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NOT FOR PUBLICATION WITHOUT THE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-3508-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES R. SMITH,
Defendant-Appellant.
________________________
Submitted February 25, 2020 – Decided April 28, 2020
Before Judges Yannotti and Hoffman.
On appeal from the Superior Court of New Jersey, Law
Division, Cape May County, Indictment No. 02-07-
0494.
Joseph E. Krakora, Public Defender, attorney for
appellant (Monique D. Moyse, Designated Counsel, on
the brief).
Jeffrey H. Sutherland, Cape May County Prosecutor,
attorney for respondent (Gretchen A. Pickering, Senior
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant James R. Smith appeals from the Law Division order denying
his petition for post-conviction relief (PCR). We affirm because defendant's
petition is time-barred under Rule 3:22-12(a)(1) and otherwise lacks merit.
I.
We briefly summarize the relevant facts on appeal, which we set forth at
length in our opinion on defendant's direct appeal. State v. Smith, Docket No.
A-1382-02 (App. Div. Oct. 5, 2004) (slip op. at 30). On August 7, 2002,
defendant abducted two teenagers at knifepoint, T.R. and D.W.,1 from the Ocean
City boardwalk. Defendant led the two victims to a deserted area near the water,
where he bound T.R. and forced D.W. to perform oral sex upon him. Defendant
then drove D.W. from Ocean City to wooded areas in Cape May and Cumberland
Counties, where he repeatedly sexually assaulted her. Afterward, defendant left
D.W. tied to a tree. Eventually, D.W. freed herself and found her way back to
the road. She flagged down a passing motorist, who brought her to the Port
Norris State Police barracks.
D.W. was able to provide the State Police with an accurate description of
defendant, his car, and the license plate number of the car. Within two days,
1
We use initials for the victims pursuant to R. 1:38-3(c)(12).
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2
investigators located defendant in Pennsauken and placed him under arrest.
After waiving his Miranda2 rights, defendant provided an initial statement,
claiming his encounters with T.R. and D.W. were consensual. Later that day,
after an investigator with the Cape May County Prosecutor's Office (CMCPO)
questioned him about inconsistencies in his statement, defendant told the
investigator to "get the tape-recorder," because he was ready to tell the truth.
Defendant then provided a confession in a recorded statement.
On February 27, 2001, a Cape May County Grand Jury returned
indictment number 01-02-0129 charging defendant with one count of first-
degree attempted murder, N.J.S.A. 2C:5-1, 2C:11-3(a), two counts of first-
degree kidnapping, N.J.S.A. 2C:13-1(b), four counts of aggravated sexual
assault, N.J.S.A. 2C:14-2(a), two counts of third-degree terroristic threats,
N.J.S.A. 2C:12-3(b), one count of fourth-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(d), and two counts of third-degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d).
On March 15, 2001, pursuant to a plea agreement, defendant pleaded
guilty to two counts of first-degree kidnapping and two counts of aggravated
2
Miranda v. Arizona, 384 U.S. 436 (1966)
A-3508-17T4
3
sexual assault. Under the agreement, the State recommended an aggregate forty-
year sentence, with a minimum of thirty-four years without parole.
In August 2001, defendant unsuccessfully moved to withdraw his guilty
plea. The court then sentenced defendant in accordance with the plea agreement,
imposing a forty-year sentence, with a thirty-four-year period of parole
ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-
7.2.
On December 21, 2001, defendant filed a PCR petition. Less than three
weeks later, on January 7, 2002, defendant appealed his conviction and sentence.
On February 7, 2002, defendant withdrew his initial PCR petition due to his
pending direct appeal.
In late December 2001, while confined in Trenton State Prison, defendant
sent Diane a pornographic picture and a terrorizing letter threatening to kill her.
A forensic document examiner opined that defendant wrote the letter.
On February 13, 2002, the State filed a motion to withdraw from
defendant's plea agreement. The Law Division granted the motion and vacated
defendant's conviction and guilty plea. We dismissed defendant's appeal as
moot.
A-3508-17T4
4
On February 26, 2002, a Cape May County grand jury returned indictment
number 02-02-0163 charging defendant with one count of terroristic threats,
N.J.S.A. 2C:12-3(b), and one count of witness tampering, N.J.S.A. 2C:28-5(a).
On July 30, 2002, the grand jury returned a superseding indictment, number 02-
07-00494, combining defendant's charges from indictment number 01-02-00129
and indictment number 02-02-0163.
On August 13, 2002, a jury found defendant guilty of two counts of first -
degree kidnapping, four counts of first-degree aggravated sexual assault, three
counts of third-degree terroristic threats, two counts of possession of a knife for
an unlawful purpose, and one count of fourth-degree unlawful possession of a
knife. The court sentenced defendant to an aggregate term of 105 years, with a
lengthy period of parole ineligibility. The trial court entered defendant's
judgment of conviction (JOC) on August 22, 2002.
Defendant appealed his conviction and sentence, raising the following
arguments:
POINT I
DEFENDANT, [J.S.], CONVICTION MUST BE
REVERSED SINCE THE TRIAL [COURT] ERRED
IN DENYING DEFENDANT'S MOTION TO
SUPPRESS HIS STATEMENT DEPRIVING
DEFENDANT OF HIS DUE PROCESS RIGHT TO A
A-3508-17T4
5
FAIR TRIAL (U.S. CONST. AMEND., XIV; N.J.
CONST. OF 1947, ART. I, 9, 10) (RAISED BELOW).
POINT II
THE DEFENDANT'S CONVICTION MUST BE
REVERSED SINCE DEFENDANT WAS DENIED
EFFECTIVE ASSISTANCE OF COUNSEL,
PURSUANT TO U.S. CONSTITUTION, AMEND. VI.
POINT III
DEFENDANT'S CONVICTIONS ON COUNTS FIVE
AND SIX AND/OR ON COUNTS NINE AND TEN
MUST BE REVERSED SINCE THE
[SUPERSEDING] INDICTMENT WAS
INSUFFICIENT TO DETERMINE THE CRIME FOR
WHICH THE JURY CONVICTED THE
DEFENDANT, AND/OR ALTERNATIVELY THE
TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION TO DISMISS COUNTS
FIVE OR SIX AT THE END OF THE STATE'S CASE
BASED UPON THE ABOVE ARGUMENT AND
FAILURE TO PROVIDE THE [SUPERSEDING]
INDICTMENT UNTIL THE DAY OF TRIAL.
POINT IV
DEFENDANT, [J.S.], CONVICTION SHOULD BE
REVERSED SINCE THE TRIAL COURT'S CHARGE
WAS INCORRECT, INADEQUATE AND
CONFUSING THEREBY DEPRIVING DEFENDANT
OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL
(U.S. CONST. AMEND. XIV; N.J. CONST. OF 1947,
ART. I, 9, 10).
A-3508-17T4
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POINT V
DEFENDANT'S CONVICTION MUST BE
REVERSED, SINCE THE TRIAL COURT ABUSED
ITS DISCRETION IN TRANSPORTING THE JURY
TO VIEW ONE OF THE SCENES OF THE ALLEGED
CRIMES AND FAILING TO CHARGE THE JURY
THAT WHAT THEY OBSERVED ON THE
VIEWING WAS NOT EVIDENCE, BUT AN AID TO
UNDERSTANDING EVIDENCE, AND BY
DENYING THE DEFENSE REQUEST TO VIEW
THE OTHER SCENES TO PUT THE VIEWING IN
CONTEXT.
POINT VI
A. THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION TO DISMISS COUNT
[THIRTEEN] AT THE END OF THE STATE'S CASE
SINCE THE STATE FAILED TO DEMONSTRATE
AN IMMEDIATE THREAT AND THE COURT
FAILED TO CHARGE THE JURY ON THE LESSER
INCLUDED OFFENSE OF HARASSMENT
PURSUANT TO [N.J.S.A.] 2C:33-4.
B. IF IT WAS PROPER TO SUBMIT THE CHARGE
CONTAINED IN COUNT THIRTEEN TO THE
JURY, DEFENSE COUNSEL SHOULD HAVE
REQUESTED, OR THE COURT SHOULD HAVE
SUA SPONTE CHARGED THE LESSER INCLUDED
OFFENSE OF HARASSMENT PURSUANT TO
[N.J.S.A.] 2C:33-4.
POINT VII
THE MATTER MUST BE REMANDED TO THE
SENTENCING COURT FOR CLARIFICATION
REGARDING THE SENTENCE IMPOSED.
A-3508-17T4
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POINT VIII
THE SENTENCE IMPOSED ON DEFENDANT IS
EXCESSIVE.
We rejected these arguments and affirmed defendant's convictions and the
sentences imposed. We did, however, remand the matter to the trial court to
clarify the JOC regarding periods of parole ineligibility. State v. Smith, Docket
No. A-1382-02 (App. Div. Oct. 5, 2004) (slip op. at 30). Defendant also raised
ineffective assistance of counsel arguments in his initial appeal; however, we
found the record insufficient to address these arguments. We therefore denied
the arguments "without prejudice to defendant . . . rais[ing] these arguments in
a [PCR] application." Id. at 17.
On March 7, 2005, defendant filed a pro se petition for PCR. His petition
asserted numerous claims relating to pre-trial and trial publicity and ineffective
assistance of counsel. On April 24, 2006, the PCR court entered an order stating
"the petition for [PCR] is withdrawn with prejudice."
On January 6, 2010, defendant sent a letter to the CMCPO. In the letter,
defendant essentially requested all documents concerning the superseding
indictment against him, citing the Open Public Records Act3 (OPRA) as the basis
3
N.J.S.A. 47-1A-1 to 13.
A-3508-17T4
8
for his request. On January 13, 2010, the CMCPO responded that the
information requested had already been provided to his counsel or was not
available.
On March 16, 2010, defendant filed a petition for writ of habeas corpus
with the United States District Court for the District of New Jersey. On October
6, 2010, the District Court dismissed defendant's petition as time barred. The
Supreme Court of the United States denied certiorari on January 9, 2012.
On December 20, 2013, defendant filed another pro se petition for PCR,
again alleging that he was denied effective assistance of counsel. Defendant
also asserted the trial court erred in various respects and accused the State of
withholding certain exculpatory evidence. Defendant sought an evidentiary
hearing on his petition. On July 25, 2014, the PCR court entered an order
denying the petition. The order stated that the petition was defendant's "second
or subsequent petition." The order also stated that the petition was denied based
on the court's April 24, 2006 order, which stated that defendant's first PCR
petition had been withdrawn with prejudice.
Defendant appealed and raised the following single argument:
THE JUDGE BELOW ERRED IN DISMISSING THE
DEFENDANT'S MOTION FOR POST-CONVICTION
RELIEF, AS IT WAS DEFENDANT'S FIRST POST-
CONVICTION RELIEF MOTION, HIS
A-3508-17T4
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PREVIOUSLY FILED MOTION HAVING BEEN
WITHDRAWN WITH PREJUDICE WITHOUT
BEING HEARD ON THE MERITS AS REQUIRED
BY COURT RULES AND LEGAL PRECEDENT.
We reversed and remanded, concluding the PCR court erred by treating
the December 20, 2013 petition as "a second or subsequent petition" under Rule
3:22-4(b). We concluded the court mistakenly relied on the fact the order
withdrawing defendant's March 7, 2005 PCR petition stated it was withdrawn
"with prejudice," even though the court never ruled on the merits of defendant's
claims. State v. Smith, Docket No. A-5937-13 (App. Div. Jan. 9, 2017) (slip op.
at 8).
In addition, we provided the PCR court with the following instructions:
On remand, the PCR court shall appoint counsel to
represent defendant, R. 3:22-6(a), and shall afford
counsel time in which to file an amended petition. The
amended petition must include facts showing that
defendant's failure to file a timely petition was due to
"excusable neglect." The amended petition must also
address whether, if defendant's factual claims are found
to be true enforcement of the time[-]bar "would result
in a fundamental injustice." The PCR court will then
determine whether the time[-]bar should be enforced
and, if not, the court should address the merits of
defendant's claims.
[Id. at 9]
Accordingly, defendant's PCR counsel filed a brief contending the PCR
court should relax the time-bar under the circumstances. On October 20, 2017,
A-3508-17T4
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defendant filed a motion with the PCR court requesting the court to compel
production of PCR discovery from the CMCPO. In the motion, defendant sought
the same documents he previously requested in his OPRA request.
On December 6, 2017, defendant appeared with PCR counsel before Judge
John C. Porto, who heard oral argument on defendant's petition and motion. On
January 30, 2018, Judge Porto denied defendant's petition as time-barred.
Defendant now appeals, raising the following point of argument:
POINT ONE
THE PCR COURT ERRONEOUSLY RULED
THAT [J.S.] PETITION WAS TIME[-]BARRED
BECAUSE ANY DELAY IN FILING THE
PETITION WAS DUE TO DEFENDANT'S
EXUSABLE NEGLECT AND THERE IS A
REASONABLE PROBABLITY THAT IF THE
DEFENDANT'S FACTUAL ASSERTIONS
WERE FOUND TO BE TRUE,
ENFORCEMENT OF THE TIME BAR WOULD
RESULT IN A FUNDAMENTAL INJUSTICE.
II.
After considering the record and the briefs, we conclude defendant's
argument lacks substantive merit. We affirm substantially for the reasons stated
by Judge Porto in his cogent oral opinion. We add the following comments.
Our court rules preclude PCR petitions filed more than five years after
entry of a judgment of conviction unless the delay was "due to defendant's
A-3508-17T4
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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)).
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)). Furthermore,
"[a]bsent compelling, extenuating circumstances, the burden of justifying a
petition filed after the five-year period will increase with the extent of the
delay." Mitchell, 126 N.J. at 580.
A-3508-17T4
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Here, notwithstanding our clear directions, defendant failed to set forth
facts that show his failure to file a timely petition was due to excusable neglect.
Judge Porto correctly concluded that the five-year limitation period began to run
from the date of defendant's JOC and was not stayed by the filing or pendency
of his direct appeal or federal habeas proceedings. Moreover, defendant
displayed his ability to pursue claims within the legal system on his own, made
evident from his numerous appeals, motions, petitions for habeas corpus and a
writ of certiorari, and three filed PCR petitions.
Excusable neglect requires more than simply providing reasons why a
petition was filed beyond the five-year window. As Judge Porto explained:
Ultimately against this factual landscape of petitioner's
case, this [c]ourt rejects the petitioner's contention that
his petition should not be time[-]barred due to his
pursuit of relief in other courts. The [c]ourt also rejects
his argument that the petition should be heard to avoid
a miscarriage of justice, as he does not even provide a
scintilla of evidence or reason to support that bald
conclusion. State law in this regard is very clear that a
bare allegation is not sufficient to elude the time[-]bar.
In other words, if the petitioner does not allege
sufficient facts, the court bars the claim.
In a diligent and deferential search of petitioner's
petition, this [c]ourt cannot find anywhere where
[defendant] articulates or explains any fact for which
this [c]ourt may consider excusable neglect. . . .
....
A-3508-17T4
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When he was specifically required to articulate why he
should not be time[-]barred in this matter, he simply
provided no fact or facts from which this [c]ourt could
consider.
Defendant's remaining arguments are based on bald assertions without
evidential support in the record, and otherwise lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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