                                       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                                 NOT FOR PUBLICATION WITHOUT THE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-4696-16T1

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

JAMES KERSHAW,

     Defendant-Appellant.
______________________________

                    Submitted August 21, 2018 – Decided September 11, 2018

                    Before Judges Sumners and Gilson.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 06-06-2109.

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

                    Mary Eva Colalillo, Camden County Prosecutor,
                    attorney for respondent (Maura Murphy Sullivan,
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant appeals from a May 25, 2017 order denying his first petition

for post-conviction relief (PCR), alleging inadequate assistance of counsel, as

time-barred and without an evidentiary hearing. He argues that his petition was

not time barred, and that he should have had an evidentiary hearing because he

proved a prima facie case of ineffective assistance of counsel.

      Defendant was indicted for second-degree sexual assault, N.J.S.A. 2C:14-

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

4(a). Upon pleading guilty to third-degree endangering the welfare of a child,

the sexual assault charge was dismissed.      In his executed plea agreement,

defendant stated he understood that a special sentence of parole supervision for

life (PSL) would also be imposed. On February 16, 2007, he was sentenced in

accordance with the terms of the plea agreement.

      Over eight years after his conviction, on June 22, 2015, defendant filed

for PCR alleging that his counsel provided inadequate assistance for failing to

investigate the defense of diminished capacity to the sexual assault charge. He

contended that a little over a month before the sexual assault incident, he had

been released from a month-long hospital stay due to injuries he received from

being struck by a motor vehicle while riding his bike. In support, defendant

submitted medical records detailing his injuries. He also claimed that his guilty


                                                                         A-4696-16T1
                                       2
plea should have been withdrawn because his diminished capacity rendered him

unable to understand the consequences of his plea, and that counsel failed to

advise him that PSL would be imposed as part of his sentence and his rights to

file an appeal or PCR petition. Defendant argued that excusable neglect existed

for late filing because counsel did not advise him of his PCR rights and that a

fundamental injustice could occur if his petition was time barred.

      The PCR judge denied defendant's petition without granting an

evidentiary hearing; finding that it was barred because it was not filed within

five years after his conviction as required by Rule 3:22-12(a)(1). The judge held

that defendant did not establish excusable neglect because his delay was based

on his ignorance of the law and failure to pursue his legal rights. Nevertheless,

the judge addressed the merits of defendant's claim that counsel was ineffective

because he failed to investigate the defense of diminished capacity. In short, the

judge found that the diminished capacity argument was a bald assertion. He

determined that the medical records defendant submitted did not establish a

cognitive impairment from his accident to support a diminished capacity defense

or the contention that he was unable to understand the plea and sentencing

proceedings. The judge further found that, among other reasons, the insufficient

diminished capacity argument served as a basis to reject defendant's contention


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                                        3
that he should be allowed to withdraw his guilty plea under State v. Slater, 198

N.J. 145 (2009).

      We agree with the judge's findings that defendant's petition is time-barred

under Rule 3:22-12(a)(1). The rule provides that a first PCR petition cannot be

filed more than five years after the date of entry of the judgment of conviction

"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) (emphasis

added). Defendant's ignorance of the law does not establish excusable neglect.

State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div. 1998) (mistaken

understanding of law did not constitute excusable neglect); see also State v.

Cummings, 321 N.J. Super. 154, 166-67 (App. Div. 1999) (difficulty reading

and writing and defendant's ignorance of law did not excuse late filing). Since

defendant has not established neglect, we need not consider whether he showed

that there was a reasonable probability of a fundamental injustice. R. 3:22-

12(a)(1)(A).

      Turning to the merits of defendant's petition, we also agree with the judge

that defendant did not establish a prima facie claim of inadequate assistance of


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                                       4
counsel and was therefore not entitled to an evidentiary hearing to prove his

claim.

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

defendant must show that: (1) counsel's performance was deficient; and (2) the

deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687

(1984); State v. Fritz, 105 N.J. 42, 58 (1987). A court reviewing a PCR petition

based on claims of ineffective assistance has the discretion to grant an

evidentiary hearing only if a defendant establishes a prima facie showing in

support of the requested relief. State v. Preciose, 129 N.J. 451, 462-63 (1992).

The mere raising of a claim for PCR does not entitle the defendant to an

evidentiary hearing. Cummings, 321 N.J. Super. at 170. When determining

whether to grant an evidentiary hearing, the PCR court must consider the facts

in the light most favorable to the defendant to determine if a defendant has

established a prima facie claim. Preciose, 129 N.J. at 462-63. A hearing should

be conducted only if there are disputed issues as to material facts regarding

entitlement to PCR that cannot be resolved based on the existing record. State

v. Porter, 216 N.J. 343, 354 (2013).

         "[I]n order to establish a prima facie claim, a petitioner must do more than

make bald assertions that he was denied the effective assistance of counsel. He


                                                                             A-4696-16T1
                                           5
must allege facts sufficient to demonstrate counsel's alleged substandard

performance." Cummings, 321 N.J. Super. at 170. When claiming defense

counsel inadequately investigated, the defendant "must assert the facts that an

investigation would have revealed, supported by affidavits or certifications

based upon the personal knowledge of the affiant or the person making the

certification." Ibid. (citing R. 1:6-6).

      In a PCR arising from a guilty plea, a petitioner must "show[] 'a reasonable

probability that, but for counsel's errors, he would not have pleaded guilty and

would have insisted on going to trial.'" State v. O'Donnell, 435 N.J. Super. 351,

369-70 (App. Div. 2014) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

Moreover, "[t]he failure to raise unsuccessful legal arguments does not

constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596,

625 (1990) (citing Strickland, 466 U.S. at 688).

      Applying these principles, defendant fell short of presenting a prima facie

case of ineffective assistance of counsel. His bald allegations of diminished

capacity through his submission of medical records fails to establish any

competent evidence that he had a cognitive impairment that prevented him from

having the mens rea to commit sexual assault or the ability to comprehend the

guilty plea or sentencing proceedings. And because defendant has not shown a


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                                           6
prima facie claim of ineffective assistance, the decision not to afford defendant

an evidentiary hearing was correct.

      Affirmed.




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