                                      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                                NOT FOR PUBLICATION WITHOUT THE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-4716-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

M.E.,1

          Defendant-Appellant.


                   Submitted August 5, 2019 – Decided August 9, 2019

                   Before Judges Sabatino and Rose.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hudson County, Indictment No. 08-04-0703.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Monique D. Moyse, Designated Counsel, on
                   the brief.)

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



1
     We use initials to protect the privacy of the victims.
PER CURIAM

      Defendant M.E. appeals from the denial of his petition for post-conviction

relief (PCR) without an evidentiary hearing. We affirm substantially for the

reasons stated by Judge John A. Young, Jr. in his cogent written opinion, but

remand for a correction of the judgment of conviction (JOC), consistent with his

oral order.

      Because Judge Young's opinion thoroughly and correctly addressed all of

defendant's PCR issues, a brief summary will suffice.        In January 2008,

defendant stood naked, thrusting his hips in front of a large picture window of

his second-floor Harrison apartment.       Two girls under the age of sixteen

observed him. Following his arrest, defendant was charged in a nine-count

Hudson County indictment. Thereafter, defendant pled guilty to one count of

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

to a negotiated plea agreement with the State.

      In October 2008, the court imposed a three-year suspended sentence with

various conditions, including outpatient sex offender treatment. Defendant also

was ordered to comply with Megan's Law and was subject to Parole Supervision

for Life (PSL). The court dismissed the remaining counts of the indictment




                                                                        A-4716-17T1
                                       2
pursuant to the plea agreement. Defendant did not file a direct appeal, nor did

he file a motion to vacate his guilty plea.

      More than eight years later, defendant filed pro se the PCR petition under

review. Defendant claimed he was "somehow" sentenced to PSL and Megan's

Law, but that these conditions were not set forth in the JOC. 2 Appointed PCR

counsel elaborated that plea counsel's performance was deficient by failing to

explain the conditions of PSL and Megan's Law, and failing to review discovery

and discuss with defendant potential defenses and motions. Defendant also

claimed he was entitled to withdraw his guilty plea under State v. Slater, 198

N.J. 145 (2009), because "he was denied effective assistance of counsel and

. . . did not understand the penal consequences of his plea."

      On appeal, defendant primarily renews the arguments he made before the

PCR court. More particularly, he contends:

            POINT ONE

            [DEFENDANT]   IS  ENTITLED    TO   AN
            EVIDENTIARY HEARING ON HIS CLAIM THAT
            HIS ATTORNEY RENDERED INEFFECTIVE
            ASSISTANCE OF COUNSEL BY FAILING TO

2
  During oral argument, the PCR judge noted the JOC did not accurately set
forth defendant's suspended sentence nor the collateral consequences of his plea,
and ordered that the JOC should be amended accordingly. Because the parties
did not provide an amended JOC on appeal, nor otherwise indicate the JOC was
amended, we remand for the limited purpose of correcting the JOC.
                                                                         A-4716-17T1
                                         3
            INFORM    HIM   ADEQUATELY     OF    THE
            REQUIREMENTS AND CONSEQUENCES OF
            PAROLE SUPERVISION FOR LIFE, AND FAILING
            TO REVIEW HIS DEFENSES AND DISCOVERY
            WITH HIM.

            POINT TWO

            THIS MATTER MUST BE REMANDED FOR
            FINDINGS OF FACT AND CONCLUSIONS OF
            LAW ON [DEFENDANT]'S CLAIM THAT HIS
            GUILTY PLEA MUST BE SET ASIDE UNDER
            STATE V. SLATER, 198 N.J. 145 (2009).

            POINT THREE

            IN THE ALTERNATIVE, [DEFENDANT]'S GUILTY
            PLEA MUST BE SET ASIDE.

            POINT FOUR

            THE PCR COURT ERRONEOUSLY RULED THAT
            [DEFENDANT]'S PETITION WAS TIME BARRED
            BECAUSE ANY DELAY IN FILING THE PETITION
            WAS DUE TO DEFENDANT'S EXCUSABLE
            NEGLECT AND THERE IS 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.

      We have carefully considered these arguments, in light of the applicable

law, and conclude they lack sufficient merit to warrant extended discussion in

a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons set


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                                       4
forth by Judge Young in his well-reasoned written decision, and add the

following brief remarks.

      In order to establish a prima facie claim, a defendant's petition must

satisfy the time limits for filing a claim. See State v. Echols, 199 N.J. 344, 357

(2009). Rule 3:22-12(a)(1) provides that a defendant's first petition for PCR

shall be filed no more than five years after the entry of the JOC. Subsection

(A) of the Rule permits a PCR court to relax the five-year time bar if the petition

alleges facts demonstrating the filing was untimely due to defendant's excusable

neglect and there is a reasonable probability that, if defendant's factual

assertions were found to be true, enforcement of the time bar would res ult in a

fundamental injustice.     Nonetheless, "[t]he concept of excusable neglect

encompasses more than simply providing a plausible explanation for a failure

to file a timely PCR petition." State v. Norman, 405 N.J. Super. 149, 159 (App.

Div. 2009). If the petitioner fails to allege sufficient facts, the Rule bars the

claim. State v. Mitchell, 126 N.J. 565, 576 (1992).

      Here, the JOC was entered in October 2008, and defendant's PCR petition

was filed more than eight years later in January 2017. Defendant asserts he

established excusable neglect because "he did not understand the consequences

of his plea . . . and there would be a fundamental injustice if a court did not

                                                                            A-4716-17T1
                                         5
reach the merits of [his] petition." As Judge Young aptly recognized, however,

defendant's claims are nothing more than bald assertions.            See State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Indeed, defendant

failed to file an affidavit or certification to support those assertions. According

to the judge, defendant "has been compliant with the terms of his [PSL] since

he was sentenced in 2008[,]" and "never expressed to the [c]ourt on the record

or in writing that he did not understand [PSL] in the more than [eight] years that

he ha[d] been complying with the requirement."

      Moreover, the record belies defendant's claims. For example, at the plea

hearing, defendant acknowledged he would "be placed on Parole Supervision

for the remainder of [his] life." Contrary to defendant's contention, the plea

form specifically states he would be subject to PSL (and Megan's Law) in his

answer to question thirteen.      Defendant's initials are placed next to that

paragraph and on the bottom of the same page.

      Defendant also acknowledged he "had enough time to discuss this case,

its facts, it[]s circumstances, as well as [his r]ights and any defenses that [he]

might have to this charge with [his] lawyer before deciding to plead guilty[.]"

Further, he said he did not have "any remaining questions" for his plea counsel

or the court "regarding the terms or conditions of the [plea a]greement."

                                                                            A-4716-17T1
                                         6
      Because defendant failed to establish excusable neglect for his untimely

filing, and his assertion that enforcement of the time bar would result in a

fundamental injustice finds no support in the record, the judge correctly

determined defendant's PCR petition was barred under Rule 3:22-12(a)(1). For

those same reasons, we also agree with Judge Young's ensuing analysis of the

merits of defendant's contentions, and the judge's ultimate conclusion that

defendant's claims were unsupported by the record. Because there was no prima

facie showing of ineffective assistance of counsel, an evidentiary hearing was

not necessary to resolve defendant's PCR claims. State v. Preciose, 129 N.J.

451, 462 (1992); R. 3:22-10(b).

      Nor are we persuaded by defendant's alternate arguments that we should

remand this matter for findings of fact and conclusions of law regarding

defendant's belated Slater3 argument, or vacate his guilty plea. Piggybacking



3
   In Slater, our Supreme Court set forth four factors for courts to consider in
deciding a defendant's motion to withdraw a guilty plea: "(1) whether the
defendant has asserted a colorable claim of innocence; (2) the nature and
strength of defendant's reasons for withdrawal; (3) the existence of a plea
bargain; and (4) whether withdrawal would result in unfair prejudice to the State
or unfair advantage to the accused." 198 N.J. at 157-58. Where, as here, the
application is post-sentence, a defendant must demonstrate that a "manifest
injustice" occurred. Id. at 158. "[E]fforts to withdraw a plea after sentencing
must be substantiated by strong, compelling reasons." Id. at 160 (citing R. 3:2-
1).
                                                                         A-4716-17T1
                                       7
on his ineffective assistance of counsel claim, defendant claims he should be

permitted to withdraw his plea because his attorney failed to inform him of the

PSL consequences of his plea. As we stated above, Judge Young correctly

concluded defendant's claims were nothing more than bald assertions. The

judge also expressly recognized defendant "never claimed innocence of the

charges." See Slater, 198 N.J. at 158. Although the judge did not specifically

address each Slater factor in denying defendant's untimely petition on the

merits, we are satisfied from our review of the record, that defendant's

application failed to satisfy those factors and failed to demonstrate a manifest

injustice occurred. See State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div.

2014) (citing State v. Harris, 181 N.J. 391, 420-21 (2004)) ("[W]here[, as here,]

the [PCR] court does not hold an evidentiary hearing, we may exercise de novo

review over the factual inferences the trial court has drawn from the

documentary record.").

      Affirmed in part, remanded solely for the entry of a corrected JOC. We

do not retain jurisdiction.




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