STATE OF NEW JERSEY VS. K.A. (07-05-1614, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-0139-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

K.A.,

Defendant-Appellant.

___________________________________________

Submitted October 10, 2017 – Decided November 9, 2017

Before Judges Messano and O'Connor.

On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
07-05-1614.

Joseph E. Krakora, Public Defender, attorney
for appellant (William Welaj, 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 K.A.1 appeals from the denial of his petition for

post-conviction relief (PCR) following an evidentiary hearing.

For the reasons that follow, we affirm.

I

In April 2008, defendant pled guilty to first-degree

aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(a).

Specifically, he admitted he had vaginal intercourse with his

daughter when she was fifteen years of age. In July 2008, he

was sentenced to a seventy-four year term of imprisonment,

subject to an eighty-five percent period of parole

ineligibility; the date of the judgment of conviction was August

1, 2008. Defendant appealed his sentence, which was reviewed

before an Excessive Sentence Oral Argument (ESOA) Panel.

Finding the sentence manifestly excessive and unduly punitive,

we remanded for resentencing. State v. Ali, No. A-4887-08 (App.

Div. June 28, 2010).

On October 22, 2010, the trial court resentenced defendant

to a fifty-year term of imprisonment, subject to an eighty-five

percent period of parole ineligibility. Defendant appealed but,

in October 2011, his sentence was affirmed by an ESOA Panel.

State v. Ali, No. A-5611-10 (App. Div. Oct. 20, 2011). On

1
To protect the victim's privacy, we refer to defendant by his
initials.
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October 23, 2012, our Supreme Court denied defendant's petition

for certification. State v. Ali, 212 N.J. 431 (2012).

On October 15, 2014, defendant filed a petition for PCR,

and subsequently filed an amended petition for PCR. In those

petitions, defendant claims that, well before trial, the State

extended a plea offer to defendant, the terms of which were as

follows. In exchange for pleading guilty to first-degree

aggravated sexual assault, the State would recommend a twenty

year term of imprisonment, subject to an eighty-five percent

period of parole ineligibility, and dismiss the remaining

charges.2 Defendant claims his attorney discouraged him from

accepting the offer, advising he should hold out for a better

plea arrangement. Swayed by his attorney's advice, defendant

rejected the plea offer.

Defendant alleges that, after the jury was selected, the

State offered him "an open plea of twenty years to life." When

his attorney convinced defendant he could persuade the court to

sentence defendant to a fifteen-year term of imprisonment,

2
In addition to the charge to which he ultimately pled,
defendant had been charged with three counts of first-degree
aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); five counts
of first-degree aggravated sexual assault, N.J.S.A. 2C:14-
2(a)(2); two counts of second-degree sexual assault, N.J.S.A.
2C:14-2(b); one count of second-degree endangering the welfare
of a child; and two counts of third-degree aggravated criminal
sexual contact, N.J.S.A. 2C:14-3(a).
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defendant decided to accept the open plea. Defendant was then

sentenced to a seventy-four year term of imprisonment, which was

later reduced to a fifty-year term. Defendant claims that had

he known at the time the first plea offer was tendered that he

was exposed to a sentence of greater than twenty years, he would

have accepted such offer. He also asserts his attorney failed

to warn him that, with six convictions on his record, he was

eligible for a discretionary extended term.

In his petitions, defendant acknowledges his initial PCR

petition was filed more than five years after the entry of the

judgment of conviction and, thus, was untimely. See Rule 3:22-

12(a)(1). He claimed his delay in filing the petition was due

to excusable neglect, and that enforcement of the time bar would

result in a fundamental injustice. See Rule 3:22-12(a)(1)(A).

Defendant admits that when the Supreme Court denied his

petition for certification in October 2012, he knew he had to

file a PCR petition before August 1, 2013. In preparation for

that filing, in November 2012, defendant contacted an

organization that provides legal assistance to prisoners. This

entity assisted defendant by providing a paralegal to prepare

his PCR petition, but the paralegal was fired in April 2013.

Another paralegal took over the file, but he was transferred to

another prison shortly thereafter.
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 Defendant was then placed in administrative segregation for

violating a prohibited act. While in segregation, he was

advised by another inmate "not trained in law" that defendant

had five years from the time he was re-sentenced to file a PCR

petition. Thus, defendant assumed he had until October 22, 2015

to file his petition. Defendant also claims it took a year to

retrieve his paperwork from the last paralegal who had been

helping him, why his petition was filed out of time.

After reviewing the parties' pleadings, the PCR court

ordered an evidentiary hearing. The witnesses at the hearing

were defendant, his attorney (attorney), and the assistant

prosecutor (prosecutor) who handled this matter for the State.

On the question whether the petition was time-barred,

defendant's testimony was essentially consistent with what he

stated in his verified petitions. The court found the petition

time-barred, noting neither inaccurate legal advice about nor

ignorance of the deadline within which to file a petition is

excusable neglect. Further, the court noted defendant failed to

articulate how the failure to have certain paperwork, the

contents of which defendant failed to divulge, impaired his

ability to file a timely petition. In addition, the court noted

defendant was not asserting in his petitions that he was in fact

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innocent of the charge to which he pled or challenging his

sentence.

The court also addressed the substantive issues. Before

recounting the material testimony the PCR court found credible

on such issues, we provide some background facts. Defendant

impregnated the victim and she terminated the pregnancy. Some

of the fetal tissue was preserved by the staff at the medical

facility at which the termination took place, and the State

ultimately had the tissue tested to determine if defendant was

the father of the fetus. Before it made its first plea offer,

the State provided defendant with a report from a "DNA expert."

The report was not included in the record, but we surmise from

other documents provided that the expert claimed sufficient

evidence existed to conclude defendant was the father of the

fetus.

However, the attorney noted the expert's opinion was not

stated to be within a reasonable degree of medical probability.

The attorney deemed this omission significant because, without

sufficient medical or scientific evidence to link the fetus to

defendant, proof defendant sexually assaulted his daughter was

going to be limited to the credibility of her testimony. To

preclude the State from having sufficient time to correct the

deficiency in the expert's report before trial, the attorney
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purposely did not bring the subject flaw to the State's

attention until the parties appeared for jury selection.

When the parties ultimately appeared to pick a jury, the

attorney informed the court defendant was objecting to the

admission of the expert's testimony because of the subject flaw

in his opinion. However, jury selection was postponed for a few

days and, in the interim, the State obtained an amended expert's

report correcting the deficiency in the expert's opinion.

After the jury was selected but before opening statements,

the attorney moved to bar the expert's testimony. The attorney

argued it was unfair to allow the expert to testify to any

opinion that first appeared in the expert's amended report

because the report was served on the eve of trial. The court

rejected defendant's argument.

The attorney then challenged the chain of custody of the

fetal tissue, which was used to establish the expert's opinion

defendant was the father of the fetus. After a hearing, the

court found no flaw existed in the chain of custody.

Immediately thereafter the parties engaged in plea negotiations

and defendant pled guilty that day.

The material evidence the PCR court found credible at the

evidentiary hearing was as follows. Before the matter was

listed for trial, the State made a plea offer that defendant
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plead to first-degree aggravated sexual assault, and the State

would recommend a twenty year term of imprisonment, with an

eighty-five percent ineligibility period, and dismiss the

remaining charges. The attorney advised defendant to reject the

offer because of the flaw in the DNA expert's opinion, and

further informed defendant that if he declined the offer, the

attorney would attempt to negotiate a prison term of fifteen to

twenty years. The attorney also told defendant he wanted to

challenge the chain of custody of the fetal tissue. Defendant

rejected the offer, which was subsequently withdrawn.

After a jury was selected, the court rejected defendant's

motion to bar the DNA expert's testimony, as well as his

challenge to the chain of custody of the fetal tissue. The

State then made its second offer. That offer was defendant

plead to first-degree aggravated assault, but all other terms of

the plea deal would be open. Before the attorney discussed this

offer with defendant, he and the prosecutor met with the trial

judge in chambers.

The attorney claimed the court indicated it would sentence

defendant to a term of imprisonment between twenty-six and

twenty-eight years. The prosecutor asserted the court made no

mention of how it intended to sentence defendant. The PCR court

did not explicitly resolve who was the more credible. However,
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the court found the attorney in fact advised defendant he was

exposed to an "extreme sentence," but also informed defendant

that, based upon the court's comments in chambers, defendant

probably would be sentenced to between twenty-six and twenty-

eight years in prison.

The PCR court noted that, during the plea hearing but

before defendant pled guilty, the attorney, the prosecutor, and

the court stated defendant would be exposed to a term of

imprisonment from twenty years to life by accepting the State's

offer. Moreover, defendant admitted he understood he was

exposed to a sentence of twenty years to life if he pled guilty.

The court found credible defendant's concession at the PCR

hearing that the attorney did in fact inform him before he pled

guilty that his sentence could be twenty years to life in prison

and, further, the attorney did not promise any particular

result. In addition, the court noted defendant signed a notice

informing him he was subject to an extended term and defendant

acknowledged he had six previous convictions before he pled

guilty.

The PCR court determined defendant knew before he pled to

the open plea that his sentencing exposure was twenty years to

life. Thus, even if his attorney told him the court indicated

in chambers it would impose a prison term of only twenty-six to
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twenty-eight years, defendant was aware the court could impose a

far greater term of imprisonment. The court ultimately

concluded:

[I]n the context of an open plea, where no
result was promised or guaranteed, and where
the – where the defendant was told and
understood his full sentencing exposure,
does not constitute deficient performance as
contemplated by Strickland.

Accordingly, even if [the attorney] was
ineffective in failing to advise the
defendant of his sentence exposure under the
open plea, and I find that that's not, in
fact, the case, defendant failed to prove
that he was prejudiced by this deficiency
because the court adequately informed the
defendant of his exposure at the plea
hearing.

On April 15, 2016, the court entered an order denying

defendant his request for post-conviction relief.

II

On appeal, defendant presents the following arguments for

our consideration.

POINT I – THE TRIAL COURT ERRED IN DENYING
THE DEFENDANT'S PETITION FOR POST CONVICTION
RELIEF, IN PART, UPON PROCEDURAL GROUNDS
PURSUANT TO RULE 3:22-12(a)(1).

POINT II – THE TRIAL COURT ERRED IN DENYNG
THE DEFENDANT'S PETITION FOR POST CONVICTION
RELIEF FOLLOWING THE EVIDENTIARY HEARING
SINCE THE DEFENDANT FAILED TO RECEIVE
ADEQUATE LEGAL REPRESENTATION ARISING OUT OF
HIS GUILTY PLEA, WHILE THE FACTUAL FINDINGS
MADE BY THE TRIAL COURT UNDERLYING ITS
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 DENIAL WERE NOT SUPPORTED BY THE RECORD
ESTABLISHED AT THE HEARING.

A

Rule 3:22-12(a)(1) states a defendant's first petition for

PCR shall be filed no more than five years after the entry of

the judgment of conviction. However, a court may relax the

five-year time bar "if the petition alleges facts showing the

filing was untimely due to defendant's excusable neglect and

there is a reasonable probability that, if defendant's factual

assertions were found to be true, enforcement of the time bar

would result in a fundamental injustice." See Rule 3:22-

12(a)(1)(A).

Here, the judgment of conviction was entered on August 1,

2008 and defendant's first and only petition for PCR was filed

on October 15, 2014. Therefore, his petition is procedurally

barred as untimely unless the delay was due to defendant's

excusable neglect and there is a reasonable probability

enforcement of the time-bar would result in a fundamental

injustice. Ibid.

"The concept of excusable neglect encompasses more than

simply providing a plausible explanation for a failure to file a

timely PCR petition." State v. Norman, 405 N.J. Super. 149, 159

(App. Div. 2009). If the petitioner fails to allege sufficient

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facts, this rule bars the claim. State v. Mitchell,

126 N.J. 565, 576 (1992). A defendant's lack of sophistication

in the law does not relax the time-bar. State v. Murray, 162

N.J. 240, 246 (2000).

Defendant fails to provide any facts to show his failure to

timely file his petition was due to excusable neglect.

Defendant admitted he knew well in advance of the five-year

deadline he had to file a petition before August 1, 2013.

Defendant claims that after the two paralegals ceased working on

his file, another inmate told him he had five years from the

date of his resentencing, which was on October 22, 2010, to file

a PCR. However, defendant does not provide any plausible reason

why his reliance on the inmate's advice should be deemed

excusable.

Defendant also claims he needed to retrieve his paperwork

from the second paralegal, but defendant does not provide any

reason why that was necessary in order for him to fill out and

file a timely petition. As the PCR court pointed out, the forms

for self-represented litigants were simple and easy to complete.

Defendant asserts for the first time on appeal that neither

the court that originally sentenced him, his trial attorney, nor

appellate counsel informed him of the time restriction within

which to file a PCR petition. However, because this issue was
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not raised before the PCR court, "[g]enerally, an appellate

court will not consider issues, even constitutional ones, which

were not raised below." State v. Galicia, 210 N.J. 364, 383

(2012).

Notwithstanding, for defendant's benefit we observe that

when defendant was originally sentenced, the court was not

required to inform defendants of the time within which a PCR

petition had to be filed, as presently required by Rule 3:21-

4(h). More important, even if the court had an obligation to

advise defendant of the time limitations in Rule 3:22-12(a)(1),

the result would have been the same because defendant knew he

was required to file his petition before August 1, 2013.

Therefore, the PCR court correctly found defendant failed to

show there existed excusable neglect for failing to timely file

his PCR petition.

Defendant contends enforcement of the time bar would result

in a fundamental injustice because he received ineffective

assistance from the attorney. Although the failure to timely

file a petition in the absence of excusable neglect obviates the

necessity of considering this issue, see Rule 3:22-12(a)(1)(A),

for the sake of completeness we note, even if there were

excusable neglect, for the reasons set forth below defendant

fails to show the attorney rendered ineffective assistance.
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 B

We turn to defendant's second argument point, which

contends the court's factual findings are not supported by the

record, and the attorney failed to render effective assistance.

We readily dispense with the former contention by noting the PCR

court's findings are amply supported by the evidence adduced

during the evidentiary hearing. Before addressing the

contention counsel was ineffective, we review the law governing

our review.

The standard for determining whether counsel's performance

was ineffective for purposes of the Sixth Amendment was

formulated in Strickland v. Washington, 466 U.S. 668, l04 S. Ct.

2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court

in State v. Fritz, l05 N.J. 42 (l987). In order to prevail on a

claim of ineffective assistance of counsel, defendant must meet

a two-prong test. The first prong is counsel's performance was

deficient and he made errors so egregious that counsel was not

functioning effectively as guaranteed by the Sixth Amendment to

the United States Constitution. Strickland, supra, 466 U.S. at

687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

The second prong is the defect in performance prejudiced

defendant's rights to a fair trial such that there exists a

"reasonable probability that, but for counsel's unprofessional
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errors, the result of the proceeding would have been different."

Ibid. If a defendant has pled guilty, the second prong a

defendant must fulfill is "'there is a reasonable probability

that, but for counsel's errors, [the defendant] would not have

pled guilty but would have insisted on going to trial.'" State

v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (quoting State v.

DiFrisco, 137 N.J. 434, 457 (1994)).

"[J]udicial scrutiny of the attorney's performance must be

highly deferential." State v. Chung, 210 N.J. Super. 427, 434

(App. Div. 1986). Further,

[e]very effort must be made to eliminate the
distorting effects of hindsight, to
reconstruct the circumstances of counsel's
challenged conduct and to evaluate the
conduct from counsel's perspective at the
time. Id. at 689, 104 S. Ct. at 2065.
Furthermore, an appellate court reviewing
counsel's performance must indulge in a
strong presumption that counsel's conduct
falls within the wide range of reasonable
professional assistance. Id. at 690, 104 S.
Ct. at 2066.

[Ibid.]

Having reviewed the record and the applicable legal

principles, we are satisfied defendant failed to show the

attorney was ineffective.

In his brief, defendant clarifies his allegations of

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ineffectiveness are the attorney: (1) failed to appreciate the

strength of the State's case when it made its first plea offer

and advise defendant to accept this plea offer; (2) advised him

to reject "a 20 year plea offer and instead enter into an 'open'

plea subjecting him to a sentence between 20 years and life

imprisonment, further advising him he could obtain a much more

beneficial sentence under such an 'open' plea;" and (3) failed

to advise him of the adverse ramifications of entering into an

open plea.

We are not persuaded by any of these arguments. There is

no evidence the attorney failed to appreciate the strength of

the State's case when the State extended its first plea offer,

or that he was ineffective for failing to recommend defendant

accept this offer. When the first offer was made, the posture

of the case was very different from what it was by the time the

second offer was extended. When the second offer was made, the

State's case was far stronger; the State had just come into

possession of evidence that established the causal link between

the fetus and defendant, conclusively showing defendant had

vaginally penetrated his daughter.

The State did not have that evidence at the time the first

offer was extended. At that earlier point in the litigation,

the State's case was dependent upon whether the jury would find
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the victim credible, a form of proof far less potent than what

the amended expert's report provided. At that point, defendant

had appreciably more bargaining power to negotiate a plea

agreement. Mindful of the weaknesses in the State's case, the

attorney advised defendant to reject the initial plea offer so

he could attempt to secure a more favorable one. Defendant has

not provided any persuasive reason why counsel was ineffective

for recommending this course of action at that time.

There is no credible evidence to support defendant's claim

the attorney advised him to reject "a 20 year plea offer and

instead enter into an 'open' plea subjecting him to a sentence

between 20 years and life imprisonment, [and] further advis[ed]

him he could obtain a much more beneficial sentence under such

an 'open' plea." The attorney never advised defendant to reject

a twenty-year plea offer in order to accept an open plea in its

stead. At the time the attorney advised defendant to accept the

open plea, the offer to plea to the twenty-year term of

imprisonment no longer existed. The two plea offers were made

at two very different points during the prosecution of this

case.

Similarly, there is no credible evidence the attorney

failed to advise defendant of the adverse ramifications of

entering into the open plea. In fact, there is considerable
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evidence the attorney advised defendant of the sentencing

consequences of the open plea.

Finally, to the extent we have not addressed any of

defendant's arguments, it is because they were without

sufficient merit to warrant discussion in a written opinion. R.

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

Affirmed.

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