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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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. A-4551-17T4 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
A-4551-17T4 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
A-4551-17T4 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
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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. A-4551-17T4 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
A-4551-17T4 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
A-4551-17T4 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
A-4551-17T4 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.
A-4551-17T4 9