). "Where the deficient representation of counsel affected

'a determination of guilt or otherwise wrought a miscarriage of justice,' a

procedural rule otherwise barring [PCR] may be overlooked to avoid a

fundamental injustice." Brewster, 429 N.J. Super. at 400 (quoting Mitchell, 126

N.J. at 587).

      As the PCR judge emphasized, the underlying crime occurred in

December 1975; defendant was sentenced in March 1977; and the judgment of

conviction was entered in April 1977. Defendant's petition for PCR was not

filed until October 1, 2015, almost forty years after the crime and subsequent

entry of judgment. The PCR judge was:

            [M]indful that the State simply cannot prosecute a case
            for a crime which occurred [forty] years ago. The State
            has indicated that the physical evidence is destroyed,
            damaged[,] or useless. Witnesses have died, the trial
            transcript is incomplete[,] and memories have certainly
            faded. However, [forty] years ago the evidence of guilt
            was overwhelming[.]

The PCR judge noted, "[t]here is not a scintilla of evidence or . . . excusable

neglect asserted nor argued by [defendant]." The PCR judge further stated

"there are no factual allegations demonstrating that the delay was due to

[defendant's] excusable neglect." As the State correctly emphasizes, defendant


                                                                        A-5580-17T3
                                       3
does not attempt to provide any sort of "plausible explanation" for his failure to

file a timely PCR. The PCR judge denied the petition as time-barred, but also

rejected defendant's contentions on the merits.

      On appeal, defendant raises the following arguments:

            POINT I
            [DEFENDANT] WAS DENIED THE EFFECTIVE
            ASSISTANCE OF TRIAL COUNSEL, AND
            THEREBY THE RIGHTS OF DUE PROCESS AND A
            FAIR TRIAL.

            A. THE PURPOSE OF A PETITION FOR [PCR] IS TO
            AFFORD A DEFENDANT A LAST OPPORTUNITY
            TO RAISE A CONSTITUTIONAL CHALLENGE TO
            HIS CONVICTION.

            B. A PRIMA FACIE SHOWING OF INEFFECTIVE
            ASSISTANCE    OF   COUNSEL    MANDATES
            APPROVAL OF [DEFENDANT'S] REQUEST FOR
            RELIEF OR, IN THE ALTERNATIVE, AN
            EVIDENTIARY HEARING.

            C. DEFENSE COUNSEL ERRED IN FAILING TO
            OBJECT TO THE VICTIM'S SISTER'S HEARSAY
            REPORT OF WHAT THE VICTIM HAD TOLD HER,
            HOURS BEFORE HER DEATH, AS TO THE
            CLOTHING OF HER VISITOR AND STATEMENTS
            AND CONDUCT OF THE MAN WHO HAD VISITED
            HER EARLIER IN THE DAY OF HER DEATH.

            D. [DEFENDANT] HAD AVAILABLE A VALID
            FOURTH AMENDMENT ARGUMENT AGAINST
            THE POLICE'S INTRUSION WITHOUT A
            WARRANT INTO HIS LIVING SPACE, AND
            COUNSEL FAILED TO ASSERT IT, AND THUS HE

                                                                          A-5580-17T3
                                        4
SUFFERED    A    VIOLATION     OF     HIS
CONSTITUTIONAL RIGHTS.

E. FAILURE TO OBJECT TO EVIDENCE OF
[DEFENDANT'S] INMATE/CONVICTED STATUS
OR TO SEEK A LIMITING INSTRUCTION
CONSTITUTED INEFFECTIVE ASSISTANCE OF
COUNSEL.

F. DEFENSE COUNSEL ERRED IN FAILING TO
OBJECT TO TESTIMONY THAT IN RESPONSE TO
A   PARTICULARLY    IMPORTANT    POLICE
QUESTION, [DEFENDANT] INVOKED HIS RIGHT
TO COUNSEL – AN INVOCATION THAT IS
IMPROPER TO PLACE BEFORE THE JURY, AND
THAT THE JURY NEVER SHOULD HAVE HEARD.

G. DEFENSE COUNSEL FAILED TO PROTECT
DEFENDANT'S FIFTH AMENDMENT RIGHTS;
DEFENSE COUNSEL ERRED IN FAILING TO
OBJECT TO THE INTRODUCTION OF ANY
QUESTIONING BY POLICE AFTER [DEFENDANT]
HAD EXPRESSED HIS DESIRE TO HAVE
COUNSEL, AT THEIR FIRST MEETING, ON THE
DAY OF HIS DETENTION, AND SUCH POLICE
CONDUCT VIOLATED [DEFENDANT'S] FIFTH
AMENDMENT AND MIRANDA RIGHTS.

H. THE PROSECUTOR'S SUMMATION FEATURED
SEVERAL IMPROPRIETIES, MOST NOTABLY A
FORBIDDEN "CALL TO ARMS[,"] THAT
DEPRIVED [DEFENDANT] OF A FAIR TRIAL –
AND THAT DEFENSE COUNSEL ALLOWED TO
PASS WITHOUT OBJECTION.

I. THE [JUDGE] ERRED IN CLOSING OFF THE
OPTION OF A LESSER INCLUDED CONVICTION
AND[,] IN EFFECT[,] PARTIALLY DIRECTING A

                                            A-5580-17T3
                    5
            VERDICT ON FELONY MURDER; TRIAL
            COUNSEL FAILED TO OBJECT; AND ALTHOUGH
            TRIAL COUNSEL PROPERLY OBJECTED TO THE
            FLAWED INDICTMENT (THAT FAILED TO
            ALLEGE A PREDICATE FELONY) APPELLATE
            COUNSEL IGNORED THE ISSUE, THUS
            COMPROMISING [DEFENDANT'S] APPEAL.

            POINT II
            APPELLATE COUNSEL ERRED IN FAILING TO
            RAISE ON APPEAL THE MULTIPLE ISSUES SET
            FORTH HEREIN.

            POINT III
            THE [JUDGE] IN THE INTEREST OF JUSTICE
            SHOULD HOLD THIS PETITION NOT TIME
            BARRED.

            POINT IV
            THE        [JUDGE'S]   RETROSPECTIVE
            TRIVIALIZATION OF FORMER COUNSEL[S']
            LAPSES AS "STRATEGIC CHOICES" IS A
            CONCLUSORY RATIONALIZATION WITHOUT
            ANY BASIS.

We conclude that defendant's arguments are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the

reasons Judge Malestein gave in his well-reasoned and comprehensive opinion.

In addition to agreeing that defendant's petition is time-barred, we add the

following brief remarks.

      To establish a prima facie claim of ineffective assistance of counsel,

defendant is obliged to show not only that the particular manner in which

                                                                         A-5580-17T3
                                       6
counsel's performance was deficient, but also that the deficiency prejudiced his

right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); State

v. Fritz, 105 N.J. 42, 52 (1987). Under the first prong of the Strickland test,

defendant must demonstrate that "counsel made errors so serious that counsel

was not functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment." Strickland, 466 U.S. at 687. Under the second prong, defendant

must show "that counsel's errors were so serious as to deprive the defendant of

a fair trial, a trial whose result is reliable." Ibid. That is, "there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different."           Id. at 694.     There is a strong

presumption that counsel "rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment."           Id. at 690.

Defendant did not satisfy either prong of the Strickland test.

      Affirmed.




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