                                 NOT FOR PUBLICATION WITHOUT THE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 c ases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5061-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CARL WILES, a/k/a EUGENE
WILES, and CARL WILIS,

     Defendant-Appellant.
__________________________

                    Submitted May 8, 2019 – Decided May 24, 2019

                    Before Judges Koblitz and Mayer.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Camden County, Accusation Nos. 07-12-
                    4099 and 07-12-4100.

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

                    Mary Eva Colalillo, Camden County Prosecutor,
                    attorney for respondent (Linda Anne Shashoua,
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Carl Wiles appeals from an April 6, 2018 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 facts leading to defendant's arrest. 1 In July 2007,

police responded to reports of a shooting in which a male, later identified as

defendant, was shot. Defendant spoke to the police at the hospital where he was

treated for a gunshot wound. The police did not believe defendant was telling

the truth about the shooting and thought defendant was withholding the identity

of the shooter or shooters.

      The police subsequently learned defendant violated probation and arrested

him. In connection with the arrest, the police obtained a search warrant for

defendant's home and found a gun and drugs in plain view.

      Following his arrest, defendant gave a statement to the police. Because

he was a juvenile, defendant's mother accompanied him to the police station.

She gave written consent to the police to question her son. Defendant's mother




1
  Defendant was a juvenile at the time of his arrest. He voluntarily waived
prosecution in the family court and the matter was referred to adult court.
                                                                       A-5061-17T2
                                      2
did not speak to defendant prior to granting the police permission to speak with

her son.

       The police conducted an unrecorded interview that lasted approximately

two and one-half hours. Defendant's mother was not present but was seated near

the interrogation room during the unrecorded interview.

       As part of the unrecorded interview, defendant explained that he fired his

gun at three males because they were shooting at him. The police then stopped

the interview and read defendant his Miranda2 rights. Defendant waived his

rights and proceeded with a recorded interview. During the twenty-minute

recorded interview, defendant repeated his statements regarding the shooting.

       Defendant was charged with two counts of second-degree aggravated

assault, N.J.S.A. 2C:12-1(b)(1), under Accusation No. 07-12-4099, and second-

degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a),

under Accusation No. 07-12-4100.

       Defendant entered a guilty plea on all three counts. The State agreed to

recommend a seven-year sentence with a parole ineligibility period of eighty-

five percent under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on

each of the aggravated assault counts to run concurrently with each other, and a


2
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                         A-5061-17T2
                                        3
concurrent seven-year term on the possession of a weapon count. In accordance

with the State's recommendation, the judge sentenced defendant to an aggregate

seven-year prison term with a parole ineligibility period of eighty-five percent

under NERA. A judgment of conviction was entered on April 1, 2008. Based

on a joint application by the State and defense counsel, an amended judgment

of conviction was entered on June 6, 2008.

      Defendant filed his PCR petition on April 28, 2016. Judge John Thomas

Kelley heard argument on defendant's PCR application on April 6, 2018. 3 In a

thorough and well-reasoned oral decision, the judge denied defendant's petition,

concluding the application was time-barred. Despite the untimeliness of the

petition, Judge Kelley also considered defendant's application on the merits,

concluding defendant failed to establish a prima facie case of ineffective

assistance of counsel.

      Judge Kelley evaluated the merits of defendant's claim that his trial

counsel should have filed a motion to suppress his statement to the police based

on defendant's status as a juvenile. In accordance with State v. Presha, 163 N.J.

304 (2000), the judge assessed the admissibility of defendant's statement to the


3
  Because defendant was incarcerated in an out-of-state prison facility, counsel
had difficulty reviewing the PCR brief and certification with her client,
explaining, in part, the two-year delay.
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                                       4
police. Judge Kelley considered defendant's age, education, intelligence, advice

as to his constitutional rights, length of his detention, whether the questioning

was repeated and prolonged in nature, whether physical punishment or mental

exhaustion was involved, and any prior encounters with law enforcement. Id. at

317-22. In weighing these factors, the judge concluded that if defendant's trial

counsel had made a motion to suppress the recorded statement to the police, i t

would not have been successful as defendant's "statement was given knowingly,

intelligently, and voluntarily." Because the judge held defendant would not have

prevailed had a suppression motion been filed, he determined defendant's trial

counsel could not have been ineffective.

      Defendant raises the following argument on appeal:

             DEFENDANT WAS DENIED THE EFFECTIVE
             ASSISTANCE OF COUNSEL BECAUSE HIS
             ATTORNEY FAILED TO FILE A MOTION FOR A
             MIRANDA[] HEARING. THIS POST-CONVICTION
             RELIEF PETITION SHOULD BE HEARD DESPITE
             ITS UNTIMELINESS AS IT IS DUE TO
             EXCUSABLE NEGLECT AND ALSO THE
             INTERESTS OF JUSTICE DEMAND IT.

      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

                                                                             A-5061-17T2
                                         5
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).

      Defendant contends he demonstrated excusable neglect, and rigid

enforcement of the time bar will result in a fundamental injustice. He claims

the sentencing judge and defense counsel failed to advise him he could file a

PCR petition within five years of his conviction.

      Defendant's amended judgment of conviction was entered on June 6, 2008,

and his PCR petition was not filed until April 2016, far exceeding the five-year

time period set forth in Rule 3:22-12(a)(1). We agree with Judge Kelley that

defendant failed to demonstrate excusable neglect or a fundamental injustice to

overcome the five-year limitation for filing his PCR petition.       Neither the

sentencing judge nor defense counsel were obligated to advise defendant of the

ability to file a PCR petition.    Defendant's ignorance of the law does not

constitute excusable neglect. State v. Murray, 162 N.J. 240, 246 (2000).

      Regardless of the time bar, defendant failed to satisfy his burden to show

ineffective assistance of counsel. To prevail on a claim of ineffective assistance

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


                                                                          A-5061-17T2
                                         6
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.

      Having reviewed the record, defendant's PCR petition lacked substantive

merit for the reasons expressed by Judge Kelley. Defendant failed to establish

a prima facie case under either prong of the Strickland test.

      Because defendant failed to allege facts sufficient to support a prima facie

case of ineffective assistance of counsel, no evidentiary hearing was required.

State v. Preciose, 129 N.J. 451, 462 (1992).

      Affirmed.




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