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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4696-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES KERSHAW,
Defendant-Appellant.
______________________________
Submitted August 21, 2018 – Decided September 11, 2018
Before Judges Sumners and Gilson.
On appeal from Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 06-06-2109.
Joseph E. Krakora, Public Defender, attorney for
appellant (William Welaj, Designated Counsel, on the
brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Maura Murphy Sullivan,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from a May 25, 2017 order denying his first petition
for post-conviction relief (PCR), alleging inadequate assistance of counsel, as
time-barred and without an evidentiary hearing. He argues that his petition was
not time barred, and that he should have had an evidentiary hearing because he
proved a prima facie case of ineffective assistance of counsel.
Defendant was indicted for second-degree sexual assault, N.J.S.A. 2C:14-
2(c)(4), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-
4(a). Upon pleading guilty to third-degree endangering the welfare of a child,
the sexual assault charge was dismissed. In his executed plea agreement,
defendant stated he understood that a special sentence of parole supervision for
life (PSL) would also be imposed. On February 16, 2007, he was sentenced in
accordance with the terms of the plea agreement.
Over eight years after his conviction, on June 22, 2015, defendant filed
for PCR alleging that his counsel provided inadequate assistance for failing to
investigate the defense of diminished capacity to the sexual assault charge. He
contended that a little over a month before the sexual assault incident, he had
been released from a month-long hospital stay due to injuries he received from
being struck by a motor vehicle while riding his bike. In support, defendant
submitted medical records detailing his injuries. He also claimed that his guilty
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plea should have been withdrawn because his diminished capacity rendered him
unable to understand the consequences of his plea, and that counsel failed to
advise him that PSL would be imposed as part of his sentence and his rights to
file an appeal or PCR petition. Defendant argued that excusable neglect existed
for late filing because counsel did not advise him of his PCR rights and that a
fundamental injustice could occur if his petition was time barred.
The PCR judge denied defendant's petition without granting an
evidentiary hearing; finding that it was barred because it was not filed within
five years after his conviction as required by Rule 3:22-12(a)(1). The judge held
that defendant did not establish excusable neglect because his delay was based
on his ignorance of the law and failure to pursue his legal rights. Nevertheless,
the judge addressed the merits of defendant's claim that counsel was ineffective
because he failed to investigate the defense of diminished capacity. In short, the
judge found that the diminished capacity argument was a bald assertion. He
determined that the medical records defendant submitted did not establish a
cognitive impairment from his accident to support a diminished capacity defense
or the contention that he was unable to understand the plea and sentencing
proceedings. The judge further found that, among other reasons, the insufficient
diminished capacity argument served as a basis to reject defendant's contention
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3
that he should be allowed to withdraw his guilty plea under State v. Slater, 198
N.J. 145 (2009).
We agree with the judge's findings that defendant's petition is time-barred
under Rule 3:22-12(a)(1). The rule provides that a first PCR petition cannot be
filed more than five years after the date of entry of the judgment of conviction
"unless it alleges facts showing that the delay beyond said time was due to
defendant's excusable neglect and that 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) (emphasis
added). Defendant's ignorance of the law does not establish excusable neglect.
State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div. 1998) (mistaken
understanding of law did not constitute excusable neglect); see also State v.
Cummings, 321 N.J. Super. 154, 166-67 (App. Div. 1999) (difficulty reading
and writing and defendant's ignorance of law did not excuse late filing). Since
defendant has not established neglect, we need not consider whether he showed
that there was a reasonable probability of a fundamental injustice. R. 3:22-
12(a)(1)(A).
Turning to the merits of defendant's petition, we also agree with the judge
that defendant did not establish a prima facie claim of inadequate assistance of
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counsel and was therefore not entitled to an evidentiary hearing to prove his
claim.
To establish a prima facie claim of ineffective assistance of counsel, the
defendant must show that: (1) counsel's performance was deficient; and (2) the
deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
(1984); State v. Fritz, 105 N.J. 42, 58 (1987). A court reviewing a PCR petition
based on claims of ineffective assistance has the discretion to grant an
evidentiary hearing only if a defendant establishes a prima facie showing in
support of the requested relief. State v. Preciose, 129 N.J. 451, 462-63 (1992).
The mere raising of a claim for PCR does not entitle the defendant to an
evidentiary hearing. Cummings, 321 N.J. Super. at 170. When determining
whether to grant an evidentiary hearing, the PCR court must consider the facts
in the light most favorable to the defendant to determine if a defendant has
established a prima facie claim. Preciose, 129 N.J. at 462-63. A hearing should
be conducted only if there are disputed issues as to material facts regarding
entitlement to PCR that cannot be resolved based on the existing record. State
v. Porter, 216 N.J. 343, 354 (2013).
"[I]n order to establish a prima facie claim, a petitioner must do more than
make bald assertions that he was denied the effective assistance of counsel. He
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must allege facts sufficient to demonstrate counsel's alleged substandard
performance." Cummings, 321 N.J. Super. at 170. When claiming defense
counsel inadequately investigated, the defendant "must assert the facts that an
investigation would have revealed, supported by affidavits or certifications
based upon the personal knowledge of the affiant or the person making the
certification." Ibid. (citing R. 1:6-6).
In a PCR arising from a guilty plea, a petitioner must "show[] 'a reasonable
probability that, but for counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial.'" State v. O'Donnell, 435 N.J. Super. 351,
369-70 (App. Div. 2014) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
Moreover, "[t]he failure to raise unsuccessful legal arguments does not
constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596,
625 (1990) (citing Strickland, 466 U.S. at 688).
Applying these principles, defendant fell short of presenting a prima facie
case of ineffective assistance of counsel. His bald allegations of diminished
capacity through his submission of medical records fails to establish any
competent evidence that he had a cognitive impairment that prevented him from
having the mens rea to commit sexual assault or the ability to comprehend the
guilty plea or sentencing proceedings. And because defendant has not shown a
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prima facie claim of ineffective assistance, the decision not to afford defendant
an evidentiary hearing was correct.
Affirmed.
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STATE OF NEW JERSEY VS. JAMES KERSHAW (06-06-2109, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)
Combined Opinion