State of New Jersey v. Anthony Sims, Jr.

• Court: New Jersey Superior Court Appellate Division
• Decided: January 2, 2026
• Docket: A-3526-23
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3526-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY SIMS, JR.,

Defendant-Appellant. ________________________

Submitted December 10, 2025 – Decided January 2, 2026

Before Judges Mayer and Jacobs.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 14-08- 1335.

Jennifer N. Sellitti, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).

Raymond S. Santiago, Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Anthony Sims, Jr. appeals from a June 11, 2024 order denying

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

affirm.

The facts leading to defendant's convictions are detailed in State v. Sims,

466 N.J. Super. 346 (App. Div. 2021), rev'd, 250 N.J. 189 (2022) (upholding the

trial court's admission of statements made to law enforcement by defendant and

the victim and remanding to this court to consider defendant's prosecutorial

misconduct and excessive sentencing arguments). On remand, we rejected

defendant's remaining arguments and affirmed. State v. Sims, No. A-2641-17

(App. Div. Apr. 18, 2022).

Defendant filed a petition for certification on the remanded issues, which

our Court denied. State v. Sims, 250 N.J. 493 (2022). The United States

Supreme Court denied defendant's petition for a writ of certiorari. Sims v. New

Jersey, 598 U.S. ___, 143 S. Ct. 409 (2022).

On January 27, 2023, defendant filed a PCR petition. The PCR

application was filed five years, five months, and nine days after defendant's

2017 convictions for attempted murder, related weapons offenses, and other

charges.

A-3526-23 2 In his PCR petition, defendant argued his defense counsel was ineffective

based on various trial decisions. He also asserted the State violated State v.

Brady, 373 U.S. 83 (1964), by failing to turn over evidence related to a specific

testifying witness, and his trial attorney should have filed a motion to suppress

that witness's testimony. He further argued his trial counsel was ineffective by

failing to investigate potentially exculpatory witnesses and an alibi witness.

Additionally, he contended the State improperly introduced evidence of the

victim's photo identification of defendant contrary to the Attorney General's

guideline governing photo identifications.

In a fifteen-page opinion issued on June 11, 2024, the PCR judge denied

defendant's petition on procedural and substantive grounds. The judge

determined defendant's PCR petition was untimely under Rule 3:22-12 because

it was filed more than five years after defendant's August 29, 2017 judgment of

conviction. Further, the judge explained defendant failed to present any

competent evidence warranting relaxation of the five-year time bar.

The PCR judge rejected defendant's argument that the pendency of his

direct appeal tolled the time for filing the PCR petition. Under Rule 3:22-

12(a)(3), the judge noted that if a PCR petition is filed during the pendency of a

direct appeal, and the petition is dismissed without prejudice, the defendant has

A-3526-23 3 "a [ninety]-day window from the date of the judgment on direct appeal to refile

the petition" and "which shall be treated as a first petition." The judge stated

defendant's "ignorance of the law and rules of the court d[id] not constitute

excusable neglect." Consequently, the judge found defendant's PCR petition

untimely.

Notwithstanding the procedural grounds for rejecting defendant's petition,

the judge addressed the merits of his PCR arguments. The judge concluded

defendant failed to establish a prima facie showing of ineffective assistance of

counsel under Strickland v. Washington, 466 U.S. 668 (1984), and State v. Fritz,

105 N.J. 42 (1987) (adopting the two prong Strickland test in New Jersey).

Regarding the failure to investigate potential exculpatory witnesses, t he

PCR judge found defendant "failed to provide a shred of evidence" the purported

exculpatory witnesses should have been investigated by his trial attorney.

According to defendant, there were eight individuals present at the shooting

scene who would have testified he was not the shooter. However, none of the

individuals submitted an affidavit in support of defendant's PCR contention.

Further, two of the individuals identified by defendant gave statements to the

police following the shooting. The State provided these statements to defendant

in discovery. In their statements, those two individuals described the shooter

A-3526-23 4 generally but were unable to identify the shooter, nor exculpate defendant as the

shooter. For these reasons, the PCR judge concluded trial counsel was not

ineffective in failing to investigate the alleged exculpatory witnesses.

The PCR judge also rejected defendant's argument regarding his trial

counsel's failure to investigate an alibi witness. The judge found defense

counsel investigated the alibi witness and elected not to call the witness at trial.

The alibi witness claimed to have been with defendant in Long Branch at

the time of the shooting in Red Bank. The judge concluded defense counsel's

decision against calling this alibi witness was "based on sound trial strategy"

given the "substantial evidence that the State could have relied upon to

contradict any alibi testimony." The State's evidence included cell tower data

placing defendant's cell phone in Red Bank around the time of the shooting and

text messages between defendant and the alibi witnesses suggesting defendant

was not with the alibi witness at the time of the shooting.

The PCR judge also rejected defendant's ineffective assistance of counsel

arguments related to the failure to suppress defendant's statement to the police

and the victim's photo identification of defendant. Defendant's PCR counsel

acknowledged these arguments were the subject of defendant's direct appeal.

A-3526-23 5 However, defendant's PCR counsel incorporated the arguments because

defendant raised the issues in his self-represented brief in support of the petition.

As the judge explained, Rule 3:22-5 provides "prior adjudication upon the

merits of any ground for relief is conclusive whether made in the proceedings

resulting in the conviction . . . or in any appeal taken from such proceedings"

and bars adjudication of a PCR issue that is identical or substantially equivalent

to the issue previously resolved on the merits. Because the victim's photo

identification of defendant and suppression of defendant's statement to law

enforcement were addressed on direct appeal, the judge concluded the issues

could not be raised in a PCR petition.

Regarding the alleged Brady violation in the form of the State's alleged

withholding of exculpatory evidence related to a specific witness, the judge

found the State provided defense counsel with all evidence in its possession

regarding that witness. Because the individual did not witness the shooting but

merely "saw people running from the scene and called 9-1-1," the judge found

"the fact [the witness] could not identify defendant as the shooter [wa]s not

exculpatory."

The PCR judge also rejected defendant's excessive sentencing argument.

Defendant claimed his defense attorney failed to advise him of exposure to an

A-3526-23 6 extended-term sentence. Thus, defendant argued he was unable to make an

informed decision whether to accept the plea offer.

The PCR judge concluded defendant's argument lacked "support in the

record." The judge specifically found the prosecutor, at least twice, advised

defendant during the plea cutoff proceeding that he faced a mandatory extended

term if convicted after a trial. The prosecutor also explained during the plea

cutoff proceeding "that the proposed plea offer would waive the extended term."

Additionally, the judge found defense counsel stated he explained the plea

offer to defendant and the post-trial exposure if defendant was convicted after a

trial. At the plea cutoff proceeding, defendant expressly stated he understood

he faced a mandatory extended term if convicted after a trial. Despite his

understanding of the potential consequences, defendant rejected the State's plea

offer, stating: "With all due respect, I decline."

On appeal, defendant raises the following arguments:

POINT I

THE FIVE-YEAR LIMITATION PERIOD FOR FILING PCR PETITION SHOULD HAVE BEEN RELAXED, AND THE PCR COURT'S FINDING THAT DEFENDANT FAILED TO DEMONSTRATE EXCUSABLE NEGLECT SHOULD BE REVERSED.

A-3526-23 7 POINT II

DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING WHERE HE ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL.

(A) TRIAL COUNSEL'S FAILURE CALL EXCUPLATORY WITNESSES AT TRIAL.

(B) TRIAL COUNSEL'S FAILURE TO CALL A POTENTIAL ALIBI WITNESS TO TESTIFY AT TRIAL.

(C) TRIAL COUNSEL'S FAILURE TO ADVISE DEFENDANT OF HIS EXTENDED-TERM SENTENCE EXPOSURE IF CONVICTED, BUT FOR WHICH DEFENDANT WOULD HAVE ACCEPTED THE STATE'S PLEA OFFER.

POINT III

DEFENDANT WAS ENTITLED TO POST- CONVICTION RELIEF DUE TO A BRADY VIOLATION.

POINT IV

THE ISSUE RAISED ON PCR OF WHETHER OR NOT THERE WAS A VIOLATION OF THE ATTORNEY GENERAL'S GUIDELINES FOR CONDUCTING PHOTO IDENTIFICATIONS WERE VIOLATED WAS NEVER PREVIOUSL RAISED ON APPEAL, AND THE COURT'S RULING THAT IT WAS BARRED IN THIS PCR WAS IN ERROR.

A-3526-23 8 "We review the legal conclusions of a PCR court de novo." State v.

Walker, 478 N.J. Super. 553, 560 (App. Div. 2024) (citing State v. Harris, 181

N.J. 391, 419 (2004)). Additionally, we apply "a de novo standard of review

when a PCR court does not conduct an evidentiary hearing." Ibid. (citing State

v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016)).

We reject defendant's argument that the judge erred in finding his PCR

petition time barred. Rule 3:22-12(a)(1)(A) bars consideration of a PCR petition

filed more than five years from the date of conviction absent demonstrating the

delay was due to "defendant's excusable neglect" and enforcement of the time

bar would "result in a fundamental injustice." When considering whether to

relax the five-year time period, we "consider the extent and cause of the delay,

the prejudice to the State, and the importance of the petitioner's claim in

determining whether there has been an 'injustice' sufficient to relax the time

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

State v. Afanador, 151 N.J. 41, 52 (1997)).

Defendant filed his PCR petition more than five years following his

conviction. Thus, defendant was required to demonstrate excusable neglect and

a fundamental injustice to overcome the time bar.

A-3526-23 9 When alleging excusable neglect, "[t]he petition itself must allege the

facts relied on to support the claim." State v. Mitchell, 126 N.J. 565, 577 (1992).

Ignorance of legal principles or rules does not constitute excusable neglect.

State v. Murray, 162 N.J. 240, 246 (2000) (noting a "[d]efendant's assertion that

he lacks sophistication in the law does not satisfy the exceptional circumstances

required by [Mitchell]").

Defendant asserted "[he] filed [his] PCR quickly after the Appellate

Division affirmed the trial court on the remand proceedings from the Supreme

Court. Had [he] filed any sooner, [his] PCR would have probably been

dismissed because of the pending appellate matters." However, "the pendency

of a direct appeal does not toll the running of the five-year limitations period

imposed by Rule 3:22-12." State v. Dugan, 289 N.J. Super. 15, 19 (App. Div.

1996) (citing State v. Dillard, 208 N.J. Super. 722, 727 (App. Div. 1986)).

Rule 3:22-6A(2) governs the procedure for a petition for certification

when there is a pending direct appeal. The Rule provides:

If a direct appeal, including a petition for certification, is pending . . . the petition shall be dismissed without prejudice. If the defendant refiles the petition within [ninety] days of the date of the judgment on direct appeal, including consideration of a petition for certification, or within five years after the date of the entry . . . of the judgment of conviction being

A-3526-23 10 challenged, it shall be considered a first petition for post-conviction relief.

[R. 3:22-6A(2).]

Assuming defendant had filed his PCR petition timely, the petition would

have been dismissed without prejudice, and defendant would have had ninety

days following the judgment on direct appeal to re-file his PCR. Contrary to

defendant's argument, the pendency of his direct appeal did not preclude his

filing of a PCR appeal within ninety days following disposition of his direct

appeal.

Moreover, defendant did not demonstrate any injustice sufficient to

warrant relaxation of the five-year time bar. As the PCR judge aptly found,

defendant failed to raise any substantial constitutional questions challenging his

convictions.

In examining the merits of defendant's PCR petition, the judge correctly

concluded defendant failed to demonstrate a prima facie case for ineffective

assistance of counsel under Strickland/Fritz. To establish ineffective assistance

of counsel, "the defendant must show that counsel's performance was deficient."

Fritz, 105 N.J. at 52 (quoting Strickland, 466 U.S. at 687). More specifically,

"[w]hen a convicted defendant complains of the ineffectiveness of counsel's

assistance, the defendant must show that counsel's representation fell below an

A-3526-23 11 objective standard of reasonableness." Strickland, 466 U.S. at 687-88. "Second,

the defendant must show that the deficient performance prejudiced the defense."

Id. at 687. "Specifically, a defendant alleging actual ineffectiveness must show

that there is 'a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different.'" Fritz, 105 N.J.

at 52 (quoting Strickland, 466 U.S. at 694).

Exculpatory Witnesses

Based on the trial evidence, and for the detailed reasons stated by the PCR

judge, defendant failed to provide sufficient evidence that his witnesses would

have proffered exculpatory trial testimony. None of the eight witnesses

submitted an affidavit detailing their purported exculpatory testimony.

Further, even assuming defendant's proffered witnesses would have

provided exculpatory evidence at trial, defense counsel's decision to reject

calling those individuals to testify at trial was a matter of trial strategy. See

State v. Echols, 199 N.J. 344, 358 (2009) ("[A]n otherwise valid conviction will

not be overturned merely because defendant is dissatisfied with his or her

counsel's exercise of judgment during the trial."); see also State v. Bey, 161 N.J.

233, 251 (1999) ("Merely because a trial strategy fails does not mean that

counsel was ineffective."). We agree defense counsel was not ineffective in

A-3526-23 12 failing to present testimony from any of the purported exculpatory witnesses

under these facts.

Alibi Witnesses

Similarly, the PCR judge properly rejected defendant's claim that defense

counsel's failure to call the alibi witness constituted ineffective assistance of

counsel. Having reviewed the record, we agree with the PCR judge that the

State had ample evidence to refute any alibi testimony. Thus, defense counsel's

decision to not to call the alibi witness was based on sound trial strategy given

the strength of the State's evidence contradicting the information to be proffered

by the alibi witness.

Excessive Sentencing

We also reject defendant's argument that his trial counsel was ineffective

in failing to properly advise of the exposure to an extended-term sentence if

defendant was convicted at trial. Defendant's argument on this point is belied

by the record.

Defendant was advised by the prosecutor and his defense attorney of the

potential extended-term sentence if he went to trial and was convicted.

Moreover, during the plea cutoff proceeding, defendant told the judge he

understood he faced a mandatory extended term if he was convicted after a trial.

A-3526-23 13 We are satisfied defendant was properly informed of the potential exposure to

an extended-term sentence and his trial counsel was not ineffective under the

circumstances.

Because defendant failed to establish a prima facie case for PCR under

Strickland/Fritz, he was not entitled to an evidentiary hearing. State v. Preciose,

129 N.J. 451, 462 (1992).

Alleged Brady Violation

Regarding defendant's Brady argument in support of PCR, we are satisfied

this argument could and should have been raised on direct appeal. Rule 3:22-

4(a)(2) bars claims that could have been raised on direct appeal from being re-

litigated in a subsequent PCR petition in the absence of a fundamental injustice.

Moreover, defendant's Brady argument fails to rise to the level of a

fundamental injustice for the reasons stated by the PCR judge. Defendant

received all evidence in the State's possession regarding the witness who made

the 9-1-1 call and spoke to law enforcement. Moreover, because the individual

did not witness the shooting, the fact the witness could not identify defendant as

the shooter was not exculpatory evidence required to be disclosed by the State.

A-3526-23 14 Photo Identification

We also reject defendant's argument that the PCR judge erred in

determining the alleged violation of the Attorney General's guidelines for

conducting photo identifications was barred because the issue was raised on

direct appeal. The PCR judge properly determined the victim's identification of

defendant from a single photograph presented by law enforcement was raised on

direct appeal.

The New Jersey Supreme Court specifically considered "the trial court's

decision to admit into evidence [the victim's] testimony at the Wade/Henderson

hearing at defendant's trial" which included the victim's identification of

defendant from a photograph. Sims, 250 N.J. at 218. In rendering its decision,

the Court considered the circumstances surrounding the admission of the

victim's identification, including potential issues related to eliciting the

identification and the victim's familiarity with defendant. Under the

circumstances, the PCR judge did not err in determining any issues related to

the victim's photo identification were adjudicated on direct appeal. Thus, the

judge correctly held this PCR claim was procedurally barred.

Affirmed.

A-3526-23 15