NOT FOR PUBLICATION WITHOUT THE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-1335-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JERMAINE VAUGHN,
Defendant-Appellant.
_______________________
Argued June 21, 2021 – Decided July 14, 2021
Before Judges Fisher and Fasciale.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Indictment No. 96-12-1402.
Jermaine Vaughn, appellant, argued the cause pro se.
Jeffrey C. McElwee, Assistant Prosecutor, argued the
cause for respondent (Angelo J. Onofri, Mercer County
Prosecutor, attorney; Jeffrey C. McElwee, of counsel
and on the brief).
PER CURIAM
Defendant appeals from an October 24, 2019 order denying his third
petition for post-conviction relief (PCR) without an evidentiary hearing.
Defendant maintains that the judge's failure to hold a pretrial conference
violated his due process rights and that his plea counsel rendered ineffective
assistance by not apprising him of the consequences of rejecting a plea. Judge
Timothy P. Lyndon entered the order and rendered a fifteen-page written
opinion.
On appeal, defendant argues:
POINT I
THE PCR [JUDGE] ERRED IN FAILING TO FIND
THAT THE TRIAL [JUDGE] FAILED TO COMPLY
WITH RULE 3:9-1(f) AND RULE 3:9-3(g) WITHOUT
AN EVIDENTIARY HEARING VIOLATED
DEFENDANT'S RIGHT TO DUE PROCESS.
POINT II
THE PCR [JUDGE] ERRONEOUSLY APPLIED
PROCEDURAL BARS TO DEFENDANT'S THIRD
PETITION FOR [PCR].
POINT III
PRETRIAL COUNSEL WAS INEFFECTIVE FOR
NOT ADVISING DEFENDANT OF THE
POTENTIAL CONSEQUENCES OF A GUILTY
VERDICT, INFORM THE COURT OF THE
NONEXISTENCE OF A PRETRIAL
2 A-1335-19
MEMORANDUM FORM AND MISINFORMED
DEFENDANT TO NOT TAKE A PLEA.
We affirm substantially for the reasons expressed by Judge Lyndon. We add the
following remarks.
When a PCR judge does not hold an evidentiary hearing—like here—this
court's standard of review is de novo as to both the factual inferences drawn by
the PCR judge from the record and the judge's legal conclusions. State v. Blake,
444 N.J. Super. 285, 294 (App. Div. 2016).
I.
We first reject defendant's contention that the judge erroneously
determined that his petition was time barred.
Rule 3:22-12(a)(1)(A) 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." 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,
3 A-1335-19
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 judge 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." 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)).
Defendant's judgment of conviction was entered on March 23, 1999. He
filed his first PCR petition on June 14, 2004, his second on September 12, 2014,
and his third on March 31, 2019. Defendant has not established that the factual
predicate of his PCR, namely the pre-trial memorandum, could not have been
discovered earlier than twenty years after his conviction. His petition is
therefore untimely under R. 3:22-12(a)(2)(b). Furthermore, he established no
excusable neglect for that late filing.
4 A-1335-19
Defendant is also unable to show that enforcement of the time bar would
result in a reasonable probability of fundamental injustice as he has not
demonstrated a prima facie claim of ineffective assistance of plea counsel. 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).
Defendant recognizes that, prior to proceeding to trial, the plea offered to
him was an open plea to felony murder with no sentencing recommendation from
the State and, therefore, no guarantee that he would receive less than a thirty-
year sentence. The judge advised defendant prior to trial that it was his last
opportunity to take a plea. Defendant's claim that he was not advised by counsel
and that having the pre-trial memorandum would have changed the outcome is
without merit and he cannot establish that, had he been advised differently, he
would have opted to forego his right to trial and accept a plea with the same
sentencing exposure.
5 A-1335-19
II.
We next reject defendant's claim that the judge erroneously determined
that his petition was procedurally barred.
PCR is not a substitute for a direct appeal. R. 3:22-3; State v. Hess, 207
N.J. 123, 145 (2011). Rather, PCR "provides a defendant with a means to
challenge the legality of a sentence or final judgment of conviction which could
not have been raised on direct appeal." State v. McQuaid, 147 N.J. 464, 482
(1997). Accordingly, any ground for relief not raised in the proceedings
resulting in the conviction or in a direct appeal therefrom is barred unless the
judge finds:
(1) that the ground for relief not previously asserted
could not reasonably have been raised in any prior
proceeding; or
(2) that enforcement of the bar to preclude claims,
including one for ineffective assistance of counsel,
would result in fundamental injustice; or
(3) that denial of relief would be contrary to a new rule
of constitutional law under either the Constitution of
the United States or the State of New Jersey.
[R. 3:22-4(a)(1)-(3).]
A review of the record establishes that the PCR judge correctly applied
the procedural bar, as defendant's claims either were or could have been raised
6 A-1335-19
in an earlier proceeding. If defendant knew that he was not informed of his
sentencing exposure at trial or the consequences of rejecting the State's plea, he
could have raised these claims either on direct appeal or in one of his two
previous PCR petitions.
III.
We also reject defendant's claim that the judge erred in not conducting an
evidentiary hearing. A defendant is entitled to an evidentiary hearing on a PCR
petition only when he establishes a prima facie claim and "there are material
issues of disputed fact that cannot be resolved by reference to the existing
record." State v. Porter, 216 N.J. 343, 354 (2013) (quoting R. 3:22-10(b)). As
we have previously detailed, the existing record provided an adequate basis for
the findings that defendant did not establish a prima facie claim of ineffective
assistance of counsel and, therefore, defendant was not entitled to an evidentiary
hearing.
Affirmed.
7 A-1335-19