                                NOT FOR PUBLICATION WITHOUT THE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 pos ted 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-5724-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JALONN LASSITER,

     Defendant-Appellant.
____________________________

                    Submitted January 22, 2020 – Decided February 14, 2020

                    Before Judges Hoffman and Firko.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment Nos. 02-10-
                    1333, 04-02-0159, 04-02-0168, 04-05-0717 and
                    Accusation No. 04-07-0187.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Phuong Vinh Dao, Designated Counsel, on
                    the brief).

                    Christopher L.C. Kuberiet, Acting Middlesex County
                    Prosecutor, attorney for respondent (Nancy Anne
                    Hulett, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Jalonn Lassiter appeals from the April 11, 2018 Law Division

order denying his petition for post-conviction relief (PCR) without an

evidentiary hearing. We affirm.

                                      I

      Between 2002 to 2004, defendant was charged in Middlesex County under

four separate indictments for crimes related to theft and robbery. On October

31, 2002, a Middlesex County Grand Jury indicted defendant on three counts of

first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree possession of a

weapon, N.J.S.A. 2C:39-4(d); third-degree unlawful possession of an assault

firearm, N.J.S.A. 2C:39-5(f); and fourth-degree unlawful possession of a large

capacity ammunition magazine, N.J.S.A. 2C:39-3(j).

      On February 4, 2004, a Middlesex County Grand Jury indicted defendant

for second-degree conspiracy to commit second-degree burglary, N.J.S.A. 2C:5-

2, 2C:18-2; second-degree burglary, N.J.S.A. 2C:18-2; second-degree

possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-

degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:58-4,

2C:39-5(b); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7); second-

degree possession of a weapon (knife), with unlawful purpose, N.J.S.A. 2C:39-


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                                      2
4(d); fourth-degree unlawful possession of a weapon (knife) under

circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5(d).

       On February 4, 2004, a Middlesex County Grand Jury indicted defendant

under a separate indictment for second-degree possession of a handgun for

unlawful purposes, N.J.S.A. 2C:39-4(a); two counts of first-degree armed

robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a handgun

without a permit, N.J.S.A. 2C:39-5(b); fourth-degree theft, N.J.S.A. 2C:20-3;

and third-degree conspiracy to commit first-degree robbery, N.J.S.A. 2C:5-2,

2C:15-1.

       On May 19, 2004, a Middlesex County Grand Jury indicted defendant for

third-degree conspiracy to commit first-degree armed robbery, N.J.S.A. 2C:5-2,

2C:15-1; first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree robbery,

N.J.S.A. 2C:15-1; second-degree possession of a weapon (shotgun) for unlawful

purposes, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a shotgun

without an FPIC1, N.J.S.A. 2C:39-5(c)(1); second-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(1); and third-degree aggravated assault, N.J.S.A. 2C:12-

1(b)(2).




1
    Firearm Purchaser Identification Card
                                                                       A-5724-17T3
                                        3
      On July 7, 2004, defendant waived his right to indictment and was charged

in Accusation No. 04-07-0187 with third-degree theft, N.J.S.A. 2C:20-3(a);

first-degree robbery, N.J.S.A. 2C:15-1; and first-degree kidnapping, N.J.S.A.

2C:13-1(b)(1). That same day, defendant entered into a plea agreement covering

the four indictments and the accusation.

      At the plea hearing, after defendant provided a factual basis for the

relevant charges, the trial judge reviewed the agreement and confirmed

defendant understood the nature and consequences of his plea. In particular, the

judge explained that although the plea dismissed defendant's remaining

Middlesex County charges,

            the one exception to that . . . is that you are charged
            with certain crimes in other counties, and particularly
            in Union County, and this plea agreement that you've
            reached with the prosecutor of Middlesex County has
            no influence and is not in any way related to the charges
            pending against you in other counties.
                  ....
            You will have to face those charges and deal with those
            charges independent of any agreement that you've
            reached in this county.

Defendant acknowledged he understood the parameters of the plea agreement

and expressed his satisfaction with plea counsel.

      In October 2004, before the trial judge sentenced defendant in accordance

with the plea agreement, a Union County Grand Jury indicted defendant and co-

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                                       4
defendants on unrelated charges for first-degree robbery, N.J.S.A. 2C:15-1;

first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); and second-degree

kidnapping, N.J.S.A. 2C:13-1(b); in addition, the grand jury indicted defendant

individually on a charge of first-degree murder, N.J.S.A. 2C:11-2(a)(1) and/or

(2).

       On October 22, 2004, the trial judge sentenced defendant pursuant to the

plea agreement entered in Middlesex County, he received a twenty-year prison

term, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

       Two years later, defendant went to trial on the charges out of Union

County, which alleged he shot and killed the victim during a drug transaction.

On October 6, 2006, a jury found defendant guilty of first-degree robbery, first-

degree felony murder and first-degree aggravated manslaughter.        The State

moved to sentence defendant to an extended term under the Three Strikes Law.

After merging the robbery and manslaughter charges with the felony murder

charge, the trial court sentenced defendant to life without parole, to run

concurrently with his Middlesex County sentence.

       On February 13, 2017, defendant filed the PCR petition under review,

alleging he received ineffective assistance because his plea counsel knew of the

pending charges in Union County but failed to inform him that his guilty plea to


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                                       5
the Middlesex County charges could be used to enhance the subsequent

sentence.

      On April 6, 2018, the PCR judge heard oral argument on defendant's

petition and then delivered an oral opinion setting forth his reasons for denying

PCR. The judge concluded defendant failed to present the requisite prima facie

case for ineffective assistance of counsel necessary to substantiate his claim for

PCR, finding the claim "too vague and speculative." Citing State v. Wilkerson,

321 N.J. Super. 219, 222 (App. Div. 1989), the PCR judge noted a trial court is

not required to advise a defendant that his or her plea could be used to enhance

future sentences. Alternatively, the PCR judge found defendant's petition time-

barred, pursuant to Rule 3:22-12(a)(1), which sets a five-year time limitation

after entry of a judgment of conviction (JOC) to file a PCR petition, absent a

showing of excusable neglect. Defendant provided no explanation as to why he

filed his petition more than ten years following the Union County JOC.

      This appeal followed, with defendant raising the following points of

argument:

      POINT I

            IN THE INTEREST OF JUSTICE, [DEFENDANT'S]
            PCR CLAIM IS NOT TIME BARRED UNDER R[ule]
            3:22-12.


                                                                          A-5724-17T3
                                        6
      POINT II

            AS DEFENDANT RECEIVED INEFFECTIVE
            ASSISTANCE OF TRIAL COUNSEL, HE IS
            ENTITLED TO POST-CONVICTION RELIEF,
            INCLUDING AN EVIDENTIARY HEARING.

                  (a) Trial counsel failed to advise Defendant that
                  the guilty plea in Middlesex County would be
                  used to enhance his sentencing for charges in
                  Union County.

                                         II

      "A petitioner must establish the right to [post-conviction] relief by a

preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459

(1992). To sustain that burden, the petitioner must set forth specific facts that

"provide the court with an adequate basis on which to rest its decision." State

v. Mitchell, 126 N.J. 565, 579 (1992).

      A defendant must prove two elements to establish a PCR claim that trial

counsel was constitutionally ineffective: first, that "counsel's performance was

deficient," that is, "that counsel made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment[;]" second, that "there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different." Strickland v. Washington, 466 U.S. 668, 694 (1984); accord State v.


                                                                         A-5724-17T3
                                         7
Fritz, 105 N.J. 42, 58 (1987).      "A reasonable probability is a probability

sufficient to undermine confidence in the outcome." State v. Harris, 181 N.J.

391, 432 (2004) (quoting Strickland, 466 U.S. at 694).

      To prove the first element, a defendant must "overcome a strong

presumption that counsel exercised reasonable professional judgment and sound

trial strategy in fulfilling his responsibilities." State v. Nash, 212 N.J. 518, 542

(2013) (internal quotation marks omitted) (quoting State v. Hess, 207 N.J. 123,

147 (2011)). To prove the second element, a defendant must demonstrate "how

specific errors of counsel undermined the reliability of the finding of guilt."

United States v. Cronic, 466 U.S. 648, 659 n.26 (1984).

      Defendant repeats his earlier contentions, claiming plea counsel rendered

ineffective assistance by failing to advise him that his guilty plea subjected him

to enhanced future penalties. We disagree, finding defendant's argument lacks

substantive merit.

      Defendant failed to present evidence of plea counsel's deficient

performance. In July 2004, defendant knew he had pending charges in Union

County. The 2004 plea form stated the recommended sentence involved "only

Middlesex County matters."        The plea colloquy confirmed this fact and

defendant acknowledged it. Defendant's current assertion that plea counsel


                                                                            A-5724-17T3
                                         8
failed to properly advise him fails to satisfy Strickland's deficient performance

prong.

      We also agree with the PCR judge's alternative determination that

defendant's petition was time-barred. R. 3:22-12(a)(1). Defendant failed to

provide an explanation for his lengthy delay in filing the petition. Furthermore,

since defendant did not present a prima facie case on his PCR petition, the

interests of justice do not require a relaxation of the procedural bar.

      Affirmed.




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