                                      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                                NOT FOR PUBLICATION WITHOUT THE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-0051-19T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,
v.

M.R.P.,

     Defendant-Appellant.
_________________________

                   Submitted April 30, 2020 – Decided July 15, 2020

                   Before Judges Alvarez and Suter.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Morris County, Indictment No. 10-09-1016.

                   Robert Hillis McGuigan, attorney for appellant.

                   Fredric M. Knapp, Morris County Prosecutor, attorney
                   for respondent (John K. McNamara, Jr., Chief Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM

          Petitioner M.R.P. appeals the denial on July 22, 2019 of his second

petition for post-conviction relief. For the reasons that follow, we affirm.
                                     I.

      In 2010, petitioner was indicted on thirty-one counts, including seven

counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b); seven counts of

first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); six counts of

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

counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(a); two

counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a);

and four counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(3)(a). Six

counts were severed. Petitioner was convicted by a jury on twenty-five charges

and sentenced in 2011 to an aggregate forty-year term with thirty-four years of

parole ineligibility.

      We affirmed petitioner's conviction and sentence. See State v. M.R.P., A-

2982-11 (App. Div. Sept. 5, 2014). His petition for certification was denied.

State v. M.R.P., 220 N.J. 575 (2015).

      Defendant's first PCR petition was denied on November 12, 2015. He

raised a claim of ineffective assistance of counsel for not "advis[ing] him of a

plea offer of [eighteen] years . . . ." We affirmed the denial in July 2017. State

v. M.R.P., A-2430-15 (App. Div. July 18, 2017). His petition for certification

was denied on February 28, 2018. State v. M.R.P., 232 N.J. 302 (2018).


                                                                          A-0051-19T2
                                          2
      This appeal concerns petitioner's second PCR petition, which was filed on

June 14, 2019. He alleges ineffective assistance of trial and PCR counsel.

      Petitioner claims he was not counseled by his attorney about an eighteen-

year plea offer. He contends his attorney visited him in the prisoner holding

area on June 24, 2009, telling him the State's plea offer of fifteen years was

withdrawn and "the offer was now . . . [eighteen] years." His attorney advised

he did not need to make a counteroffer, but she would visit him again to confer.

      Petitioner attempted suicide a few days later and was hospitalized for six

months. When he returned to jail in 2010, the prosecutor would only accept a

plea to a thirty-year term.

      In an October 23, 2017 letter, petitioner's attorney explained the State's

offer of fifteen years was open "[f]or a substantial period of ti me," but

withdrawn after he consistently rejected it. She said she had a discussion in the

"hallway of the courthouse" about "the possibility of an [eighteen] year offer"

with the assistant prosecutor, but the offer was "not formally extended by the

State." "Instead, [counsel] advised . . . that [she] would discuss the potential

counter-offer with [petitioner] and let [the assistant prosecutor] know if

[eighteen] years was something [petitioner] would consider to resolve [his]

case." Counsel conveyed this to petitioner, advising he "did not need to make


                                                                         A-0051-19T2
                                       3
any counter-offers at that moment," but counsel would "discuss the situation"

with him. Before she could do so, petitioner attempted suicide. When counsel

visited him at the hospital, she "honored [his] doctor's directive" not to discuss

the case. After petitioner returned to jail, the State advised it would not accept

a plea of less than thirty years.

      The PCR court denied petitioner's second PCR petition on July 22, 2019

because it was not timely filed under Rule 3:22-4(b) and 3:22-12(a)(2), having

been filed more than five years after the 2011 conviction and a year after the

denial in 2018 of his petition for certification. The PCR court held the issue of

ineffective assistance of counsel was "raised and briefed" in petitioner's first

PCR and appeal and could not be relitigated. The court could not relax these

time frames based on an amendment to the Rules. See R. 1:3-4; R. 3:22-

12(a)(2).

      On appeal, defendant raises these issues:

             POINT I ALTHOUGH DEFENDANT'S SECOND
             PCR   CLAIM    WAS   EXPLICITLY    AND
             EMPHATICALLY BASED ON THE U.S. SUPREME
             COURT CASE OF LAFLER V. COOPER, AND
             CONCERNED      A    "CONVEYED      BUT
             UNCOUNSELLED" PLEA OFFER, IN ITS
             SUBSTANTIVE RULING THE PCR COURT
             DISREGARDED THE EXPLICITLY CLAIMED
             PRECEDENT, MISCONSTRUING THE CLAIM, AS


                                                                          A-0051-19T2
                                        4
            AT THE INITIAL PCR,                TO   INVOLVE      AN
            "UNCONVEYED" OFFER.

            POINT II PROSPECTIVELY, THE ERRONEOUS
            SUBSTANTIVE RULING IN THIS CASE MUST
            NOT BE ALLOWED TO JUSTIFY APPLICATION
            OF THE RESJUDICATA (sic) BAR OF [R. 3:22-5].
            TO PREVENT DEFENDANT FROM SEEKING
            RELIEF TO WHICH HE MIGHT OTHERWISE BE
            ENTITLED.

                                     II.

      The standard for determining whether counsel's performance was

ineffective for purposes of the Sixth Amendment was formulated in Strickland

v. Washington, 466 U.S. 668 (1984), and adopted by our Supreme Court in State

v. Fritz, l05 N.J. 42 (l987). In order to prevail on a claim of ineffective

assistance of counsel, defendant must meet the two-prong test of establishing

both that: (l) counsel's performance was deficient and he or she made errors that

were so egregious that counsel was not functioning effectively as guaranteed by

the Sixth Amendment to the United States Constitution; and (2) the defect in

performance prejudiced defendant's rights to a fair trial such that there exists a

"reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different." Strickland, 466 U.S. at 694.

      Petitioner contends his attorney failed to counsel him about an eighteen-

year plea offer. He argues his trial and PCR counsel were ineffective because

                                                                          A-0051-19T2
                                           5
they represented that no plea offer was made to him, when in fact it was, but he

was uncounseled regarding whether to accept it, contrary to Lafler v. Cooper,

566 U.S. 156 (2012). He argues—the uncounseled offer—was not addressed or

decided in the earlier PCR and thus, the bar under Rule 3:22-5 should not apply.

      Rule 3:22-4(b)(1) requires that, "[a] second or subsequent petition for

post-conviction relief shall be dismissed unless: (1) it is timely under [Rule]

3:22-12(a)(2)[.]" The Rule provides:

            Notwithstanding any other provision in this rule, no
            second or subsequent petition shall be filed more than
            one year after the latest of:

            (A) the date on which the constitutional right asserted
            was initially recognized by the United States Supreme
            Court or the Supreme Court of New Jersey, if that right
            has been newly recognized by either of those Courts
            and made retroactive by either of those Courts to cases
            on collateral review; or

            (B) the date on which the factual predicate for the relief
            sought was discovered, if that factual predicate could
            not have been discovered earlier through the exercise
            of reasonable diligence; or

            (C) the date of the denial of the first or subsequent
            application for post-conviction relief where ineffective
            assistance of counsel that represented the defendant on
            the first or subsequent application for post-conviction
            relief is being alleged.

            [R. 3:22-12(a)(2)(A to C).]


                                                                         A-0051-19T2
                                        6
      Only subsection "C" of the Rule applied here, because the case did not

involve a new constitutional right, nor was there a newly discovered factual

predicate.

      We agree with the PCR court that the second PCR was time barred. Under

the Rule, petitioner's second PCR had to be filed within one year of the denial

of his first on November 12, 2015. The second PCR was filed on June 14, 2019,

which was well beyond a year. The second PCR also was not timely filed

regarding his appellate counsel's performance. It was filed more than a year

after the petition for certification was denied on February 28, 2018. The late

filing could not be excused under the Rules. See R. 3:22-12(b) and R. 3:22-

4(b)(1).

      There was no basis for PCR relief in this case. There was no evidence the

State formally made an eighteen-year plea offer. The letter from petitioner's

attorney provided that no formal offer was made. Counsel did not perform

deficiently by not counselling him on something that was not offered.

      Petitioner's claim for relief was based entirely on his unsupported

statements that an offer was made, and he would have accepted it. Petitioner

was not entitled to PCR relief based on self-serving statements. See State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999) (providing "a petitioner


                                                                        A-0051-19T2
                                      7
must do more than make bald assertions that he was denied the effective

assistance of counsel").    The record shows petitioner repeatedly rejected a

shorter fifteen-year plea offer.

      Defendant contends that res judicata does not apply because the actual

issue—an uncounseled plea offer—was not "cognized" in the first PCR. We are

not persuaded because petitioner never showed there was an eighteen-year plea

offer. To the extent he previously argued he was not aware of the issue at all,

that was addressed and cannot be the basis for relief. See R. 3:22-5. Post-

conviction relief is neither a substitute for direct appeal nor an opportunity to

relitigate cases already decided on the merits. State v. Preciose, 129 N.J. 451,

459 (1992).

      Affirmed.




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