                                NOT FOR PUBLICATION WITHOUT THE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-4742-16T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOHN J. LAWLESS, a/k/a
JOHN GRANOZO, JOHN
LAWLESS, JR.,

     Defendant-Appellant.
________________________

                    Submitted November 27, 2018 – Decided January 14, 2019

                    Before Judges Gilson and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Cape May County, Indictment No. 10-01-
                    0022.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Alison S. Perrone, Designated Counsel, on
                    the brief).

                    Jeffrey H. Sutherland, Cape May County Prosecutor,
                    attorney for respondent (Gretchen A. Pickering,
                    Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant John J. Lawless appeals from an April 7, 2017 order denying

his petition for post-conviction relief (PCR) without an evidentiary hearing. He

contends that the PCR court erroneously denied his petition as untimely and that

he was entitled to an evidentiary hearing because he established a prima facie

case of ineffective assistance of counsel. We disagree and affirm. Defendant's

PCR petition was time-barred and otherwise lacked merit.

                                     I.

      In September 2009, defendant attended a gathering of motorcyclists.

While at the gathering, defendant consumed twelve beers. He then began to

drive home. As he was driving, he blacked out, crossed the centerline of the

roadway, and struck an oncoming car. The driver of the other car died. The

driver's wife and daughter, who were passengers, were both injured. Defendant

had previously been arrested for driving while intoxicated seven times and

convicted of that offense four times. At the time of the accident, his license was

suspended.

      In September 2010, defendant pled guilty to first-degree aggravated

manslaughter, N.J.S.A. 2C:11-4(a), and driving while intoxicated, N.J.S.A.

39:4-50. At sentencing, the trial court found no mitigating factors and four


                                                                          A-4742-16T2
                                          2
aggravating: factor two, N.J.S.A 2C:44-1(a)(2) (gravity and seriousness of

harm); factor three, N.J.S.A 2C:44-1(a)(3) (risk of re-offending); factor six,

N.J.S.A 2C:44-1(a)(6) (prior criminal record); and factor nine, N.J.S.A 2C:44-

1(a)(9) (need for deterrence). Defendant was then sentenced to thirty years in

prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

      On direct appeal, defendant challenged only his sentence. We remanded

for resentencing because aggravating factors two and six were not supported by

the record. State v. Lawless, 423 N.J. Super. 293 (App. Div. 2011), aff'd, 214

N.J. 594 (2013). The Supreme Court affirmed and held that the facts used to

support aggravating factor two actually supported factor one, N.J.S.A 2C:44 -

1(a)(1) (nature and circumstances of the offense). Lawless, 214 N.J. at 615.

      At the resentencing, conducted in August 2013, the court found

aggravating factors one, three, and nine, but no mitigating factors. Defendant

was sentenced to twenty-four years in prison subject to NERA. Defendant

appealed his second sentence, but we affirmed. State v. Lawless, No. A-0830-

13 (App. Div. Aug. 21, 2015) (slip op. at 5). Thereafter, on November 25, 2015,

the Supreme Court denied defendant's petition for certification.       State v.

Lawless, 223 N.J. 554 (2015).




                                                                        A-4742-16T2
                                       3
      On April 8, 2016, defendant filed a petition for PCR. He was assigned

counsel and the PCR court heard oral argument on January 30, 2017. On March

29, 2017, the court read into the record its oral decision denying defendant's

petition, and on April 7, 2017, the court entered an order memorializing that

decision. The PCR court determined that the petition was untimely under Rule

3:22-12(a)(1), and defendant failed to establish a basis to relax the time bar. The

PCR court also found that the petition failed to establish a prima facie case of

ineffective assistance of counsel.

                                      II.

      On this appeal, defendant makes two arguments, which he articulates as

follows:

            POINT ONE – THE PCR COURT ERRED IN
            CONCLUDING THAT DEFENDANT'S PETITION
            FOR POST-CONVICTION RELIEF WAS TIME
            BARRED BECAUSE DEFENDANT'S FAILURE TO
            FILE HIS PETITION WITHIN FIVE YEARS OF HIS
            CONVICTION WAS DUE TO EXCUSABLE
            NEGLECT AND ENFORCEMENT OF THE TIME
            BAR WOULD RESULT IN A FUNDAMENTAL
            INJUSTICE.

            POINT TWO – DEFENDANT WAS ENTITLED TO
            AN EVIDENTIARY HEARING ON HIS CLAIM OF
            INEFFECTIVE ASSISTANCE OF PLEA COUNSEL
            FOR FAILING TO ARGUE THAT THE RESULTS OF
            DEFENDANT'S BLOOD TEST SHOULD HAVE
            BEEN SUPPRESSED BECAUSE THE BLOOD WAS

                                                                           A-4742-16T2
                                            4
              DRAWN WITHOUT CONSENT AND WITHOUT A
              WARRANT.

We reject defendant's arguments and find his petition was time-barred.

Moreover, defendant's PCR petition lacks substantive merit.

      Rule 3:22-12(a)(1)(A) 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 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[.]" 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) (second alteration in original) (quoting State v. Afanador, 151 N.J. 41,

52 (1997)).

      To establish "excusable neglect," a defendant must demonstrate "more

than simply . . . a plausible explanation for a failure to file a timely PCR

petition." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). Factors

to be considered include "the extent and cause of the delay, the prejudice to the

State, and the importance of the [defendant's] claim in determining whether



                                                                             A-4742-16T2
                                         5
there has been an 'injustice' sufficient to relax the time limits." Afanador, 151

N.J. at 52 (citing State v. Mitchell, 126 N.J. 565, 580 (1992)).

      Here, defendant was first sentenced on November 12, 2010. His petition

for PCR, however, was filed over five years later on April 8, 2016. Defendant

argues excusable neglect existed because he appealed his sentence, there was a

remand for resentencing, and then he appealed his second sentence. Defendant

contends that it was only in November 2015, after the Supreme Court denied his

petition for certification from the affirmance of his second sentence, that he

began to focus on a PCR to challenge his conviction.

      There are two problems with that argument. First, as defendant himself

acknowledges, the pendency of a direct appeal does not toll the running of the

five-year limitation period imposed by Rule 3:22-12. State v. Dugan, 289 N.J.

Super. 15, 19 (App. Div. 1996).

      Second, defendant's appeal of his sentence is not excusable neglect for

failing to file a timely petition to challenge his underlying conviction. Initially,

it is important to point out that defendant is seeking to challenge his conviction

for aggravated manslaughter.         Consequently, the relevant judgment of

conviction is defendant's first sentence imposed on November 12, 2010.

Defendant did not challenge his conviction on his direct appeal.           Instead,


                                                                            A-4742-16T2
                                         6
defendant only challenged his sentence. See Lawless, 423 N.J. Super. at 298.

When the Supreme Court accepted certification, it did so on the State's motion

for leave to appeal concerning the interpretation of aggravating factor two. See

Lawless, 214 N.J. at 605.

      Defendant argues that his trial counsel was ineffective in failing to move

to suppress his blood draw. At the time that defendant pled guilty in 2010, the

general understanding was that warrantless blood draws were allowed on the

basis of alcohol dissipation. See State v. Adkins, 221 N.J. 300, 316 (2015). In

his PCR petition, defendant relies on the United States Supreme Court ruling in

Missouri v. McNeely, 569 U.S. 141 (2013), which held that there is no per se

rule of exigency based on alcohol dissipation and a warrantless blood draw

required a showing of exigency based on the totality of the circumstances. Id.

at 156. Following McNeely, our Supreme Court held that the McNeely totality-

of-the-circumstances analysis was to be given pipeline retroactivity to cases that

were still on direct appeal. Adkins, 221 N.J. at 316-17.

      Since defendant is relying on McNeely as a basis for his argument

concerning ineffective assistance of counsel, he should have filed his PCR

petition in 2013 when McNeely was decided. Even after the Adkins decision

was issued on May 4, 2015, defendant still had time within the permissible five


                                                                          A-4742-16T2
                                        7
years to file his petition. Defendant, however, waited over ten months after

Adkins was decided, and nearly five months after the expiration of his five-year

period, to file his PCR petition. Thus, defendant has not shown excusable

neglect.

      Even if we were to consider the merits of his petition, defendant has failed

to establish a prima facie showing of ineffective assistance of counsel. To

prevail on an ineffective assistance of counsel claim, defendant must

demonstrate (1) that counsel's performance "fell below an objective standard of

reasonableness," and (2) "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, 688, 694 (1984); see also State v. Fritz,

105 N.J. 42, 58 (1987) (adopting the Strickland standard in New Jersey). To set

aside a guilty plea based on ineffective assistance of counsel, a defendant must

show "that there is a reasonable probability that, but for counsel's errors, [ the

defendant] would not have pled guilty and would have insisted on going to trial."

State v. DiFrisco, 137 N.J. 434, 457 (1994) (alteration in original) (quoting Hill

v. Lockhart, 474 U.S. 52, 59 (1985)).

      Here, defendant failed to show a prima facie case of either prong of the

Strickland test. As already noted, at the time that defendant pled guilty in 2010,


                                                                          A-4742-16T2
                                        8
the accepted understanding was that a warrantless blood draw was legal because

the dissipation of alcohol constituted an exigency justifying a warrantless

search. See Adkins, 221 N.J. at 316. Accordingly, defendant's counsel was not

ineffective in failing to make a motion to suppress the blood draw.

      Defendant has also made no showing that a motion to suppress his blood

draw would have been successful even under the McNeely totality-of-the-

circumstances test. If the State can show exigent circumstances, a warrantless

blood draw is lawful. McNeely, 569 U.S. at 156. Defendant's blood was drawn

after a fatal automobile accident, during which two passengers were also injured.

Defendant, himself, had blacked out.        In his petition, however, defendant

presented no facts that such a fatal accident did not involve exigent

circumstances under the McNeely totality-of-the-circumstances test. Therefore,

defendant has also failed to make a prima facie showing of the second,

prejudicial prong of the Strickland test.

      Finally, there was no showing that required an evidentiary hearing on

defendant's PCR petition. A defendant is entitled to an evidentiary hearing on a

PCR petition only if he or she establishes a prima facie case in support of the

petition. R. 3:22-10(b). "To establish a prima facie case, defendant must

demonstrate a reasonable likelihood that his or her claim, viewing the facts


                                                                         A-4742-16T2
                                        9
alleged in the light most favorable to the defendant, will ultimately succeed on

the merits." Ibid.; see also State v. Porter, 216 N.J. 343, 355 (2013); State v.

Preciose, 129 N.J. 451, 462-63 (1992). As we have just summarized, defendant

did not present a prima facie showing.

      Affirmed.




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