                        NOT FOR PUBLICATION WITHOUT THE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-3682-15T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

SAMMY MOORE,

     Defendant-Appellant.
_____________________________

              Submitted August 15, 2017 – Decided August 28, 2017

              Before Judges Manahan and Gilson.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment No. 94-
              06-0636.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Alan I. Smith, Designated
              Counsel, on the brief).

              Grace H. Park, Acting Union County Prosecutor,
              attorney for respondent (Stephen William
              Bondi, Special Deputy Attorney General/Acting
              Assistant Prosecutor, of counsel and on the
              brief; Izabella M. Wozniak, Special Deputy
              Attorney General/Acting Assistant Prosecutor,
              of counsel and on the brief).

              Appellant filed a pro se supplemental brief.
PER CURIAM

     Defendant Sammy Moore appeals from an August 21, 2015 order

denying his second petition for post-conviction relief (PCR).1 The

PCR court held that defendant's second petition was untimely under

Rule 3:22-12(a)(2).   We affirm.

                                   I.

     In 1994, a jury convicted defendant of first-degree murder,

N.J.S.A. 2C:11-3(a)(1), first-degree attempted murder, N.J.S.A.

2C:11-3(a)(1) and N.J.S.A. 2C:5-1, two counts of first-degree

robbery, N.J.S.A. 2C:15-1, and five related offenses.   Defendant

was sentenced to an aggregate term of life in prison with forty

years of parole ineligibility.

     On direct appeal, following a remand for an evidentiary

hearing, we affirmed defendant's convictions with the exception

of one robbery conviction, which we reversed.     State v. Moore,

Docket No. A-4956-94 (App. Div. April 18, 1997).      The Supreme

Court denied certification.   State v. Moore, 152 N.J. 11 (1997).

     The facts underlying defendant's convictions were set forth

in detail in this court's 1997 unpublished opinion and need not

be repeated.   In summary, the evidence at trial established that

defendant, together with four companions, went to Plainfield with


1
  The order was dated August 21, 2015, and filed on August 24,
2015.

                                   2                       A-3682-15T1
a plan to commit armed robbery.       While in Plainfield, defendant

shot and killed one victim, M.B., and shot, but did not kill, a

second victim, K.S.2    Defendant gave statements admitting to the

murder and shooting.    Defendant was also found to be in possession

of the murder victim's car.

        In 1998, defendant filed his first petition for PCR.        He

contended that his trial counsel had been ineffective for failing

to request a specific instruction on intent, failing to challenge

the jury array, failing to challenge one of the robbery charges,

failing to request that the verdict be set aside pursuant to Rule

3:18-2, and failing to adequately investigate the facts and present

a meaningful defense.     Defendant also argued that his appellate

counsel on his direct appeal had been ineffective in failing to

raise the jury array issue.

        Defendant's first PCR petition was denied in 2000 by the

trial court, and we affirmed that denial in 2002.    State v. Moore,

Docket No. A-1743-00 (App. Div. October 24, 2002).       The Supreme

Court denied certification.    State v. Moore, 179 N.J. 371 (2004).

        On June 25, 2015, defendant filed his second petition for

PCR.3    In that petition, defendant claimed that his trial counsel


2
  We use initials to protect the privacy interest of the victims.
3
  In February 2015, defendant filed a motion for a new trial. He
was assigned counsel and, after conferring with counsel, defendant


                                  3                          A-3682-15T1
had been ineffective in failing to object to a photograph shown

to K.S., the victim who was shot but did not die.                   Defendant

contended that the prosecutor misled the jury into believing that

the photograph depicted defendant, when the photograph actually

depicted a co-defendant.       Thus, defendant argued that his trial

counsel was ineffective in failing to object to the use of the

photograph.      Indeed, defendant contended that his trial counsel

believed that the photograph was a photograph of him.

     The   trial    court   denied   defendant's    second    PCR    petition

without a hearing by issuing an order stating "that the [second]

petition   for     post-conviction    relief   is    hereby    denied      for

untimeliness pursuant to [Rule] 3:22-12(a)(2)."

     Defendant now appeals the order denying his second petition

for PCR.   On appeal, defendant was assigned counsel, who presents

two arguments for our consideration:

           POINT I – THE ORDER SUMMARILY DENYING
           DEFENDANT'S    SECOND   PETITION    FOR   POST-
           CONVICTION RELIEF SHOULD BE REVERSED AND THE
           MATTER REMANDED TO THE PCR COURT TO MAKE
           SPECIFIC    FINDINGS    EXPLAINING    WHY   THE
           REMEDIATION    OF    DEFENDANT'S    "FUNCTIONAL
           ILLITERACY"   WAS   NOT   A   TIMELY   "FACTUAL
           PREDICATE" FOR A SECOND PETITION AND WAS NOT
           "GOOD CAUSE" TO ASSIGN COUNSEL TO REPRESENT
           DEFENDANT



withdrew his motion for a new trial and, instead, filed his second
PCR petition.

                                     4                                A-3682-15T1
           POINT II – THE ORDER DENYING POST-CONVICTION
           RELIEF SHOULD BE REVERSED AND THE MATTER
           REMANDED FOR AN EVIDENTIARY HEARING BECAUSE
           TRIAL COUNSEL'S BELIEF THAT DEFENDANT WAS THE
           PERSON WHO WAS DEPICTED IN PHOTOGRAPH S-18 WAS
           PRIMA FACIE PROOF OF INEFFECTIVE ASSISTANCE
           OF COUNSEL

     Defendant also filed a pro se brief, presenting the following

two additional arguments for our consideration:

           POINT ONE

           THE ORDER DENYING DEFENDANT'S SECOND PCR
           PETITION WITHOUT ADDRESSING HIS CLAIMS OF
           FUNDAMENTAL INJUSTICE ARTICULATED IN HIS
           CERTIFICATION IN SUPPORT OF THE PCR PETITION
           OR PERMITTING DEFENDANT AN OPPORTUNITY TO
           BRIEF HIS ISSUES AND THE EXCEPTIONS TO ANY
           PROCEDURAL BARS AMOUNTED TO AN ABUSE OF
           DISCRETION THEREFORE THE MATTER SHOULD BE
           REMANDED []

           POINT TWO

           DEFENDANT WAS SUBJECTED TO CONSTRUCTIVE DENIAL
           OF PCR COUNSEL WHEN COUNSEL FAILED TO RAISE
           THE CLAIMS OF INEFFECTIVE ASSISTANCE OF TRIAL
           AND APPELLATE COUNSEL FOR THEIR FAILURE TO
           RAISE PROSECUTORIAL MISCONDUCT WHEN THE
           STATE'S ATTORNEY MISREPRESENTED THE PHOTO THAT
           THE VICTIM, [K.S.], IDENTIFIED AS THE SHOOTER
           []

                                II.

     Petitions for PCR are governed by time limitations, which are

set forth in Rule 3:22-12.    The first petition for PCR generally

must be filed within five years after the date of the entry of the

judgment   of   conviction.    R.     3:22-12(a)(1).   To   warrant


                                 5                          A-3682-15T1
consideration of a first petition after the five years, defendant

must show both 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."        Ibid.

      A second or subsequent petition for PCR must be filed within

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).]

      Here, defendant is seeking to appeal the denial of his second

PCR petition.      Consequently, Rule 3:22-12(a)(2) governs.             Under

Rule 3:22-4(b),

            [a] second or subsequent petition for post-
            conviction relief shall be dismissed unless:

                                       6                             A-3682-15T1
               (1) it is       timely     under   [Rule]     3:22-
          12(a)(2); and

                (2) it alleges on its face either:

               (A) that the petition relies on a new
          rule of constitutional law, made retroactive
          to defendant's petition by the United States
          Supreme Court or the Supreme Court of New
          Jersey, that was unavailable during the
          pendency of any prior proceedings; or

               (B) that the factual predicate for the
          relief sought could not have been discovered
          earlier through the exercise of reasonable
          diligence, and the facts underlying the ground
          for relief, if proven and viewed in light of
          the evidence as a whole, would raise a
          reasonable probability that the relief sought
          would be granted; or

               (C) that the petition alleges a prima
          facie case of ineffective assistance of
          counsel that represented the defendant on the
          first or subsequent application for post-
          conviction relief.

     Defendant, here, is not contending that there is a new rule

of constitutional law.       Instead, he contends that he could not

have discovered his trial counsel's alleged ineffective assistance

as it related to the photograph because he was "functionally

illiterate."    In support of that argument, defendant filed a

certification   contending    that   he    had    learning    deficiencies.

Defendant went on to explain that it was only in 1999 that he




                                     7                               A-3682-15T1
acquired a GED certificate.4         Defendant also contends that it was

not until 2013, when he began to take college-level courses, that

he came to realize that his prior reliance on trial counsel's

presumed competence was mistaken.          Thus, defendant argues that his

second PCR petition was timely and the trial court should have

considered it on its merits.

       Having considered the arguments presented by defendant's

assigned counsel, as well as his pro se arguments, we reject

defendant's    contentions     and   affirm   the   denial    of    his    second

petition for PCR for two related reasons.

       First, defendant's second PCR petition failed to comply with

the time restrictions set forth in Rule 3:22-12(a)(2).                    In his

certification in support of the second petition, defendant claims

that    he   was    "functionally    illiterate"    and      that    illiteracy

prevented     him    from   discovering     trial   counsel's       ineffective

assistance concerning the photograph.          In the same certification,

however, defendant acknowledged that he received his GED in 1999

and that he took college-level courses in 2013 that gave him the

analytical ability to recognize that his trial counsel had been

ineffective.        Thus, at the latest, defendant was literate and



4
 The GED is a nationally recognized standardized test that allows
the test-takers to receive a certification equivalent of a high
school diploma.

                                       8                                  A-3682-15T1
recognized his trial counsel's alleged ineffectiveness in 2013.

Defendant, however, waited more than one year after 2013 to file

his second petition for PCR in 2015.         Thus, the petition is time-

barred.   See R. 3:22-12(a)(2); see also State v. Brewster, 429

N.J. Super. 387, 398 (App Div. 2013).        Moreover, even if this was

a first PCR petition, there is nothing in the record that would

support "exceptional circumstances" warranting an extension of the

time limitations.   See State v. Goodwin, 173 N.J. 583, 594 (2002).

     Second, defendant has failed to allege facts, which if proven

and viewed in the light of the evidence as a whole, would raise a

reasonable probability that the relief sought would be granted.

R. 3:22-4(b).   In affirming defendant's convictions on his direct

appeal, we reviewed the detailed evidence that was presented

against   defendant.      That    evidence   included    defendant's   own

admissions,   testimony    from   various    witnesses   who   identified

defendant near the scene of the crime, and that defendant was in

possession of the murder victim's car.         Even if trial counsel had

challenged the use of the photograph, defendant has not presented

a prima facie showing that he was prejudiced by such alleged

ineffective assistance.     See Strickland v. Washington, 466 U.S.

668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984);

State v. Fritz, 105 N.J. 42, 60-61 (1987) (requiring defendant to

establish that "there is a reasonable probability that, but for

                                     9                            A-3682-15T1
counsel's unprofessional errors, the result of the proceeding

would have been different.").

     Indeed,     the   State   argues    that   defendant     incorrectly

characterized the use of the photograph during trial and that

there was no ineffective assistance of counsel.             During trial,

victim K.S. did not identify defendant or co-defendant based on

the photograph that was provided to him by the State.            Instead,

K.S. told the jury that he was "not positively sure" that the

photograph depicted someone who shot him and he did not get a

clear look at the shooter's face.       As such, K.S.'s testimony could

not have misled the jury into believing that the photograph

depicted defendant.

     We also reject defendant's argument that the matter should

be reversed because the trial court summarily denied defendant's

second petition without sufficient explanation.        The trial court

did not hold a hearing nor did the court explain the reasons for

its order.     We note that that is not the best practice.         See R.

1:7-4(a) (stating that the trial court "shall, by an opinion or

memorandum decision, either written or oral, find the facts and

state its conclusions of law thereon in all actions tried without

a jury, on every motion decided by a written order that is

appealable as of right, and also as required by [Rule] 3:29.").

Nevertheless, the record in this case allows us to review the

                                  10                              A-3682-15T1
facts, which established that defendant failed to comply with the

time constraint set forth in Rule 3:22-12(a)(2).                  Accordingly,

there is no basis to remand this matter for further review or a

hearing.

     Finally, defendant's contentions that his PCR counsel was

ineffective   lack   merit.      Defendant      asserts    only     conclusory

contentions   that   do   not   establish   a   prima     facie    showing    of

ineffective assistance by PCR counsel.            State v. Marshall, 148

N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L.

Ed. 2d 88 (1997); see also State v. Cummings, 321 N.J. Super. 154,

170 (App. Div.), certif. denied, 162 N.J. 199 (1999) ("[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 must allege facts sufficient to demonstrate

counsel's alleged substandard performance.").

     Affirmed.




                                   11                                  A-3682-15T1
