STATE OF NEW JERSEY VS. JERMAINE VAUGHN (96-12-1402, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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

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 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,

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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.

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 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.

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 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

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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.

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