                                      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                                 NOT FOR PUBLICATION WITHOUT THE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-4104-16T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

R.A.1

          Defendant-Appellant.


                   Argued October 29, 2018 – Decided November 20, 2018

                   Before Judges Messano and Rose.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Burlington County, Indictment No. 09-10-
                   1036.

                   Robert N. Agre argued the cause for appellant (Agre &
                   Jensen, attorneys; Robert N. Agre and Annmarie
                   Jensen, on the briefs).

                   Courtney J. O'Brien, Assistant Prosecutor, argued the
                   cause for respondent (Scott A. Coffina, Burlington
                   County Prosecutor, attorney; Courtney J. O'Brien, of
                   counsel and on the brief).

1
     We use initials to protect the privacy of R.A.
PER CURIAM

      Defendant R.A. appeals from the April 24, 2017 denial of his petition for

post-conviction relief (PCR). We affirm.

      This appeal has its genesis in a provision of a consent order that required

defendant "to permanently forfeit" his firearms purchaser identification card

(FPIC), various firearms, and ammunition pursuant to the terms of a negotiated

plea agreement with the State.      Following expungement of the underlying

convictions and two civil commitments, defendant sought "equitable relief"

from the trial court to modify or rescind the consent order, for th e purpose of

obtaining an FPIC.

                                        I.

      We incorporate by reference the facts, which are largely undisputed, and

accurately set forth in the PCR judge's April 24, 2017 written opinion. We

summarize those facts that are pertinent to this appeal.

      Defendant has a long history of military service and law enforcement

employment, including training in firearms safety and instruction. He served as

a firearms instructor for the United States Navy and New Jersey Division of

Criminal Justice. Defendant also was required to carry a weapon in various




                                                                         A-4104-16T3
                                        2
civilian positions. He has received accolades throughout his tenure in the

military.

      Nonetheless, defendant's civilian record is not unblemished.      Indeed,

defendant has been charged with acts of domestic violence, and various criminal

weapons offenses and assault; temporary restraining orders (TRO) have been

filed against him by three separate women; and defendant twice has been civilly

committed.

      Specifically, between September 2007 and October 2008, defendant

attempted suicide three times. On the first occasion, he "start[ed] to shoot

himself with a gun," but he called his family for help and they intervened. In

October 2008, defendant attempted to hang himself with a T-shirt in a holding

cell, following his arrest for the offenses underlying the consent order in this

appeal. Defendant was involuntarily committed in November 2007 and October

2008. Those commitments were expunged in December 2015.

      Further, the charges underlying the consent order stem from an allegation

of domestic violence.    In particular, in December 2007, defendant's then

girlfriend applied for a TRO, claiming defendant possessed four handguns and

one shotgun in his home. When local police served defendant with the TRO,

which included a provision directing defendant to surrender all weapons in his


                                                                        A-4104-16T3
                                       3
possession, defendant claimed he sold the weapons at a gun show in

Pennsylvania. Defendant surrendered his FPIC, which was returned to him

when the TRO was ultimately dismissed.

      Thereafter, on his application for employment with the Philadelphia

Police Department (PPD), defendant claimed he owned and possessed four

firearms, and never sold any weapons. Around the same time, defendant also

applied for a position with the New Jersey State Police, which had reviewed

defendant's PPD application. When the State Police confronted defendant about

his statements in the PPD application, defendant admitted he possessed the

weapons at the time police served him with the TRO at his residence, and had

not sold the weapons at a gun show.

      Subsequently, police obtained a search warrant for defendant's home,

seized several weapons, flash bang devices, and ammunition. Defendant was

charged in a Burlington County indictment with: second-degree unlawful

possession of an assault firearm, N.J.S.A. 2C:39-5(f) (count one); fourth-degree

possession of certain weapons, i.e., fifteen flash bang devices, N.J.S.A. 2C:39-

5(d) (count two); fourth-degree prohibited weapons and devices, i.e., a large

capacity magazine, N.J.S.A. 2C:39-3(j) (count three); and fourth-degree

contempt N.J.S.A. 2C:29-9(b) (count four).


                                                                        A-4104-16T3
                                       4
      Following extensive negotiations, defendant pled guilty to two disorderly

persons offenses: count two as amended to a firearms regulatory violation,

N.J.S.A. 2C:39-10(b), and count four as amended to disorderly persons

contempt, N.J.S.A. 2C:29-9(b). As part of the plea agreement, the State agreed

to recommend a sentence of fines only, without a probationary term. Defendant

agreed to waive his right to appeal, and forfeit his FPIC.

      At his sentencing on May 17, 2010, 2 defendant, his two attorneys, an

assistant prosecutor, and the sentencing judge executed the consent order at

issue, which provides, in pertinent part:

                    IT IS HEREBY PERMANENTLY ORDERED
            that:

                   I. Defendant . . . hereby agrees that a principal
            condition of the State amending count two and count
            four of Indictment 2009-10-1-36-I to disorderly
            persons offenses is that defendant agree to permanently
            forfeit all firearms identification cards, all firearms, and
            defendant's right to possess firearms in the State of New
            Jersey.



2
  At the time of sentencing, a charge of domestic violence harassment, N.J.S.A.
2C:33-4(a), was pending in municipal court. That charge was filed by a second
complainant, who also obtained a TRO. The TRO and charge were dismissed,
and the charge was expunged in October 2015. Further, in July 2010, defendant
was charged with aggravated assault, N.J.S.A. 2C:12-1(b), which was amended
to a disorderly persons offense, referred to municipal court and dismissed. That
charge was expunged in June 2011.
                                                                           A-4104-16T3
                                         5
       II. Defendant hereby agrees to waive his right to
a separate hearing at which time the State would have
to show [by] a preponderance of the evidence that
defendant's conduct rendered him unfit pursuant to one
of the provisions of N.J.S.A. 2C:58-3.

      III. Defendant having waived his right to a
hearing stipulates and agrees to the forfeiture of his
firearm[s] without the State having to conduct a
hearing.

      ....

      VI. Defendant agrees that pursuant to this order
he shall not be permitted to possess firearms,
explosives, or destructive devices in the State of New
Jersey including within defendant's residence.

      ....

       VIII. This order shall not restrict, or impact
defendant's right to possess a duty firearm that is issued
by local, state, or federal law enforcement or the Armed
Forces of the United States in the course of employment
or duty. Defendant shall be required to advise any
current or prospective employer who requires the
carrying of a firearm in the performance of duties that
his firearms identification card has been forfeited.

      ....

      X. A violation of any provision of this order shall
be considered a violation of N.J.S.A. 2C:29-9(a)[,] a
crime of the fourth degree.




                                                             A-4104-16T3
                            6
      Defendant was sentenced pursuant to the terms of the plea agreement. In

October 2015, both disorderly persons offenses were expunged pursuant to

N.J.S.A. 2C:52-11.3

      One year later, defendant filed a PCR petition, seeking "an [o]rder

modifying the [j]udgment of [c]onviction dated May 17, 2010 with respect to

the requirement that he forfeit his firearms identification card only." Defendant

filed a certification accompanying the petition, detailing his employment

history, military service and accomplishments in an effort to support his

contention that he would "not likely . . . act in a manner that is contrary to public

safety" if his FPIC were returned to him.

      Shortly thereafter, defense counsel advised the court that defendant and

the State agreed to the procedure for adjudicating defendant's PCR petition.

Among other things, the State "agreed to waive any procedural arguments with

respect to the application or that the same is time-barred[,]" and "reserve[d] the

right to argue . . . the application to modify should be treated similarly to a

motion to modify a plea or vacate a plea." Defendant agreed to b ear the burden

of demonstrating "'good cause' exists to justify modification [of the consent



3
 In December 2015, a third complainant filed a TRO against defendant, which
was dismissed following a trial in January 2016.
                                                                             A-4104-16T3
                                         7
order] . . . in contrast to the usual burden in gun permit cases in which the State

bears the burden." Defendant also agreed that the expunged files pertaining to

the charges and civil commitments at issue could be utilized by the State to

challenge defendant's petition.

       The PCR judge 4 heard oral argument on April 10, 2017 and thereafter

issued a comprehensive, fifteen-page written opinion denying the petition.

Recognizing the "unusual procedural posture" presented by defendant's petition,

and the five-year time bar pursuant to Rule 3:22-12(a)(1), the judge determined

the petition was not time-barred. In doing so, the court acknowledged the

possibility that our court would decide "the parties cannot consent to waive the

five-year time limit for a PCR" notwithstanding "the difficulties in settling upon

a proper avenue for relief [constitutes] excusable neglect [in these

circumstances]."

       Accordingly, the PCR judge initially considered defendant's claim as a

motion to modify or withdraw a guilty plea pursuant to Rule 3:21-1, and the four

factors enunciated in State v. Slater, 198 N.J. 145 (2009), despite defendant's

argument that he was not seeking to withdraw his plea. Following a thorough

analysis of the Slater factors, the judge determined there was no basis to vacate


4
    The PCR judge also sentenced defendant.
                                                                           A-4104-16T3
                                        8
defendant's guilty plea. The judge also determined defendant did not meet the

criteria for reducing or changing his sentence pursuant to Rule 3:21-10.

      Recognizing the "parties agreed that the 2010 consent order survived the

2015 expungement of defendant's convictions[,]" the judge likewise rejected

defendant's argument that the order should be modified pursuant to the trial

court's "equitable powers."     Although the judge acknowledged defendant's

military service and law enforcement employment, the judge found troublesome

defendant's "history with the courts" and "serious mental health history." Citing

N.J.S.A. 2C:58-3(c)(5), the judge determined defendant was not entitled to the

return of his FPIC because "the issuance would not be in the interest of the public

health, safety or welfare." This appeal followed.

      On appeal, defendant raises the following points for our consideration:

            POINT I

            THE TRIAL COURT ERRED IN DENYING
            [DEFENDANT]’S   REQUEST     FOR  POST-
            CONVICTION RELIEF GIVEN THE COMPELLING
            EVIDENCE PRESENTED THAT REFUTED THE
            DISQUALIFICATIONS SET FORTH IN N.J.S.A.
            2C:58-3(c)(3).

            A. THE TRIAL COURT FAILED TO RECOGNIZE
            THAT THE COMPELLING PSYCHOLOGICAL
            EVIDENCE REGARDING [DEFENDANT] OVER-
            COMES ANY DISQUALIFICATION SET FORTH IN
            N.J.S.A. 2C:58-3(c)(3).

                                                                           A-4104-16T3
                                        9
            B. [DEFENDANT]’S INDIVIDUAL CHARACTER-
            ISTICS, HIS HISTORY IN POSSESSING AND
            USING FIREARMS AND HIS GOOD MORAL
            CHARACTER AND REPUTATION IN THE
            COMMUNITY ILLUSTRATE THAT HE SHOULD
            NOT BE DISQUALIFIED FROM POSSESSING AN
            FPIC PURSUANT TO N.J.S.A. 2C:58-3(c)(5).

            C. SINCE [DEFENDANT]’S FORFEITURE OF HIS
            FPIC WAS BY CONSENT, THE STATE SHOULD
            HAVE BEEN REQUIRED TO SHOW THAT IT
            WOULD HAVE SUCCEEDED HAD A FORFEITURE
            HEARING BEEN CONDUCTED AT THE TIME OF
            THE ENTRANCE OF THE ORDER.

            POINT II

            THE TRIAL COURT ERRED IN RELYING
            HEAVILY UPON STATE V. SLATER TO DENY
            [DEFENDANT]’S APPLICATION SINCE HE DID
            NOT SEEK TO WITHDRAW HIS GUILTY PLEA.

            POINT III

            THE EXPUNGEMENT OF [DEFENDANT]’S
            CONVICTIONS SHOULD QUALIFY THEM AS
            HAVING BEEN “VACATED” FOR THE PURPOSE
            OF PERMITTING A MODIFICATION OF HIS
            SENTENCE PURSUANT TO RULE 3:21-10.
            (Not raised below)

                                        II.

      In order to establish a prima facie PCR claim, a defendant's petition first

must satisfy the time limits for filing a claim. See State v. Echols, 199 N.J. 344,


                                                                           A-4104-16T3
                                       10
357 (2009). Rule 3:22-12(a)(1) provides that a defendant's first petition for PCR

shall be filed no more than five years after the entry of the judg ment of

conviction. Recently, we held:

            [W]hen a first PCR petition shows it was filed more
            than five years after the date of entry of the judgment
            of conviction, . . . a PCR judge has an independent, non-
            delegable duty to question the timeliness of the petition,
            and to require that defendant submit competent
            evidence to satisfy the standards for relaxing the rule's
            time restrictions pursuant to Rule 3:22-12. Absent
            sufficient competent evidence to satisfy this standard,
            the court does not have the authority to review the
            merits of the claim.

            [State v. Brown, 455 N.J. Super. 460, 470 (App. Div.
            2018).]5

      Further, Rule 3:22-12(a)(1)(A) permits a court to relax the five-year time

bar if the petition alleges facts showing the filing was untimely due to

defendant's excusable neglect and there is a reasonable probability that, if

defendant's factual assertions are found to be true, enforcement of the time bar

would result in a fundamental injustice. "The concept of excusable neglect

encompasses more than simply providing a plausible explanation for a failure to

file a timely PCR petition." State v. Norman, 405 N.J. Super. 149, 159 (App.


5
  Brown was decided after the trial judge rendered her decision in this case.
However, Brown did not enunciate a new rule of law that would require
retroactivity analysis. See State v. Afanador, 151 N.J. 51, 57 (1997).
                                                                         A-4104-16T3
                                       11
Div. 2009). If the petitioner fails to allege sufficient facts, this rule bars the

claim. State v. Mitchell, 126 N.J. 565, 576 (1992).

      Here, the judgment of conviction was entered on May 17, 2010, and

defendant's first and only PCR was filed more than six years later on October 4,

2016. Importantly, defendant does not claim excusable neglect in failing to

timely file the PCR.

      Having reviewed the record, we conclude defendant did not "satisfy the

standards for relaxing the rule's time restrictions pursuant to Rule 3:22-12,"

Brown, 455 N.J. Super. at 470, nor demonstrate excusable neglect pursuant to

Rule 3:22-12(a)(1)(A).     We thus determine defendant's claims are barred

procedurally.

      Nonetheless, we briefly address the merits of defendant's claims for the

sake of completeness. In doing so, we affirm substantially for the reasons stated

in the PCR judge's opinion. We add only the following remarks.

      Initially, we agree with the judge's determination that the consent order is

still in effect. As the judge astutely recognized, the parties agreed the consent

order survived the expungements: "To hold otherwise would produce an absurd

result that would nullify the basis upon which the State agreed to . . . defendant's

sentence."   Further, to the extent defendant's application was a motion to


                                                                            A-4104-16T3
                                        12
withdraw his guilty plea pursuant to Rule 3:21-1, or a motion for change of his

sentence pursuant to Rule 3:21-10, we agree with the PCR judge's analysis

rejecting both claims.

      Moreover, defendant's argument that the judge failed to appropriately

consider   his    expert   psychological     evidence,    which    overcame     any

disqualification set forth in N.J.S.A. 2C:58-3(c)(3), is misplaced. As the State

counters, the court decided defendant's application pursuant to N.J.S.A. 2C:58 -

3(c)(5), and determined defendant did not establish compelling evidence to

refute the disqualifications set forth in that subsection of the statute.

      In relevant part, N.J.S.A. 2C:58-3(c)(5) provides that no permit or FPIC

shall be issued "[t]o any person where the issuance would not be in the interest

of the public health, safety or welfare[.]" Section (c)(5) is "intended to relate to

cases of individual unfitness, where, though not dealt with in the specific

statutory enumerations, the issuance of the permit or identification card would

nonetheless be contrary to the public interest." In re Osworth, 365 N.J. Super.

72, 79 (App. Div. 2003).

      Further, "The dismissal of criminal charges does not prevent a court from

considering the underlying facts in deciding whether a person is entitled to

purchase a firearm or recover one previously taken by the police." Id. at 78


                                                                            A-4104-16T3
                                        13
(citing In re Return of Weapons to J.W.D., 149 N.J. 108, 110 (1997)). The court

may also consider a non-criminal conviction, such as a disorderly persons

conviction for an offense involving physical violence. For example, in Osworth,

we observed that a disorderly persons conviction for assault may be grounds to

deny a handgun permit under N.J.S.A. 2C:58-3(c)(5). Id. at 79 (citing In re

Sbitani, 216 N.J. Super. 75, 78 (App. Div. 1987)).

      In this case, we agree with the trial judge that defendant's history with the

courts and his mental health history militate against return of his FPIC. As the

judge elaborated:

            The fact of [defendant's] expungement is immaterial;
            given that the consent order is still in effect, the
            defendant has agreed that he committed a number of
            firearms violations. Even beyond . . . defendant's
            admissions in the consent order, the [c]ourt would still
            find that it would not be in the interest of the public's
            health, safety, and welfare to return his FPIC.
            [Defendant]'s long history of both alleged domestic
            violence and assaultive conduct is disturbing,
            especially when coupled with a documented mental
            health history, which includes at least one suicide
            attempt in which a firearm was used, along with at least
            two other suicide attempts and a strong indication of
            bipolar disorder.

                    ....

                  Furthermore, in accordance with Osworth, the
            [c]ourt is permitted to consider conduct that ended in a
            dismissal, or which the defendant admitted. The [c]ourt

                                                                           A-4104-16T3
                                       14
            is disturbed by . . . defendant's conduct in 2010 when
            he was charged with harassment while awaiting
            sentencing on the disorderly persons offenses.
            Likewise, the quantity of firearms, night vision devices,
            ballistic shields and helmets, flashbang grenades, and
            several thousand rounds of ammunition located in . . .
            defendant's home, which simply cannot be explained
            away as an accident of bad timing as to the search, is
            additional reason for hesitation. Then, less than two
            months after he was sentenced, he was charged with
            aggravated assault for striking a man in the face and
            body, although this charge was later downgraded. This
            all would be disconcerting enough without the then
            subsequent 2015 TRO, again allegedly involving an act
            of domestic violence. The 2015 TRO warrant alleged
            that on December 12, 2015, . . . defendant grabbed the
            victim (his then[]girlfriend) by the throat during an
            argument, and that since breaking up, he had been
            calling her and driving by her home unannounced.
            Admittedly, no TRO resulted in a[] F[inal]
            R[estraining] O[rder], but incurring these separate
            TROs involving three separate women in succession is
            troubling. All of these events in combination with a
            serious mental health history and two separate
            hospitalizations give this [c]ourt great concern and
            support its conclusion in this matter.

      For these reasons, we decline to disturb the PCR judge's determination.

The judge's decision to deny defendant's request to set aside the consent order

and reinstate his FPIC was supported by adequate and substantial credible

evidence in the record. See J.W.D., 149 N.J. at 116.

      We find defendant's remaining arguments to be without sufficient merit to

warrant further discussion. R. 2:11-3(e)(1)(E).

                                                                        A-4104-16T3
                                      15
Affirmed.




                 A-4104-16T3
            16
