STATE OF NEW JERSEY VS. KHARY ARRINGTON (05-01-0076, 05-03-0412, 05-10-1136, AND 05-10-1143, UNION AND MIDDLESEX COUNTIES AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: May 28, 2019
• Docket: A-4219-16T2
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4219-16T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KHARY ARRINGTON, a/k/a KHARY SHARIFF JACKSON,

Defendant-Appellant. __________________________

Submitted March 26, 2019 – Decided May 28, 2019

Before Judges Gilson and Natali.

On appeal from Superior Court of New Jersey, Law Division, Union County and Middlesex County, Indictment Nos. 05-01-0076, 05-03-0412, 05-10-1136, and 05-10-1143.

Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Elizabeth Hunter, Designated Counsel, on the brief).

Michael A. Monahan, Acting Prosecutor of Union County, attorney for respondent (Michele C. Buckley, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM

Defendant Khary Arrington appeals from a February 15, 2017 order

denying his petition for post-conviction relief (PCR). Defendant argues that the

PCR court erred in denying his petition without an evidentiary hearing and

misapplied the standard for his request to withdraw his guilty plea. He also

contends that he should be allowed to file a direct appeal. We reject these

arguments and affirm because defendant's petition was time-barred under Rule

3:22-12(a)(1) and otherwise lacked merit.

I.

In 2005, defendant was charged with nineteen crimes under four

indictments. Those charges included second- and third-degree offenses of

possession of controlled dangerous substances (CDS) with intent to distribute,

and weapons offenses. That same year, defendant pled guilty to four crimes,

one under each of the indictments. Specifically, he pled guilty to second-degree

possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and

N.J.S.A. 2C:35-5(b)(2); third-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(b); third-degree possession of cocaine with intent to distribute, N.J.S.A.

2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); and third-degree possession of heroin

with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7. In July

A-4219-16T2 2 2006, defendant was sentenced to an aggregate term of seven years in prison

with eighteen months of parole ineligibility.

Defendant did not file a direct appeal. Instead, he served his sentence and

was released. Thereafter, defendant was charged and convicted of federal

crimes. He was sentenced to an extended term of twelve years in federal prison.

In January 2015, defendant filed a pro se petition for PCR. He then

obtained legal counsel and counsel filed a supplemental brief on his behalf. On

October 27, 2016, the PCR court heard oral argument from counsel. Defendant

was not present because he was in federal prison, but his counsel waived his

appearance.

On February 15, 2017, the PCR court denied defendant's petition and

issued a written opinion explaining that ruling. In seeking PCR before the Law

Division, defendant argued that his trial counsel had been ineffective in failing

to inform him about the future consequences of his guilty pleas if he was

convicted of federal crimes, failing to object to the insufficient factual basis of

his pleas, and failing to file a direct appeal. In connection with those arguments,

defendant asserted that the five-year time bar should be relaxed because he could

show excusable neglect and his contentions should be considered on their merits

in the interest of justice. He also argued that he was entitled to an evidentiary

A-4219-16T2 3 hearing. Finally, defendant argued that he should be allowed to withdraw his

pleas because he had provided an insufficient factual basis.

The PCR court analyzed each of those arguments and rejected them. First,

the court found that the petition had been filed beyond the five-year limitation

period and defendant had not shown excusable neglect or an interest of justice

supporting relaxation of the time bar. The court also found that defendant failed

to make a prima facie showing of ineffective assistance of counsel. Finally, the

court reviewed defendant's plea transcript and found that defendant had given a

factual basis for each of the four crimes to which he pled guilty, had entered his

pleas knowingly, intelligently, and voluntarily, had not asserted a colorable

claim of innocence, and had not otherwise provided a sufficient basis to

withdraw his pleas.

II.

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

follows:

POINT I – THE PCR COURT ERRED IN DENYING AN EVIDENTIARY HEARING BECAUSE IT FAILED TO CONSIDER DEFENDANT'S CLAIM THAT HIS ATTORNEYS MISADVISED HIM CONCERNING THE NUMBER OF CONVICTIONS TO WHICH HE WAS PLEADING GUILTY.

A-4219-16T2 4 POINT II – THE PCR COURT'S DECISION SHOULD BE REVERSED BECAUSE IT MISAPPLIED STATE V. SLATER, 198 N.J. 145 (2009). SEE STATE V. O'DONNELL, 435 N.J. SUPER. 351 (App. Div. 2014).

POINT III – DEFENDANT IS ENTITLED TO FILE A DIRECT APPEAL PURSUANT TO STATE V. JONES, 446 N.J. SUPER. 28 (APP. DIV. 2016), BECAUSE DEFENDANT REQUESTED THAT HIS ATTORNEY FILE AN APPEAL, BUT HIS ATTORNEY FAILED TO DO SO.

We reject defendant's arguments concerning ineffective assistance of

counsel because his petition is time-barred. Moreover, to the extent that he made

a motion to withdraw his guilty pleas, that application lacks substantive merit.

A. The PCR Petition Is Time-Barred

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 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[.]" 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

A-4219-16T2 5 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

the defendant must "submit competent evidence to satisfy the standards for

relaxing the rule's time restrictions[.]" 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." State v. Milne,

178 N.J. 486, 492 (2004) (quoting Afanador, 151 N.J. at 52).

Here, defendant was sentenced on July 20, 2006. His petition for PCR,

however, was filed on January 9, 2015, more than eight years after he was

sentenced. In the Law Division, defendant claimed excusable neglect because

he did not have access to law books. The Law Division rejected that argument

and we do as well. Defendant offered no proof that he could not have accessed

legal counsel or the free law libraries that were available to him. In addition,

A-4219-16T2 6 "[i]gnorance of the law and rules of court does not qualify as excusable neglect."

State v. Merola, 365 N.J. Super. 203, 218 (Law Div. 2002), aff'd o.b., 365 N.J.

Super. 82 (App. Div. 2003); accord State v. Jackson, 454 N.J. Super. 284, 295

n.6 (App. Div. 2018).

Defendant also cannot establish a fundamental injustice would occur if the

time-bar is enforced. As previously noted, defendant was indicted for nineteen

crimes, including a number of second- and third-degree crimes arising from

different incidents. If he had gone to trial, his potential exposure was a

substantial period of incarceration that could have been in excess of twenty

years. By pleading guilty, defendant was able to negotiate a plea agreement

where he was sentenced to an aggregate term of seven years with eighteen

months of parole ineligibility.

B. The PCR Petition Lacked Merit

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 only if he or she establishes a prima facie showing in support

of the petition. R. 3:22-10(b); State v. Rose, ___ N.J. Super. ___, ___ (App.

Div. 2019) (slip op. at 7) (quoting R. 3:22-10). To establish a claim of

ineffective assistance of counsel, a defendant must satisfy a two-part test: (1)

A-4219-16T2 7 "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, [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)). 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).

Before the Law Division, defendant argued that his trial counsel was

ineffective by not advising him of the potential collateral consequences if, in the

future, defendant was convicted of a federal crime. The PCR court correctly

noted that there were no pending federal charges against defendant when he pled

guilty in 2005 or when he was sentenced in 2006. Consequently, there was no

requirement that his plea counsel advise him of the potential collateral

A-4219-16T2 8 consequences of a future potential federal conviction. State v. Wilkerson, 321

N.J. Super. 219, 227 (App. Div. 1999).

Before us, defendant contends that his trial counsel was ineffective

because he was led to believe that his four guilty pleas would be considered as

one conviction. That argument is rebutted by the record. When defendant pled

guilty, he was clearly advised that he was pleading guilty to four separate crimes.

Indeed, defendant reviewed and signed four separate plea forms. At his plea

hearing, the court then reviewed each of the four crimes and defendant

acknowledged that he was pleading guilty to four separate crimes. Thereafter,

at his sentencing, defendant was also advised and sentenced on the four separate

crimes.

C. Defendant's Request to File a Direct Appeal

Defendant next contends that his trial counsel was ineffective in failing to

file a direct appeal and that he is entitled to an order allowing him to file a direct

appeal. Defendant also contends that, at a minimum, he is entitled to an

evidentiary hearing concerning his request to file a direct appeal. We disagree.

There is a presumption that a defendant was prejudiced by counsel's

performance if the defendant can show that he or she requested counsel to file a

direct appeal, and counsel failed to file that appeal. See Roe v. Flores-Ortega,

A-4219-16T2 9 528 U.S. 470, 483 (2000); State v. Carson, 227 N.J. 353, 354 (2016); State v.

Jones, 446 N.J. Super. 28, 30-31, 33-34 (App. Div.), certif. denied, 228 N.J. 72

(2016). Here, that presumption of prejudice does not apply because defendant

relies entirely on bald assertions to support his claim that he instructed trial

counsel to file an appeal on his behalf, and counsel refused to comply.

Defendant's PCR petition did not assert that he had requested counsel to

file an appeal, nor did he submit any certifications or sworn statements declaring

he had instructed counsel to file an appeal. Instead, the assertions appear only

in defendant's briefs submitted by PCR counsel. Without any supporting

evidence, the assertions in defendant's briefs do not entitle him to the

presumption that he was prejudiced by counsel's performance. Compare Carson,

227 N.J. at 354-55 (granting defendant forty-five days to file an appeal after

both defendant and defense counsel certified that defendant had asked counsel

to file an appeal, and counsel had not done so); and Jones, 446 N.J. Super. at 30-

31, 34 (restoring defendant's right to appeal after defendant provided an

undisputed sworn statement that he had directed his attorney to file an appeal);

with Cummings, 321 N.J. Super. at 170-71 (finding assertions unsupported by

affidavits or certifications to be insufficient to support a prima facie case of

ineffectiveness).

A-4219-16T2 10 When a defendant has not shown that he or she requested that counsel file

an appeal, courts should consider "'whether counsel's assistance was reasonable

considering all the circumstances,' and whether counsel's deficient performance

'actually cause[d] the forfeiture of the defendant's appeal[.]'" Jones, 446 N.J.

Super. at 33-34 (first alteration in original) (citations omitted) (quoting Flores-

Ortega, 528 U.S. at 478, 484). Under this standard, defendant also has not

demonstrated a prima facie claim of ineffective assistance of counsel based on

the failure to file an appeal.

Defendant presents no evidence that counsel's alleged deficient

performance caused the forfeiture of defendant's appeal. Instead, the record

reveals that when defendant was sentenced in 2006, he was expressly advised

that he had forty-five days to file a direct appeal. Consequently, forty-five days

after his sentencing, defendant knew or should have known that no direct appeal

had been filed. Indeed, defendant served his entire sentence and was released

prior to filing his PCR petition. Under these circumstances, defendant is not

entitled to file a direct appeal or to an evidentiary hearing.

D. The Request to Withdraw His Guilty Pleas

Finally, in the papers filed before the Law Division, defendant argued that

he should also be allowed to withdraw his guilty pleas because he did not

A-4219-16T2 11 provide a sufficient factual basis. The PCR court reviewed defendant's plea

transcript and found that defendant had made knowing, voluntary, and

intelligent pleas of guilt to each of the four crimes. That analysis is set forth in

the PCR court's written opinion. We have independently reviewed the plea

transcript and agree that defendant gave an adequate factual basis for all four of

the crimes to which he pled guilty.

On this appeal, defendant argues that the PCR court used the wrong

standard in evaluating his argument. Specifically, he contends that a motion to

withdraw a guilty plea and a claim of ineffective assistance of counsel are two

distinct forms of relief that are governed by different standards. We agree with

that proposition. Nevertheless, defendant has failed to show that the PCR court

erred.

The PCR court first evaluated defendant's claims of ineffective assistance

of counsel and, under the appropriate standards, rejected those contentions,

including the contention that counsel was ineffective for failing to object to

defendant's insufficient factual bases at the plea hearing. Having conducted a

de novo review, we agree that defendant has not established a basis for PCR

relief.

A-4219-16T2 12 The trial court also separately analyzed defendant's claims seeking to

withdraw his guilty pleas. In that regard, the trial court correctly analyzed the

claims under the four factors set forth in State v. Slater, 198 N.J. 145, 157-58

(2009). Again, having conducted a de novo review, we agree with the trial court

that defendant did not establish any of the four factors, and, thus, defendant is

not entitled to withdraw his guilty plea.

Affirmed.

A-4219-16T2 13