                                      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                                NOT FOR PUBLICATION WITHOUT THE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-4551-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

R.T.,

     Defendant-Appellant.
________________________

                    Submitted March 12, 2019 – Decided April 16, 2019

                    Before Judges Yannotti and Gilson.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 04-10-3959.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Suzannah Brown, Designated Counsel, on
                    the brief).

                    Mary Eva Colalillo, Camden County Prosecutor,
                    attorney for respondent (Jason Magid, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant, R.T., appeals from a January 19, 2018 order entered by the

Law Division denying his petition for post-conviction relief (PCR). 1 We affirm

because defendant's petition was time-barred under Rule 3:22-12(a)(1) and

otherwise lacked merit.

      In 2004, then-ten-year-old L.T. disclosed that defendant had been sexually

abusing him over the preceding six years. L.T. was defendant's nephew and for

several years had been in defendant's custody.       In 2006, a jury convicted

defendant of two counts of first-degree sexual assault, N.J.S.A. 2C:14-2(a)(1);

two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(7);

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

Defendant was sentenced to an aggregate prison term of twenty-five years,

subject to periods of parole ineligibility and parole supervision as prescribed by

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

      Defendant filed a direct appeal. In 2009, we reversed his convictions and

ordered a new trial because the trial court had charged the jury with involuntary

intoxication over defendant's objection. State v. R.T., 411 N.J. Super. 35, 49-

50, 53 (App. Div. 2009). One judge of the three-judge panel dissented and



1
  Because defendant was charged with and ultimately convicted of sexually
abusing a minor, we use initials for defendant and the victim.
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                                        2
would have found no reversible error in the trial court's instruction concerning

involuntary intoxication. Id. at 68. The State appealed, and with the members

of the Supreme Court being equally divided, the judgment of the Appellate

Division was affirmed. State v. R.T., 205 N.J. 493, 493 (2011). Three members

of the Supreme Court found the error of giving an instruction on a voluntary

intoxication harmful, one member found it to be harmless, and two members

found no error. Ibid.

      Following the reversal and remand, defendant pled guilty to an amended

charge of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1). On September

16, 2011, in accordance with his plea agreement, defendant was sentenced to

nine years in prison, subject to NERA. Just over two months later, on November

14, 2011, an amended judgment of conviction was issued, which reduced the

number of jail credits awarded to defendant.

      On April 20, 2017, defendant filed a pro se PCR petition alleging

ineffective assistance of his plea counsel. Defendant was assigned counsel in

connection with his PCR petition, and counsel filed supplemental papers.

      On January 19, 2018, the PCR court heard oral argument and denied the

petition. The PCR court found that the petition was barred by Rule 3:22-12(a)(1)

because it was filed more than five years after the entry of the 2011 judgment of


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                                       3
conviction and defendant had not shown excusable neglect for failing to file a

timely petition. The PCR judge also addressed the merits of the petition, and

found that defendant had not presented a prima facie case of ineffective

assistance of counsel. Accordingly, the judge determined that defendant was

not entitled to an evidentiary hearing. The court memorialized its ruling in an

order dated January 19, 2018.

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

follows:

            POINT I – THE PCR COURT ERRED IN RULING
            THAT [R.T.'S] PETITION FOR POST-CONVICTION
            RELIEF WAS TIME-BARRED.

            POINT II – THE PCR COURT ERRED IN DENYING
            [R.T.'S] PETITION FOR POST-CONVICTION
            RELIEF WITHOUT AN EVIDENTIARY HEARING
            ON HIS CLAIM THAT PLEA COUNSEL FAILED TO
            ADEQUATELY ADVISE [R.T.] OF THE TERMS OF
            HIS PLEA AGREEMENT.

      Rule 3:22-12(a)(1) precludes PCR petitions filed more than five years

after entry of a judgment of conviction unless the delay was "due to de fendant's

excusable neglect and . . . there is 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

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                                        4
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)). Moreover, we have held that when a first PCR petition is filed more

than five years after the date of entry of the judgment of conviction, the PCR

court should examine the timeliness of the petition and defendant must submit

competent evidence to satisfy the standards for relaxing the rule's time

restriction. State v. Brown, 455 N.J. Super. 460, 470 (App. Div. 2018).

      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)).

      Here, defendant was sentenced on September 16, 2011. His petition for

PCR, however, was filed on April 20, 2017, seven months beyond the five-year

time limit. Defendant argues that there was excusable neglect for the late filing

because he had developed mental health issues in prison, he had trouble upon


                                                                          A-4551-17T4
                                        5
his release from prison, and he had limited access to legal research because of

restrictions imposed on his access to computers.

      Defendant, however, offered nothing but bare assertions to support his

claims of excusable neglect. He did not provide any documentation regarding

occurrences while in prison or that he was suffering from any mental illness.

      Defendant also contends that a fundamental injustice would occur because

his original jury conviction had been based on some evidence that might not be

admitted at a new trial. That contention ignores that defendant gave a knowing,

voluntary, and intelligent plea after his jury conviction was reversed. Moreover,

it would be speculative to try to determine what evidence may or may not have

been admissible at a second trial, since it is not entirely clear when that trial

would have occurred. In that regard, it would also involve speculation to try to

determine what developments in the law may or may not have been applicable

at a second trial.

      Defendant relies on State v. J.L.G., 234 N.J. 265 (2018) to argue that

evidence regarding child sexual abuse accommodation syndrome might not have

been admitted at a second trial. The Supreme Court affirmed the reversal of

defendant's convictions from his first trial in 2011, and defendant pled guilty in

September 2011. Thus, had defendant not pled guilty, he probably would have


                                                                          A-4551-17T4
                                        6
had a second trial in 2011 or 2012. In short, defendant failed to establish that a

fundamental injustice would occur if the time bar was not relaxed.

          Furthermore, 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 if he or she establishes a prima facie showing in support of

the petition. R. 3:22-10(b). To establish a claim of ineffective assistance of

counsel, a defendant must satisfy a two-part test: (1) "counsel made errors so

serious that counsel was not functioning as the 'counsel' guaranteed the

defendant by the Sixth Amendment[,]" and (2) "the deficient performance

prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984);

accord State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test). 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,

[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)). Moreover, a defendant must

make those showings by presenting more than "bald assertions" that he or she

was denied the effective assistance of counsel. State v. Cummings, 321 N.J.

Super. 154, 170 (App. Div. 1999).


                                                                          A-4551-17T4
                                         7
      In his pro se petition for PCR, defendant claimed his plea counsel was

ineffective, but defendant did not identify how or why plea counsel was

ineffective. Defendant also alleged that the trial judge was "prejudiced" against

him and that he was innocent. Defendant cited no evidence and asserted no facts

to support any of those contentions.

      Defendant's PCR counsel argued that his plea counsel was ineffective

because she incorrectly advised defendant that the evidence at a second trial

would be the same as at the first trial and he would again be convicted. PCR

counsel then contends that there were arguments defendant could have made to

exclude certain evidence that had been admitted at the first trial. In that regard,

defendant asserts that at the second trial, the court may have prohibited the State

from admitting fresh-complaint evidence, the defense may have been able to

seek documents concerning records maintained by the Division of Child

Protection and Permanency, and there may have been an argument to exclude

the testimony concerning child sexual abuse accommodation syndrome.

      As already pointed out, all of defendant's arguments concerning the

ineffective assistance of plea counsel rely on speculation as to what might have

happened at a second trial. The material fact is that a review of the proceeding




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                                        8
where defendant pled guilty establishes that he gave a knowing, voluntary, and

intelligent guilty plea and that he admitted the facts supporting his crime.

        Defendant also argues that plea counsel was ineffective for failing to

advise him of the requirements of Megan's Law and community supervision for

life.   The record rebuts that argument.      When he pled guilty, defendant

acknowledged his understanding of the requirements of Megan's Law and

community supervision for life. Defendant also executed the requisite plea

forms, which memorialized the requirements of Megan's Law and community

supervision for life.

        Finally, defendant has failed to show that he was prejudiced by plea

counsel's performance. The evidence against defendant was substantial and, by

pleading guilty, defendant avoided going to trial on four first-degree offenses,

which could have subjected him to a sentence well in excess of the nine years

he received under his plea agreement.

        Affirmed.




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