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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1932-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT SHEARRIN, a/k/a
ROBERT LEE SHEARRIN,
Defendant-Appellant.
_____________________________
Submitted May 2, 2018 – Decided June 27, 2018
Before Judges Alvarez and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Warren County, Indictment No.
06-02-0062.
Joseph E. Krakora, Public Defender, attorney
for appellant (Ruth E. Hunter, Designated
Counsel, on the brief).
Richard T. Burke, Warren County Prosecutor,
attorney for respondent (Kelly Anne Shelton,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Robert Lee Shearrin appeals from the denial of his
petition for post-conviction relief (PCR). After reviewing the
contentions in light of the record and applicable legal principles,
we affirm.
Defendant was charged with second-degree sexual assault in
violation of N.J.S.A. 2C:14-2(c)(4). During the plea hearing on
February 9, 2006, the judge advised defendant that following the
completion of his sentence, he would be subject to parole
supervision for life (PSL) for a period of at least fifteen years.
The judge further counselled that a violation of PSL was a fourth-
degree crime that carried a sentence of up to eighteen months in
state prison in addition to any sentence imposed by the parole
board.
Defendant pled guilty to the charge and was sentenced to
three years in state prison. He did not file a direct appeal.
After completing his sentence, defendant violated the terms of his
PSL four times, commencing in 2008, for which he served periods
of incarceration.
On July 23, 2015, nine years after his original conviction,
defendant filed a petition for PCR, pro se. Thereafter, counsel
was assigned and filed a supplemental brief. Defendant asserted
his trial counsel failed to adequately inform him of the PSL
consequences at the time of his guilty plea. He states he was not
advised he could be returned to prison for violations of PSL and
was only told he was required to register for fifteen years after
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the completion of his sentence. He further argued he was unaware
of the five-year timeframe to file a PCR.
At the PCR hearing, video recordings of the plea and
sentencing proceedings were played, and defendant testified. He
conceded he was guilty of the charged offense, and that he signed
the plea forms, which explained PSL and the consequences of
violating its terms. Although defendant admitted the judge had
explained PSL to him at both the plea and sentencing hearings, he
stated he thought he would only be sent to the county jail for any
PSL violation, not state prison.
In an oral decision issued October 6, 2016, the trial judge
found the PCR petition was time-barred and defendant had entered
a knowing and voluntary plea as PSL and the consequences of
violating it were discussed with defendant at the plea and
sentencing hearings. Finally, the judge noted that if defendant
was unaware of the terms of PSL, he must have understood the
restrictions and its consequences at the time of his first
violation in 2008. The petition was not filed for more than six
years after that time.
Defendant raises the following issues on appeal:
POINT I: THE TRIAL COURT ERRED IN DENYING
POST-CONVICTION RELIEF.
POINT II: THE TRIAL COURT ERRED IN FINDING
THAT DEFENDANT'S PCR PETITION WAS TIME-BARRED.
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Rule 3:22-12(a)(1) provides a time limit for the first filing
of a PCR petition. It specifies that a petition must be filed
within five years after the entry of the judgment of conviction.
Ibid. If the petition is untimely, it must allege 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).
The five-year time bar established by Rule 3:22-12(a)(1) is
relaxed only in exceptional circumstances. State v. Afanador, 151
N.J. 41, 52 (1997). In determining whether or not exceptional
circumstances exist, courts consider "the extent and cause of the
delay, the prejudice to the State, and the importance of the
petitioner's claim in determining whether there has been an
'injustice.'" Ibid. (citing State v. Mitchell, 126 N.J. 565, 580
(1992)).
This petition was filed more than four years beyond the five-
year time period. Defendant offered no facts satisfying the
"exceptional circumstance" standard to warrant the relaxation of
Rule 3:22-12. He argues only an ignorance of the law. That
assertion alone is not a sufficient basis upon which to find
excusable neglect and relax the timeframe under the rule. See,
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e.g., State v. Brewster, 429 N.J. Super. 387, 400 (App. Div.
2013) ("If excusable neglect for late filing of a petition is
equated with incorrect or incomplete advice, long-convicted
defendants might routinely claim they did not learn about the
deficiencies in counsel's advice on a variety of topics until
after the five-year limitation period had run."). Despite the
procedural bar, however, for the sake of completeness, we address
the merits of defendant's petition.
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 (1984) and adopted by
our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). In order
to prevail on a claim of ineffective assistance of counsel,
defendant must meet the two-prong test of establishing both that
(l) counsel's performance was deficient and he or she made errors
that were so egregious that counsel was not functioning effectively
as guaranteed by the Sixth Amendment to the United States
Constitution; and (2) 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
errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 687, 694.
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We are satisfied from our review of the record that the PCR
judge's finding that defendant failed to meet his burden of proof
as to a showing of ineffectiveness of trial counsel under the
Strickland-Fritz test was supported by sufficient credible
evidence. Defendant's argument that trial counsel was deficient
in not informing him of the meaning of PSL or its consequences is
not supported by the record. The trial court discussed PSL with
defendant at the time of his plea and sentencing hearings.
Defendant informed the plea judge he understood he would be subject
to a period of PSL of at least fifteen years, and that any violation
of PSL would result in a state prison sentence. He further
acknowledged that the information did not change his mind as to
his intention to plead guilty.
We are satisfied from our review of the record that defendant
failed to meet his burden of proof as to a showing of
ineffectiveness of trial counsel within the Strickland-Fritz test.
Affirmed.
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