                                      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                                NOT FOR PUBLICATION WITHOUT THE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-3508-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JAMES R. SMITH,

     Defendant-Appellant.
________________________

                    Submitted February 25, 2020 – Decided April 28, 2020

                    Before Judges Yannotti and Hoffman.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Cape May County, Indictment No. 02-07-
                    0494.

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

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

PER CURIAM
        Defendant James R. Smith appeals from the Law Division order denying

his petition for post-conviction relief (PCR). We affirm because defendant's

petition is time-barred under Rule 3:22-12(a)(1) and otherwise lacks merit.

                                         I.

        We briefly summarize the relevant facts on appeal, which we set forth at

length in our opinion on defendant's direct appeal. State v. Smith, Docket No.

A-1382-02 (App. Div. Oct. 5, 2004) (slip op. at 30). On August 7, 2002,

defendant abducted two teenagers at knifepoint, T.R. and D.W.,1 from the Ocean

City boardwalk. Defendant led the two victims to a deserted area near the water,

where he bound T.R. and forced D.W. to perform oral sex upon him. Defendant

then drove D.W. from Ocean City to wooded areas in Cape May and Cumberland

Counties, where he repeatedly sexually assaulted her. Afterward, defendant left

D.W. tied to a tree. Eventually, D.W. freed herself and found her way back to

the road. She flagged down a passing motorist, who brought her to the Port

Norris State Police barracks.

        D.W. was able to provide the State Police with an accurate description of

defendant, his car, and the license plate number of the car. Within two days,



1
    We use initials for the victims pursuant to R. 1:38-3(c)(12).


                                                                         A-3508-17T4
                                         2
investigators located defendant in Pennsauken and placed him under arrest.

After waiving his Miranda2 rights, defendant provided an initial statement,

claiming his encounters with T.R. and D.W. were consensual. Later that day,

after an investigator with the Cape May County Prosecutor's Office (CMCPO)

questioned him about inconsistencies in his statement, defendant told the

investigator to "get the tape-recorder," because he was ready to tell the truth.

Defendant then provided a confession in a recorded statement.

       On February 27, 2001, a Cape May County Grand Jury returned

indictment number 01-02-0129 charging defendant with one count of first-

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

degree kidnapping, N.J.S.A. 2C:13-1(b), four counts of aggravated sexual

assault, N.J.S.A. 2C:14-2(a), two counts of third-degree terroristic threats,

N.J.S.A. 2C:12-3(b), one count of fourth-degree unlawful possession of a

weapon, N.J.S.A. 2C:39-5(d), and two counts of third-degree possession of a

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d).

       On March 15, 2001, pursuant to a plea agreement, defendant pleaded

guilty to two counts of first-degree kidnapping and two counts of aggravated


2
    Miranda v. Arizona, 384 U.S. 436 (1966)



                                                                        A-3508-17T4
                                       3
sexual assault. Under the agreement, the State recommended an aggregate forty-

year sentence, with a minimum of thirty-four years without parole.

        In August 2001, defendant unsuccessfully moved to withdraw his guilty

plea. The court then sentenced defendant in accordance with the plea agreement,

imposing a forty-year sentence, with a thirty-four-year period of parole

ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-

7.2.

        On December 21, 2001, defendant filed a PCR petition. Less than three

weeks later, on January 7, 2002, defendant appealed his conviction and sentence.

On February 7, 2002, defendant withdrew his initial PCR petition due to his

pending direct appeal.

        In late December 2001, while confined in Trenton State Prison, defendant

sent Diane a pornographic picture and a terrorizing letter threatening to kill her.

A forensic document examiner opined that defendant wrote the letter.

        On February 13, 2002, the State filed a motion to withdraw from

defendant's plea agreement. The Law Division granted the motion and vacated

defendant's conviction and guilty plea. We dismissed defendant's appeal as

moot.




                                                                           A-3508-17T4
                                        4
      On February 26, 2002, a Cape May County grand jury returned indictment

number 02-02-0163 charging defendant with one count of terroristic threats,

N.J.S.A. 2C:12-3(b), and one count of witness tampering, N.J.S.A. 2C:28-5(a).

On July 30, 2002, the grand jury returned a superseding indictment, number 02-

07-00494, combining defendant's charges from indictment number 01-02-00129

and indictment number 02-02-0163.

      On August 13, 2002, a jury found defendant guilty of two counts of first -

degree kidnapping, four counts of first-degree aggravated sexual assault, three

counts of third-degree terroristic threats, two counts of possession of a knife for

an unlawful purpose, and one count of fourth-degree unlawful possession of a

knife. The court sentenced defendant to an aggregate term of 105 years, with a

lengthy period of parole ineligibility.     The trial court entered defendant's

judgment of conviction (JOC) on August 22, 2002.

      Defendant appealed his conviction and sentence, raising the following

arguments:

             POINT I

             DEFENDANT, [J.S.], CONVICTION MUST BE
             REVERSED SINCE THE TRIAL [COURT] ERRED
             IN DENYING DEFENDANT'S MOTION TO
             SUPPRESS   HIS    STATEMENT  DEPRIVING
             DEFENDANT OF HIS DUE PROCESS RIGHT TO A


                                                                           A-3508-17T4
                                        5
FAIR TRIAL (U.S. CONST. AMEND., XIV; N.J.
CONST. OF 1947, ART. I, 9, 10) (RAISED BELOW).

POINT II

THE DEFENDANT'S CONVICTION MUST BE
REVERSED SINCE DEFENDANT WAS DENIED
EFFECTIVE  ASSISTANCE     OF    COUNSEL,
PURSUANT TO U.S. CONSTITUTION, AMEND. VI.

POINT III

DEFENDANT'S CONVICTIONS ON COUNTS FIVE
AND SIX AND/OR ON COUNTS NINE AND TEN
MUST      BE    REVERSED     SINCE     THE
[SUPERSEDING]        INDICTMENT        WAS
INSUFFICIENT TO DETERMINE THE CRIME FOR
WHICH     THE    JURY    CONVICTED     THE
DEFENDANT, AND/OR ALTERNATIVELY THE
TRIAL    COURT     ERRED    IN   DENYING
DEFENDANT'S MOTION TO DISMISS COUNTS
FIVE OR SIX AT THE END OF THE STATE'S CASE
BASED UPON THE ABOVE ARGUMENT AND
FAILURE TO PROVIDE THE [SUPERSEDING]
INDICTMENT UNTIL THE DAY OF TRIAL.


POINT IV

DEFENDANT, [J.S.], CONVICTION SHOULD BE
REVERSED SINCE THE TRIAL COURT'S CHARGE
WAS       INCORRECT,   INADEQUATE       AND
CONFUSING THEREBY DEPRIVING DEFENDANT
OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL
(U.S. CONST. AMEND. XIV; N.J. CONST. OF 1947,
ART. I, 9, 10).



                                                 A-3508-17T4
                      6
POINT V

DEFENDANT'S     CONVICTION    MUST    BE
REVERSED, SINCE THE TRIAL COURT ABUSED
ITS DISCRETION IN TRANSPORTING THE JURY
TO VIEW ONE OF THE SCENES OF THE ALLEGED
CRIMES AND FAILING TO CHARGE THE JURY
THAT WHAT THEY OBSERVED ON THE
VIEWING WAS NOT EVIDENCE, BUT AN AID TO
UNDERSTANDING      EVIDENCE,   AND    BY
DENYING THE DEFENSE REQUEST TO VIEW
THE OTHER SCENES TO PUT THE VIEWING IN
CONTEXT.

POINT VI

A. THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION TO DISMISS COUNT
[THIRTEEN] AT THE END OF THE STATE'S CASE
SINCE THE STATE FAILED TO DEMONSTRATE
AN IMMEDIATE THREAT AND THE COURT
FAILED TO CHARGE THE JURY ON THE LESSER
INCLUDED    OFFENSE      OF     HARASSMENT
PURSUANT TO [N.J.S.A.] 2C:33-4.

B. IF IT WAS PROPER TO SUBMIT THE CHARGE
CONTAINED IN COUNT THIRTEEN TO THE
JURY, DEFENSE COUNSEL SHOULD HAVE
REQUESTED, OR THE COURT SHOULD HAVE
SUA SPONTE CHARGED THE LESSER INCLUDED
OFFENSE OF HARASSMENT PURSUANT TO
[N.J.S.A.] 2C:33-4.

POINT VII

THE MATTER MUST BE REMANDED TO THE
SENTENCING COURT FOR CLARIFICATION
REGARDING THE SENTENCE IMPOSED.

                                             A-3508-17T4
                    7
              POINT VIII

              THE SENTENCE IMPOSED ON DEFENDANT IS
              EXCESSIVE.

        We rejected these arguments and affirmed defendant's convictions and the

sentences imposed. We did, however, remand the matter to the trial court to

clarify the JOC regarding periods of parole ineligibility. State v. Smith, Docket

No. A-1382-02 (App. Div. Oct. 5, 2004) (slip op. at 30). Defendant also raised

ineffective assistance of counsel arguments in his initial appeal; however, we

found the record insufficient to address these arguments. We therefore denied

the arguments "without prejudice to defendant . . . rais[ing] these arguments in

a [PCR] application." Id. at 17.

        On March 7, 2005, defendant filed a pro se petition for PCR. His petition

asserted numerous claims relating to pre-trial and trial publicity and ineffective

assistance of counsel. On April 24, 2006, the PCR court entered an order stating

"the petition for [PCR] is withdrawn with prejudice."

        On January 6, 2010, defendant sent a letter to the CMCPO. In the letter,

defendant essentially requested all documents concerning the superseding

indictment against him, citing the Open Public Records Act3 (OPRA) as the basis



3
    N.J.S.A. 47-1A-1 to 13.
                                                                          A-3508-17T4
                                        8
for his request.    On January 13, 2010, the CMCPO responded that the

information requested had already been provided to his counsel or was not

available.

      On March 16, 2010, defendant filed a petition for writ of habeas corpus

with the United States District Court for the District of New Jersey. On October

6, 2010, the District Court dismissed defendant's petition as time barred. The

Supreme Court of the United States denied certiorari on January 9, 2012.

      On December 20, 2013, defendant filed another pro se petition for PCR,

again alleging that he was denied effective assistance of counsel. Defendant

also asserted the trial court erred in various respects and accused the State of

withholding certain exculpatory evidence. Defendant sought an evidentiary

hearing on his petition. On July 25, 2014, the PCR court entered an order

denying the petition. The order stated that the petition was defendant's "second

or subsequent petition." The order also stated that the petition was denied based

on the court's April 24, 2006 order, which stated that defendant's first PCR

petition had been withdrawn with prejudice.

      Defendant appealed and raised the following single argument:

             THE JUDGE BELOW ERRED IN DISMISSING THE
             DEFENDANT'S MOTION FOR POST-CONVICTION
             RELIEF, AS IT WAS DEFENDANT'S FIRST POST-
             CONVICTION      RELIEF   MOTION,      HIS

                                                                         A-3508-17T4
                                       9
               PREVIOUSLY FILED MOTION HAVING BEEN
               WITHDRAWN WITH PREJUDICE WITHOUT
               BEING HEARD ON THE MERITS AS REQUIRED
               BY COURT RULES AND LEGAL PRECEDENT.

         We reversed and remanded, concluding the PCR court erred by treating

the December 20, 2013 petition as "a second or subsequent petition" under Rule

3:22-4(b). We concluded the court mistakenly relied on the fact the order

withdrawing defendant's March 7, 2005 PCR petition stated it was withdrawn

"with prejudice," even though the court never ruled on the merits of defendant's

claims. State v. Smith, Docket No. A-5937-13 (App. Div. Jan. 9, 2017) (slip op.

at 8).

         In addition, we provided the PCR court with the following instructions:

               On remand, the PCR court shall appoint counsel to
               represent defendant, R. 3:22-6(a), and shall afford
               counsel time in which to file an amended petition. The
               amended petition must include facts showing that
               defendant's failure to file a timely petition was due to
               "excusable neglect." The amended petition must also
               address whether, if defendant's factual claims are found
               to be true enforcement of the time[-]bar "would result
               in a fundamental injustice." The PCR court will then
               determine whether the time[-]bar should be enforced
               and, if not, the court should address the merits of
               defendant's claims.
               [Id. at 9]

         Accordingly, defendant's PCR counsel filed a brief contending the PCR

court should relax the time-bar under the circumstances. On October 20, 2017,

                                                                          A-3508-17T4
                                         10
defendant filed a motion with the PCR court requesting the court to compel

production of PCR discovery from the CMCPO. In the motion, defendant sought

the same documents he previously requested in his OPRA request.

      On December 6, 2017, defendant appeared with PCR counsel before Judge

John C. Porto, who heard oral argument on defendant's petition and motion. On

January 30, 2018, Judge Porto denied defendant's petition as time-barred.

      Defendant now appeals, raising the following point of argument:

                  POINT ONE

                  THE PCR COURT ERRONEOUSLY RULED
                  THAT [J.S.] PETITION WAS TIME[-]BARRED
                  BECAUSE ANY DELAY IN FILING THE
                  PETITION WAS DUE TO DEFENDANT'S
                  EXUSABLE NEGLECT AND THERE IS A
                  REASONABLE PROBABLITY THAT IF THE
                  DEFENDANT'S FACTUAL ASSERTIONS
                  WERE       FOUND     TO    BE     TRUE,
                  ENFORCEMENT OF THE TIME BAR WOULD
                  RESULT IN A FUNDAMENTAL INJUSTICE.

                                      II.

      After considering the record and the briefs, we conclude defendant's

argument lacks substantive merit. We affirm substantially for the reasons stated

by Judge Porto in his cogent oral opinion. We add the following comments.

      Our court rules preclude PCR petitions filed more than five years after

entry of a judgment of conviction unless the delay was "due to defendant's

                                                                        A-3508-17T4
                                      11
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 . . . ." R. 3:22-12(a)(1)(A). 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

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)). Furthermore,

"[a]bsent compelling, extenuating circumstances, the burden of justifying a

petition filed after the five-year period will increase with the extent of the

delay." Mitchell, 126 N.J. at 580.




                                                                             A-3508-17T4
                                        12
      Here, notwithstanding our clear directions, defendant failed to set forth

facts that show his failure to file a timely petition was due to excusable neglect.

Judge Porto correctly concluded that the five-year limitation period began to run

from the date of defendant's JOC and was not stayed by the filing or pendency

of his direct appeal or federal habeas proceedings.         Moreover, defendant

displayed his ability to pursue claims within the legal system on his own, made

evident from his numerous appeals, motions, petitions for habeas corpus and a

writ of certiorari, and three filed PCR petitions.

      Excusable neglect requires more than simply providing reasons why a

petition was filed beyond the five-year window. As Judge Porto explained:

            Ultimately against this factual landscape of petitioner's
            case, this [c]ourt rejects the petitioner's contention that
            his petition should not be time[-]barred due to his
            pursuit of relief in other courts. The [c]ourt also rejects
            his argument that the petition should be heard to avoid
            a miscarriage of justice, as he does not even provide a
            scintilla of evidence or reason to support that bald
            conclusion. State law in this regard is very clear that a
            bare allegation is not sufficient to elude the time[-]bar.
            In other words, if the petitioner does not allege
            sufficient facts, the court bars the claim.

            In a diligent and deferential search of petitioner's
            petition, this [c]ourt cannot find anywhere where
            [defendant] articulates or explains any fact for which
            this [c]ourt may consider excusable neglect. . . .

                   ....

                                                                           A-3508-17T4
                                       13
            When he was specifically required to articulate why he
            should not be time[-]barred in this matter, he simply
            provided no fact or facts from which this [c]ourt could
            consider.

      Defendant's remaining arguments are based on bald assertions without

evidential support in the record, and otherwise lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




                                                                        A-3508-17T4
                                      14
