                                     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                                NOT FOR PUBLICATION WITHOUT THE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-0757-18T1

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

MARC S. GOODSON, a/k/a
TALIB A. GOODSON,

     Defendant-Appellant.
________________________

                   Submitted February 12, 2020 – Decided March 2, 2020

                   Before Judges Fuentes and Mayer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Salem County, Indictment No. 02-07-0309.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Howard E. Drucks, Designated Counsel, on
                   the brief).

                   John T. Lenahan, Salem County Prosecutor, attorney
                   for respondent (David M. Galemba, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Marc S. Goodson appeals from an August 29, 2018 order

denying his petition for post-conviction relief (PCR) without an evidentiary

hearing. We affirm.

      Defendant was indicted on two counts of first-degree aggravated sexual

assault for an act of sexual penetration against a victim at least thirteen years

old but less than sixteen years old, N.J.S.A. 2C:14-2(c), and two counts of

second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). He

pleaded guilty to one count of second-degree sexual assault as a lesser included

offense of first-degree aggravated sexual assault, third-degree witness

tampering, N.J.S.A. 2C:29-3(b)(3), and the petty disorderly persons offense of

harassment downgraded from terroristic threats. On June 22, 2004, defendant

was sentenced to an aggregate eight-year prison term, concurrent to the sentence

he was already serving at the time, as well as Megan's Law and parole

supervision for life. The State dismissed the remaining indictments.

      Defendant appealed the sentence imposed by the court through the

summary process available under Rule 2:9-11. In an order dated August 30,

2007, this court remanded the matter for the sentencing judge to ensure

defendant was informed of the potential of civil commitment under the Sexually

Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38. State v. Goodson, No. A-


                                                                        A-0757-18T1
                                       2
3542-04 (App. Div. Aug. 30, 2007). In accordance with our remand, defendant

was resentenced on January 28, 2008.

      Defendant filed a pro se PCR petition on November 14, 2017. In his

supporting certification, defendant contended there was newly discovered

evidence that should have been investigated and presented by his trial attorney.

Defendant argued his attorney's failure to investigate and obtain evidence

constituted ineffective assistance of counsel. He also claimed the failure to file

his petition within the five-year time period pursuant to Rule 3:22-12 was "due

to newly discovered evidence obtained while paroled" and constituted excusable

neglect.

      The PCR judge determined defendant's petition was procedurally time-

barred. Despite the time-bar, the judge addressed the substantive arguments

raised in defendant's application, and concluded the petition lacked merit and

therefore no evidentiary hearing was warranted.

      On appeal, defendant argues the following:

      POINT ONE

            THE PCR COURT ERRED IN DENYING
            DEFENDANT'S      PETITION      FOR   POST-
            CONVICTION      RELIEF     DESPITE    THE
            INEFFECTIVE ASSISTANCE OF COUNSEL AS
            ESTABLISHED BY THE U.S. CONST. AMEND. VI
            AND BY THE N.J. CONST. ART. I, ¶ 10.

                                                                         A-0757-18T1
                                        3
(a)   Defendant's Claims.

(b)   Legal Standards Governing Application for Post-
      Conviction Relief.

(c)   Argument Before the PCR Court.

(d)   The PCR Court's Rulings.

(e)   The PCR Court Erred in Ruling that Defendant's
      Petition for Post-Conviction Relief was Time-
      Barred.

(f)   The PCR Court Erred in Rejecting Defendant's
      Claim that Defendant was Denied Effective
      Assistance of Counsel When Trial Counsel 1)
      Failed to Review the DNA Report with
      Defendant; 2) Failed to Apprise Defendant of the
      Evidential Significance of the DNA Report; 3)
      Indicated that he had Lost the DNA Report but
      Would not Solicit Another Copy; 4) Indicated
      that he Would not Cross-Examine [the minor
      victim] on the Basis of the DNA Test; 5) and
      Stated the DNA Test Would not be Admitted as
      Evidence.

(g)   The PCR Court Erred in Rejecting Defendant's
      Claim that Defendant was Denied Effective
      Assistance of Counsel Because of Trial Counsel's
      Failure to Conduct Effective Pre-Trial
      Investigation.

(h)   The PCR Court Erred in Rejecting Defendant's
      Claim that Trial Counsel's Failures Regarding
      Pre-Trial   Discovery,     Investigation, and
      Disclosures to his Client Rendered Defendant's
      Plea Involuntary.


                                                         A-0757-18T1
                            4
            (i)   The PCR Court Erred in not Finding That the
                  Errors of his Trial Counsel Cumulatively
                  Constituted Ineffective Assistance of Counsel.

            POINT TWO

            THE COURT ERRED IN REFUSING TO GRANT
            DEFENDANT'S REQUEST FOR AN EVIDENTIARY
            HEARING REGARDING DEFENDANT'S CLAIMS
            OF INEFFECTIVE ASSISTANCE OF TRIAL
            COUNSEL.

      We need not address defendant's substantive arguments on appeal because

we agree with the PCR judge that defendant's petition was time-barred in

accordance with Rule 3:22-12(a)(1). The PCR petition was filed in November

2017. Defendant's judgment of conviction was entered on June 22, 2004. Even

using the date of defendant's subsequent resentencing, January 30, 2008,1

defendant's petition was filed well-beyond the five-year period.

      The five-year time bar may be relaxed only under the specified

circumstances set forth in Rule 3:22-12(a)(1)(A).        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 the merits. See State v. Brewster, 429 N.J. Super. 387, 400 (App. Div. 2013).


1
   The date of the judgment of conviction controls even in the event of
subsequent sentencing proceedings. See State v. Cann, 342 N.J. Super. 93, 102
(App. Div. 2001).
                                                                         A-0757-18T1
                                       5
Here, we agree with the PCR judge that none of the exceptions applied to relax

the five-year time-bar.

      Defendant failed to establish excusable neglect justifying his delay in

filing the PCR petition. Nor did he demonstrate enforcement of the time-bar

will result in a fundamental injustice. The information upon which defendant

relies in support of his PCR application, namely fifty-five witnesses who would

testify defendant was not present at the apartment on the date of the incident ,

was known at the time of trial. Further, the lack of DNA evidence establishing

defendant as the father of the child was legally irrelevant to the charged offense

of sexual assault of a child between ages thirteen and sixteen. Defendant is

required to submit "sufficient competent evidence" to satisfy the standards for

relaxing the rule's time restriction, State v. Brown, 455 N.J. Super. 460, 470

(App. Div. 2018), and he failed to do so.

      Having reviewed the record, we affirm for the reasons stated in Judge John

C. Eastlack, Jr.'s thorough August 30, 2018 written decision.

      Affirmed.




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