                             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                        NOT FOR PUBLICATION WITHOUT THE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-1606-15T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

A.O.,

        Defendant-Appellant.

____________________________________________

              Submitted May 23, 2017 – Decided August 24, 2017

              Before Judges Koblitz, Rothstadt and Mayer.

              On appeal from Superior Court of New Jersey,
              Law Division, Sussex County, Indictment No.
              05-02-0058.

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

              Francis A. Koch, Sussex County Prosecutor,
              attorney for respondent (Shaina Brenner,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM
      Defendant A.O.1 appeals from the Law Division's September 10,

2015 denial of his petition for post-conviction relief (PCR)

without an evidentiary hearing.                    For the reasons that follow, we

affirm.

      Defendant   was       charged       in       an    indictment     with   committing

various sexual assaults upon two of his minor relatives, the

details of which need not be repeated here for our purposes.                             He

was   convicted   by    a    jury    of    two          counts   each   of   first-degree

aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), second-degree

sexual assault, N.J.S.A. 2C:14-2(b), and third-degree endangering

the welfare of a child, N.J.S.A. 2C:24-4(a).                       On May 3, 2007, the

sentencing court imposed an aggregate sentence of thirty years

imprisonment with ten years of parole eligibility and parole

supervision for life.2

      Defendant   appealed          and    we       affirmed      his   conviction     and

sentence   in     an    unpublished                opinion,      remanding     only    for

reconsideration of the parole ineligibility period.                          See State v.



1
     We use initials to protect the identities of defendant's
victims.
2
   The court entered an amended judgment of conviction on July 3,
2007, to clarify that defendant's conviction subjected him to
parole supervision for life, N.J.S.A. 2C:43-6.4, and not community
supervision for life.



                                               2                                  A-1606-15T4
A.O., No. A-5305-06 (App. Div. February 3, 2009).               On remand, the

court entered an amended judgment of conviction on September 17,

2009,    with   no   change    to     defendant's   sentence          or    parole

ineligibility    period.3     Defendant      appealed,    and    an    excessive

sentencing panel of this court affirmed his sentence on September

22, 2010.   Defendant did not seek certification from the Supreme

Court.

     Defendant filed a pro se PCR petition on June 3, 2014, in

which he argued his trial attorney provided him with ineffective

assistance of counsel.       According to defendant, counsel failed to

appeal after resentencing, defendant was illegally sentenced to

parole   supervision   for    life,    and   defense     counsel      improperly

handled the admissibility of his taped statement to police. 4                     On

June 12, 2015, defendant, through counsel, filed a certification

in support of his petition that stated trial counsel also failed

to investigate the dates when the alleged assaults occurred, failed

to properly address issues surrounding an allegation of bias as

to one juror, failed to thoroughly place on the record that the

victim had reported seeing ghosts, and failed to communicate with



3
    The record does not include a transcript from the hearing on
remand.
4
     We addressed the admissibility of the statement on direct
appeal. A.O., supra, slip op. at 15-16.

                                       3                                   A-1606-15T4
him regarding his appeals and the time for filing a PCR petition.

Defendant also contended that his attorney "lied to [him] for 3

1/2 years about everything."

     PCR counsel filed a brief in further support of defendant's

petition, arguing that defendant's petition was not barred by Rule

3:22, "as [he] assert[ed] constitutional issues arising under the

state and federal constitutions"; and, his "failure to file his

petition within five years of his conviction was due to excusable

neglect and . . . the interests of justice warrant[ed] relaxation

of the time bar."    He further contended that defendant established

a "prima facie" claim of ineffective assistance of trial and

appellate counsel and, therefore, was entitled to an evidentiary

hearing.

     Judge Thomas J. Critchley, who had presided over defendant's

trial and sentenced him, considered oral argument on September 10,

2015, and denied defendant's PCR petition without an evidentiary

hearing.   In his comprehensive statement of reasons placed on the

record on the same date, Judge Critchley found defendant's PCR

petition was procedurally barred by Rule 3:22-12(a), as it was

brought more than five years after the entry of defendant's

judgment of conviction and defendant failed to establish any

excusable neglect.     Judge Critchley also found that some of the



                                  4                          A-1606-15T4
issues raised by defendant had been considered on direct appeal

and were procedurally barred from PCR.5

     The judge also considered the merits of defendant's petition

and concluded that, even if the petition had been timely filed,

defendant failed to establish a prima facie case of ineffective

assistance of counsel and accordingly was not entitled to an

evidentiary hearing or any relief.         Judge Critchley noted that

defendant's factual assertions were unsupported by the record and

were "vague and speculative."          Regarding the juror issue, the

judge found no merit to the claim because the juror served only

as an alternate and did not deliberate pursuant to an agreement

reached by the parties at trial.       Moreover, he found "the argument

that there was taint of the balance of the jurors [to be] much too

speculative."

     Defendant presents the following issues for our consideration

on appeal.


          POINT I

          THE PCR COURT ABUSED ITS DISCRETION WHEN THE
          COURT FOUND THAT [Rule] 3:22-12(a) BARRED
          DEFENDANT'S  PETITION   FOR  POST-CONVICTION
          RELIEF.

                A. Defendant Presented Sufficient
                Facts To Show Excusable Neglect.


5
    See R. 3:22-5.

                                   5                            A-1606-15T4
                 B. The Enforcement Of The Time Bar
                 Would    Result  In    Fundamental
                 Unfairness.

          POINT II

          THE PCR COURT'S ORDER THAT DENIED DEFENDANTS
          PETITION FOR POST-CONVICTIOIN RELIEF MUST BE
          REVERSED    BECAUSE    DEFENDANT    RECEIVED
          INEFFECTIVE ASSISTANCE OF COUNSEL IN THE
          PROCEEDINGS BELOW.

                 A. Trial Counsel Approved The Trial
                 Court's Decision To Forgo A Complete
                 Investigation Into Allegations Of
                 Misconduct By Juror No. [Seven].

                 B. Trial Counsel Failed To Perform
                 Adequate Investigation.

                 C. Defendant Received Ineffective
                 Assistance of Counsel In Connection
                 With His Appeal And On Post-
                 Conviction Relief.

          POINT III

          THE PCR COURT ABUSED ITS DISCRETION WHEN IT
          DENIED DEFENDANT'S REQUEST FOR AN EVIDENTIARY
          HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA
          FACIE CASE FOR INEFFECTIVE ASSISTANCE OF
          COUNSEL.

     We are not persuaded by any of these arguments and find them

to be without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons

expressed by Judge Critchley in his oral decision.

     Affirmed.




                                  6                       A-1606-15T4
