                                     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                                NOT FOR PUBLICATION WITHOUT THE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-3594-16T4



STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

R.K.V.,

     Defendant-Appellant.
____________________________

                   Submitted October 4, 2018 – Decided October 30, 2018

                   Before Judges O'Connor and Whipple.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Cape May County, Indictment No. 03-04-
                   0222.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Alison S. Perrone, Designated Counsel, on
                   the brief).

                   Jeffrey H. Sutherland, Cape May County Prosecutor,
                   attorney for respondent (Gretchen A. Pickering,
                   Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

        Defendant R.K.V.1 appeals from the dismissal of his petition for post-

conviction relief (PCR) without an evidentiary hearing. For the reasons that

follow, we affirm.

                                          I

        On October 23, 2003, a jury convicted defendant of seven counts of

first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); four counts of

second-degree sexual assault, N.J.S.A. 2C:14-2(b); one count of second-degree

sexual assault, N.J.S.A. 2C:14-2(c); and nine counts of second-degree

endangering the welfare of a minor, N.J.S.A. 2C:24-4(a).      On January 23,

2004, defendant was sentenced in the aggregate to a sixty-seven year term of

imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-

7.2.

        Defendant filed a direct appeal. We affirmed his convictions; however,

because NERA did not apply to some of the convictions, we vacated the

NERA component of the sentence and remanded the matter for resentencing.

See State v. R.K.V., No. A-3575-03 (App. Div. Dec. 22, 2005). On April 6,

2006, the trial court sentenced defendant, in the aggregate, to a sixty-seven


1
    We use initials to protect the victim’s privacy.
                                          2
                                                                     A-3594-16T4
year term of imprisonment, and imposed a twenty-three year period of parole

ineligibility. Defendant filed a direct appeal of his sentence; on September 21,

2010, defendant's sentence was affirmed by our excessive sentencing oral

argument panel, see Rule 2:9-11. On September 9, 2011, the Supreme Court

denied defendant's petition for certification. State v. Venzie, 208 N.J. 336

(2011).

        In December 21, 2011, defendant filed a petition for writ of habeas

corpus in the United States District Court for the District of New Jersey; that

petition was dismissed without prejudice on February 3, 2012. Defendant filed

an amended petition. On March 7, 2013, the District Court dismissed that

petition with prejudice and denied defendant's request for a certificate of

appealability.

        Defendant appealed and, on August 14, 2013, the United States Court of

Appeals for the Third Circuit denied defendant's request for a certificate of

appealability and, on October 9, 2013, denied his petition for a rehearing en

banc.     On February 24, 2014, the United States Supreme Court denied

defendant's application for certiorari, and on May 5, 2014, his petition for a

rehearing was denied.




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                                                                       A-3594-16T4
      On February 12, 2016, defendant filed his first petition for PCR. The

issues defendant raised before the PCR court relevant to those on appeal are:

the appeals of his convictions and sentence tolled the time bar imposed in Rule

3:22-12(a)(1); his ignorance of the law constituted excusable neglect, see Rule

3:22-12(a)(1)(A); and enforcement of the time bar would result in a

fundamental injustice because trial counsel failed to seek the recusal of the

judge who presided over his suppression hearing, during which he challenged

the admissibility of certain statements he had made to the police.2

      As for the latter allegation, defendant claimed the judge had a conflict of

interest because, when she sat in the Family Part, she presided over an

adoption hearing in which she granted defendant's application to adopt the

victim, who had been a foster child in his home.        Defendant argued that,

during the suppression hearing, the judge may have felt responsible for

permitting defendant to adopt the victim and, thus, was motivated to rule

against him at the suppression hearing to assuage her remorse. It is not known

when the adoption hearing was conducted or even if it was contested.

      On November 15, 2016, the PCR court entered an order denying

defendant's request for post-conviction relief. The court found defendant's

2
   The judge who presided over the suppression hearing did not preside over
the trial.
                                    4
                                                                       A-3594-16T4
petition time barred under Rule 3:22-12(a)(1), rejecting defendant's argument

the delay in filing his petition was due to excusable neglect and there was a

reasonable probability that, if his factual assertions were found to be true,

enforcement of the time bar would result in a fundamental injustice. See Rule

3:22-12(a)(1)(A).

      On the issue of fundamental injustice, the PCR court found there was no

basis to conclude the judge who presided over the suppression hearing was

predisposed or motivated to rule against defendant merely because she handled

the adoption hearing. The PCR court also noted defendant could have but did

not raise the question of the judge's alleged partiality on direct appeal,

although he otherwise challenged her ruling on his suppression motion. As

previously stated, we affirmed defendant's convictions on appeal.

                                      II

      On appeal, defendant presents the following point for our consideration.

            POINT I: THE PCR COURT ERRED IN
            DISMISSING DEFENDANT'S PETITION FOR
            POST-CONVICTION RELIEF AS TIME BARRED
            BECAUSE DEFENDANT'S FAILURE TO FILE HIS
            PETITION WITHIN FIVE YEARS OF HIS
            CONVICTION WAS DUE TO EXCUSABLE
            NEGLECT AND ENFORCEMENT OF THE TIME
            BAR WOULD RESULT IN A FUNDAMENTAL
            INJUSTICE.

                                      5
                                                                      A-3594-16T4
Defendant's specific arguments are those which he asserted before the PCR

court.

         To establish an ineffective assistance of counsel claim, a defendant must

satisfy the two-prong test formulated 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, a defendant must show "that counsel made errors so

serious that counsel was not functioning as the 'counsel' guaranteed . . . by the

Sixth Amendment." Id. at 52 (quoting Strickland, 466 U.S. at 687).

               To satisfy prong one, [a defendant] ha[s] to overcome
               a strong presumption that counsel exercised
               reasonable professional judgment and sound trial
               strategy in fulfilling his responsibilities. [I]f counsel
               makes a thorough investigation of the law and facts
               and considers all likely options, counsel's trial strategy
               is virtually unchallengeable. Mere dissatisfaction with
               a counsel's exercise of judgment is insufficient to
               warrant overturning a conviction.

               [State v. Nash, 212 N.J. 518, 542 (2013) (third
               alteration in original) (internal citations and quotation
               marks omitted).]

         Second, a defendant must prove he suffered prejudice due to counsel's

deficient performance. Strickland, 466 U.S. at 687. A defendant must show

by a "reasonable probability" that the deficient performance affected the

outcome. Fritz, 105 N.J. at 58. "A reasonable probability is a probability

                                           6
                                                                            A-3594-16T4
sufficient to undermine confidence in the outcome." State v. Pierre, 223 N.J.

560, 583 (2015) (quoting Strickland, 466 U.S. at 694; Fritz, 105 N.J. at 52).

"If [a] defendant establishes one prong of the Strickland-Fritz standard, but not

the other, his claim will be unsuccessful." State v. Parker, 212 N.J. 269, 280

(2012).

      Rule 3:22-12(a)(1)(A) states:

            (a) General Time Limitations.

                  (1) First Petition For Post-Conviction
                  Relief. Except as provided in paragraphs
                  (a)(2), (a)(3), and (a)(4) of this rule, no
                  petition shall be filed pursuant to this rule
                  more than 5 years after the date of entry
                  pursuant to Rule 3:21-5 of the judgment
                  of conviction that is being challenged
                  unless:

                  (A) it 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 . . . .

      We concur with the PCR court that defendant's petition is time-barred

and, because defendant failed to show excusable neglect and that enforcement

of the time bar would result in a fundamental injustice, that time bar cannot be

                                        7
                                                                        A-3594-16T4
relaxed. Generally, a defendant's first PCR petition must be filed within five

years of the date the judgment of conviction is entered, "unless it 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. 3:22-12(a)(1)(A).

      Defendant's first petition for PCR was filed on November 15, 2016. The

first judgment of conviction is dated January 23, 2004 and the amended one is

dated April 6, 2006, making the filing of the PCR petition well beyond the

five-year time limit. In general, the five-year time period is neither stayed nor

tolled by an appellate or other proceeding, see State v. DiFrisco, 187 N.J. 156,

165-67 (2006), and the fact defendant was not knowledgeable about the law

does not satisfy the exceptional circumstances standard. See State v. Dugan,

289 N.J. Super. 15, 22 (App. Div. 1996) (holding a misunderstanding of the

meaning of Rule 3:22-12 does not constitute excusable neglect); State v.

Merola, 365 N.J. Super. 203, 218 (Law Div. 2002) ("Ignorance of the law and

rules of court does not qualify as excusable neglect.").

      Finally, even if defendant demonstrated excusable neglect, there is no

evidence or indication the judge who decided the suppression motion was in

                                        8
                                                                         A-3594-16T4
any way influenced by her decision in the adoption matter.          Defendant's

hypothesis the judge had qualms about her previous decision to permit

defendant to adopt the victim and, thus, sought to mollify those feelings of

regret by denying defendant's suppression motion, is just rank speculation.

Therefore, defendant failed to show there is a reasonable probability that, even

if counsel did not seek the judge's recusal, enforcement of the time bar would

result in a fundamental injustice. See R. 3:22-12(a)(1)(A).

      In summary, we are satisfied defendant did not establish he is entitled to

a relaxation of the time limit in Rule 3:22-12(a)(1)(A). Further, even if there

were no time bar, there is no evidence the judge who decided the suppression

motion had a conflict of interest. Accordingly, even if defendant were able to

meet the first prong of the Strickland standard, he could not meet the second

prong.    Defendant did not provide any evidence there is a reasonable

probability that trial counsel's alleged ineffectiveness affected the outcome.

See Fritz, 105 N.J. at 58.

      Affirmed.




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                                                                       A-3594-16T4
