                        NOT FOR PUBLICATION WITHOUT THE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-3777-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

SHEIK TRICE, a/k/a
JAMAL TRICE, SHEIK N. TRICE,
and JAMAL RICEL,

        Defendant-Appellant.


              Submitted April 18, 2018 – Decided June 26, 2018

              Before Judges Alvarez and Currier.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment Nos.
              02-06-1371 and 10-03-0393.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Kevin G. Byrnes, Designated
              Counsel, on the brief).

              Esther Suarez, Hudson County Prosecutor,
              attorney for respondent (Luisa M. Florez,
              Assistant Prosecutor, on the brief).

PER CURIAM

        Defendant Sheik Trice appeals from a March 20, 2017 order

denying his petition for post-conviction relief (PCR) without an
evidentiary hearing.      We affirm because defendant's petition was

time-barred under Rule 3:22-12(a)(1) as to one indictment, and

otherwise lacks merit.

     On July 18, 2003, defendant was sentenced in accordance with

a plea agreement on a charge of third-degree possession of a

controlled dangerous substance with intent to distribute within

1000 feet of school property, N.J.S.A. 2C:35-7, to a five-year

term of imprisonment subject to parole ineligibility of two years,

to be served concurrently to a federal sentence as well as a

violation of probation sentence.        On May 25, 2012, again pursuant

to a plea agreement, defendant was sentenced on a third-degree

conspiracy    to   distribute   cocaine,   N.J.S.A.   2C:5-2   and    2C:35-

5(b)(3), to a period of probation for two years.

     When defendant entered his guilty plea on May 9, 2003, he and

his attorney developed the factual basis as follows:

               Q    [Mr.] Trice, on February 11th of
          2002 in the City of Jersey City, did you
          possess a controlled dangerous substance,
          namely marijuana?

          A        Yes.

               Q    Did you know the substance was in
          fact marijuana?

          A        Yes.

               Q    And what were you going to do with
          that marijuana?


                                    2                                A-3777-16T4
         A       Smoke it.

              Q    Were you going to share it with
         others when you were smoking it?

         A       Yes.

              Q    And were you within 1,000 feet of a
         school zone at that time?

         A       Yes.

    Pertinent to the 2012 offense, police seized drugs from a

property owned by defendant in Jersey City.          Defendant and his

attorney engaged in the following exchange in establishing a

factual basis:

         [Defense counsel]: And on December 1st, 2009
         [the building] was being renovated.

         THE DEFENDANT: Yes.

         [Defense counsel]: And an individual that
         was renovating was also keeping heroin there
         that was going to end up being distributed.

         THE DEFENDANT: Yes.

         [Defense counsel]:        And you knew about that?

         THE DEFENDANT: Yes.

         [Defense counsel]:        And you permitted that to
         go on?

         THE DEFENDANT: Yes.

         [Defense counsel]:        Thank you.

         [Prosecutor]:       The   State's   satisfied,   Your
         Honor.


                                     3                           A-3777-16T4
     Defendant did not pursue direct appeals of either conviction.

Instead, on May 16, 2016, defendant filed a PCR petition alleging

ineffective assistance of counsel.    Defendant certified that, as

to the 2012 charge, he lived in the downstairs apartment of the

building, while the upstairs apartment was being renovated.         A

Robert Murphy claimed ownership of the drugs – Murphy was "an

associate who [defendant] allowed to store some personal items in

the upstairs flat while it was being refurbished for [defendant's]

occupancy[.]"

     Defendant also certified that his attorney explained to him

that because he allowed Murphy to store his property in the

apartment, defendant too was "culpable under the theory of joint

or constructive possession."   The attorney did not inform him that

he was guilty of the offense only if he had actual knowledge of

the presence of the drugs.

     At the May 25, 2012 sentencing hearing, defendant's attorney

stated that although defendant had denied to the probation officer

who prepared the presentence report being aware that drugs were

being stored in the apartment, he "was basically trying to iterate

- - reiterate at the time that he did not have heroin there.       If

Your Honor recalls the factual basis was that he allowed the

gentleman to store the heroin in the building while it was being


                                 4                          A-3777-16T4
renovated.   He stands by what he said at the time of the plea."

After his lawyer's statement, defendant agreed.   When asked by the

court if he had anything further to add, defendant responded "No.

Nothing."

     Defendant claimed in his certification that he allowed the

sentencing to proceed because he would only be placed on probation

and would be released that day, whereas the case could linger for

months if he went to trial.   He reiterated that had he understood

the elements of the offense included actual knowledge that the

drugs were in the apartment, he would have insisted on going to

trial.

     With regard to the 2003 conviction, defendant contended that

he did not establish a legally adequate factual basis for his

guilty plea to possession with intent to distribute.     He argued

that relevant case law provides no one individual can be found

guilty of distribution when ownership is joint and drugs are

shared. Hence, his attorney was ineffective for failing to explain

that the facts did not support the crime.

     The Law Division judge found that defendant's unsupported

assertions did not establish that counsel had failed to provide

effective and competent assistance, as required by the first prong

of Strickland v. Washington, 466 U.S. 668, 688 (1984); State v.

Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland standard

                                 5                          A-3777-16T4
in New Jersey). He also found that defendant failed to demonstrate

a reasonable probability that but for counsels' errors, he would

not have entered guilty pleas and would have insisted on going to

trial.    See State v. DiFrisco, 139 N.J. 434, 457 (1994) (citations

omitted). Accordingly, he did not satisfy the second prong either.

Ibid.     Since defendant failed to establish a prima facie case in

support    of    post-conviction   relief,   no   hearing   was   necessary.

Furthermore, pursuant to Rule 3:22-12, defendant was barred from

disputing the viability of the 2003 plea as the petition was filed

more than five years beyond the entry of judgment.           Defendant did

not establish excusable neglect that allowed the rule to be relaxed

and the arguments lacked merit.

     On appeal, defendant raises the following points:

            POINT I
            THE FIVE-YEAR PROCEDURAL BAR FOR THE FILING
            OF A PETITION FOR POST-CONVICTION RELIEF (PCR)
            SHOULD NOT APPLY

            A.     Enforcing the Procedural Bar Constitutes
                   a Manifest Injustice

            B.     The Procedural Bar Should Not Apply Due
                   to Excusable Neglect

            POINT II
            THE GUILTY PLEAS MUST BE SET ASIDE BECAUSE
            THEY LACK A FACTUAL BASIS

            POINT III
            THE DEFENDANT WAS DENIED THE RIGHT TO
            EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED
            BY THE SIXTH AMENDMENT TO THE UNITED STATES

                                     6                               A-3777-16T4
            CONSTITUTION AND ART. I, PAR. 10 OF THE NEW
            JERSEY CONSTITUTION

            POINT IV
            THE DEFENDANT IS ENTITLED TO AN EVIDENTIARY
            HEARING

We reject defendant's arguments as to the 2003 plea because his

petition is time-barred.       The petition lacks substantive merit in

any event as to both the 2003 and 2012 convictions.

                                     I.

     The rule precludes PCR petitions filed more than five years

after entry of a judgment of conviction unless the delay was "due

to defendant's excusable neglect and . . . there was a reasonable

probability that if defendant's factual assertions were found to

be true enforcement of the time bar would result in a fundamental

injustice."    R. 3:22-12.     Our Supreme Court has stated that "[t]he

time bar should be relaxed only 'under exceptional circumstances'

because '[a]s time passes, justice becomes more elusive and the

necessity   for   preserving    finality   and   certainty     of   judgments

increases.'"      State   v.    Goodwin,   173   N.J.   583,    594    (2002)

(alterations in original) (quoting State v. Afanador, 151 N.J. 41,

52 (1997)).

     On appeal, defendant contends it would be manifestly unjust

to apply the rule to his case because the factual basis for his

2003 guilty plea was legally flawed. He argues that the bar should


                                     7                                A-3777-16T4
not be applied because he was never advised of the time limits for

PCR and only recently learned of the procedure.

     We have often stated that ignorance of the time bar, by

itself, simply does not establish excusable neglect.              See, e.g.,

State v. Brewster, 429 N.J. Super. 387, 400 (App. Div. 2013) ("If

excusable neglect for late filing of a petition is equated with

incorrect or incomplete advice, long-convicted defendants might

routinely claim they did not learn about the deficiencies in

counsel's advice on a variety of topics until after the five-year

limitation period had run.").              Thus, defendant has failed to

demonstrate the excusable neglect necessary to avoid the effect

of the rule.

                                      II.

       The Strickland standard requires a defendant to establish

that counsel's representation fell both outside the range of

professional competence and that in a plea situation, but for

counsel's errors, he would have taken the matter to trial.                  See

DiFrisco, 139 N.J. at 457.

     Defendant's    argument    that       he   only   acknowledged   sharing

marijuana, as opposed to distributing it, is mistaken.                He said

the marijuana was his, not that it was jointly owned, and that he

intended   to   share   it.    That    falls    within   the   definition    of

distribution found in N.J.S.A. 2C:35-2.            Defendant did not state

                                       8                              A-3777-16T4
in his factual basis that he was in joint possession with those

with whom he intended to share his drugs.

     On the 2012 charge, defendant gave a scant factual basis.

However, he clearly stated he knew that the person whose drugs

were seized by the authorities was keeping them there, and that

they were intended for distribution.   He knew it and "permitted"

it to happen.    The judge gave him the opportunity to refute his

sworn factual basis at sentencing when his attorney raised the

issue and he did not do so.    Thus, we are satisfied that on the

merits defendant cannot meet the Strickland standard.      He has

failed to demonstrate a reasonable probability that, but for his

attorney's alleged incomplete explanation of the law he would have

taken the matter to trial.

     Affirmed.




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