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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3642-18T3






                   Submitted October 1, 2020 – Decided October 26, 2020

                   Before Judges Ostrer and Enright.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 88-10-3334.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (John J. Bannan, Designated Counsel, on the

                   Theodore N. Stephens II, Acting Essex County
                   Prosecutor, attorney for respondent (Hannah Kurt,
                   Special Deputy Attorney General/Acting Assistant
                   Prosecutor, of counsel and on the brief).

      Defendant Sean Jones appeals from a November 16, 2018 order denying

his post-conviction relief (PCR) petition, following an evidentiary hearing. We


      On July 5, 1989, defendant pled guilty to second-degree conspiracy to

commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; first-degree robbery,

N.J.S.A. 2C:15-1; third-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(b); second-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(a); and an amended charge of first-degree aggravated

manslaughter, N.J.S.A. 2C:11-4(a). In exchange for his plea, the State agreed

to dismiss other pending charges, and recommended a maximum sentence of

forty years with a twenty-year period of parole ineligibility, to be served

consecutive to a sentence defendant already was serving for an unrelated

murder. The plea agreement reflected this recommendation and the judge noted

the recommendation at the time of defendant's plea.

      During defendant's plea allocution, he advised the judge that his trial

attorney had reviewed the plea form with him, that defendant understood the

questions and answers on the form, and he was satisfied with his attorney's


      When defendant provided a factual basis for the plea, he admitted, under

oath, that in June 1988, he and his codefendant, Ali Morgano, agreed to rob a

street vendor, and that defendant approached the vendor, pointed a gun at him

and demanded his money. Defendant also testified that a struggle ensued, he

shot and killed the vendor, and took the money from his victim’s pockets before

he ran away. The record reflects that after the shooting, an eyewitness identified

defendant as the shooter, and defendant provided a statement to police,

admitting his involvement in the robbery and shooting.

      Defendant was sentenced on July 14, 1989 to an aggregate term of thirty

years, with a fifteen-year period of parole ineligibility.     Although defense

counsel asked for defendant's sentence to run concurrent to the sentence

defendant was serving for the previous murder, the sentencing judge rejected

this request and directed that defendant serve his sentence consecutive to his

 Coincidentally, defendant's trial counsel also represented defendant when he
was convicted for the previous murder.

existing sentence for the prior murder. Defendant filed a direct appeal, and in

1990, we affirmed his sentence.

       According to defendant, it was not until early 2016 that he asked an inmate

paralegal to review this matter. As defendant only had his 1989 presentence

report for the paralegal's review, defendant filed a request for additional

paperwork. Upon receipt and review of the paperwork, the inmate paralegal

advised defendant his arrest was "illegal." Defendant contends this was the first

time he learned he could pursue PCR relief.

       On November 9, 2016, defendant filed a pro se petition for PCR, alleging

his trial counsel was ineffective for various reasons. For example, defendant

argued his attorney failed to review discovery with him, neglected to challenge

the basis for his arrest, and did not file a motion to suppress defendant's

confession, despite defendant's assertion that the police did not notify him of his

Miranda2 rights. Defendant also contended his attorney did not properly review

his plea form with him before he was advised to plead guilty, and that his

attorney failed to notify him of his appellate rights. Due to his trial counsel's

purported ineffectiveness, defendant claimed he mistakenly pled guilty, despite

being innocent of the charges.

    Miranda v. Arizona, 384 U.S. 436 (1966).
      The PCR judge conducted an evidentiary hearing in July and August 2018.

Defendant and his trial counsel testified at the hearing. According to defendant's

testimony, the police did not provide him with Miranda warnings before he

falsely told them he shot the vendor. Additionally, he stated that if he had

understood he could move to suppress his statement, he would "never" have pled

guilty, as he did not rob or kill the vendor. On cross-examination, defendant

admitted his attorney was aware of his confession to the police and because

defendant confessed, his attorney advised him that pleading guilty was "the right

option." Defendant also testified that when he gave a factual basis for his plea,

he was "misinformed." On redirect, defendant testified that trial counsel advised

him that if he pled guilty, he would receive a sentence concurrent to his existing

sentence. Further, defendant affirmed that he had filed approximately five PCR

petitions on his unrelated murder case.

      When defendant's trial attorney testified, he stated that he had no

recollection of defendant's case.     Additionally, he confirmed he reviewed

submissions from defendant's PCR counsel but did not have his own file on

defendant's case, as he would have returned his file to the Public Defender when

his representation concluded. Nevertheless, defendant's trial counsel testified it

was his practice to "always" review discovery with his clients and he assumed

he reviewed discovery with defendant. Moreover, he testified he would file

suppression motions for clients if he found a basis to challenge a confession.

Further, defendant's trial counsel noted the plea agreement exposed defendant

to "consecutive time."

      The PCR judge found defendant's claims were time-barred under Rule

3:22-12, and that no exception to that Rule applied. Further, the PCR judge

determined defendant's claims were barred under Rule 3:22-4(a), as his claims

could have been raised on direct appeal. Lastly, the judge concluded that even

if defendant's PCR petition was not barred under these Rules, defendant failed

to support his petition with credible evidence to establish his counsel was

ineffective. Indeed, the PCR judge found defendant's testimony "not credible

and totally unreliable."

      On appeal, defendant raises the following arguments:

            POINT I

            BECAUSE        DEFENDANT      RECEIVED
            PETITION FOR PCR.

            (A) Legal Standards Governing Applications For Post-
            Conviction Relief.

            (B) Trial Counsel Failed to Review Discovery with
            [Defendant], Failed to File Motions Challenging

             [Defendant's] Arrest and Seeking to Suppress the Arrest
             and his Subsequent Statement to the Police, and Failed
             to Properly Advise [Defendant] of his Right to and
             Grounds for Appeal.

             POINT II


             (A) Legal Standards Governing Post-Conviction Relief
             Procedural Bars.

             (B) Petitioner's Claims are Not Procedurally Barred
             from Being Raised in this Petition for Post-Conviction

      After carefully reviewing the record, we cannot conclude defendant's

claims were barred under Rule 3:22-4(a), but we are satisfied the PCR judge

properly determined defendant's petition was time-barred under Rule 3:22-

12(a)(1), and also lacked substantive merit.

      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 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 pursuant to Rule 3:22-12."

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)).

"Ignorance 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) (citing State v.

Murray, 162 N.J. 240, 246 (2000)).

      Next, a fundamental injustice occurs "when the judicial system has denied

a 'defendant with fair proceedings leading to a just outcome' or when

'inadvertent errors mistakenly impacted a determination of guilt or otherwise

wrought a miscarriage of justice.'" State v. Nash, 212 N.J. 518, 546 (2013)

(quoting Mitchell, 126 N.J. at 587). Thus, to satisfy the fundamental-injustice

element of Rule 3:22-12(a)(1)(A), a defendant "must make 'some showing' that

an error or violation 'played a role in the determination of guilt.'" Id. at 547

(quoting State v. Laurick, 120 N.J. 1, 13 (1990)).

      Here, defendant filed his petition for PCR on November 9, 2016, and the

PCR judge found he

            failed to provide a "plausible explanation" for filing
            [his petition twenty-seven] years after sentencing, let
            alone any credible evidence to establish "excusable
            neglect" sufficient to overcome the five[-]year
            procedural bar for filing a PCR application. Nor has
            [defendant] been able to establish that adherence to the
            five[-]year procedural bar would result in [a]
            "fundamental injustice." (citations omitted).

      In short, we agree with the PCR judge that defendant's belated petition is

time-barred, for the reasons he expressed.

      Notwithstanding the time bar, the PCR judge proceeded to consider the

merits of defendant's application and concluded defendant failed to demonstrate

a prima facie case of ineffective assistance of plea counsel, as his allegations

were "ludicrous and not credible." 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, that [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, 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). The law is "clear that

. . . purely speculative deficiencies in representation are insufficient to justify

reversal." Fritz, 105 N.J. at 64 (citations omitted); see also State v. Arthur, 184

N.J. 307, 327-28 (2005).

      We apply a deferential standard of review to an appeal of a denial of a

PCR petition following an evidentiary hearing. State v. Pierre, 223 N.J. 560,

576 (2015) (quoting Nash, 212 N.J. at 540). The factual findings made by a

PCR court will be accepted if they are based on "sufficient credible evidence in

the record." Ibid. (quoting Nash, 212 N.J. at 540). In contrast, interpretations of

the law "are reviewed de novo." Id. at 576-77 (quoting Nash, 212 N.J. at 540-


       Here, we are persuaded the PCR judge properly concluded defendant

failed to establish either Strickland prong, based on the judge's credibility and

factual findings. We discern no basis for rejecting those findings, which are

supported by substantial credible evidence developed at the evidentiary hearing.

       To the extent we have not addressed defendant's remaining arguments, we

conclude they are without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(2).


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