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(NOTE: The status of this decision is Unpublished.) NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3504-08T43504-08T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. TIMOTHY ADAMS, Defendant-Appellant.

Submitted May 5, 2010 - Decided Before Judges Graves and J. N. Harris. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-08-3380. Yvonne Smith Segars, Public Defender, attorney for appellant (Kimmo Z. Hussain, Designated Counsel, on the brief). Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Maryann K. Lynch, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM Defendant Timothy Adams appeals the Law Division's denial of his application for post-conviction relief (PCR). We affirm. After pleading guilty, defendant was convicted of a single count of making terroristic threats, a crime of the third degree. 198 N.J. 145 (2009), determined that defendant's claim of innocence was a "mere assertion" and his plea was "voluntarily given." Thus, the court rejected the defendant's belated claim of a supposed new insight into the discovery materials and grand jury proceedings, and proceeded to sentence defendant to the previously agreedupon term of three years incarceration.

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Defendant appealed, limiting the issues to (1) the unsuccessful motion to withdraw his guilty plea and (2) the excessiveness of the sentence imposed. R. 2:9-11. We affirmed the Law Division, State v. Adams, No. A-1014-03 (App. Div. Mar. 31, 2004), and the Supreme Court denied certification. State v. Adams, 181 N.J. 286 (2004). On March 26, 2008----five years and eleven months after the entry of the judgment of conviction----defendant finally filed his PCR application. The case was assigned to and considered by the same judge who had previously sentenced defendant. In this PCR application, defendant reargued the same grievance concerning his motion to withdraw the guilty plea that he had advanced twice before: first at sentencing, and thereafter in his direct appeal. The Law Division denied the PCR application in an order dated October 23, 2008, finding that "it's simply a change of heart and nothing more." This appealed followed. Before this court, defendant's counsel reprises the same argument concerning the request to withdraw the guilty plea. However, in a pro se supplemental brief filed on October 20, 2009----seven and one-half years postconviction----defendant makes the following points for the first time: POINT 1: POLICE MISCONDUCT TAINTED DEFENDANT'S CASE; ILLEGAL SEARCH AND SEIZURE, MIRANDA ISSUES, DEFENDANT WAS NOT QUESTIONED NOR STATEMENT TAKEN, ETC. POINT 2: PRE-INDICTMENT DELAY OF [TWO] YEARS VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS. POINT 3: INSUFFICIENT EVIDENCE PRESENTED TO THE GRAND JURY AND POOR DISCRETION BY THE PROSECUTION IN DECIDING TO PROSECUTE [THE] CASE. POINT 4: INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL. POINT 5: DEFENDANT DID NOT KNOWINGLY, INTELLIGENTLY, OR VOLUNTARILY "WAIVE" HIS RIGHT TO GO TO TRIAL WHILE INCOMPETENT. POINT 6: INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL. POINT 7: DEFENDANT WRONGLY CONVICTED, WRONGFUL CONVICTION HAD A DIRECT EFFECT ON HIS CURRENT SENTENCES, AND DEFENDANT PREJUDICED BY PCR HEARING DELAY. POINT 8: DEFENDANT WRONGFULLY DETAINED IN THE COUNTY JAIL FOR AN ADDITIONAL [THIRTY-ONE] DAYS AFTER THE PCR HEARING WAS HELD. POINT 9: INEFFECTIVE ASSISTANCE OF PCR COUNSEL. We have thoroughly scrutinized the record under the lens of these arguments and conclude that they are entirely meritless, not warranting an extended discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following brief comments. The ultimate goal of defendant's lengthy quest is to enable him to withdraw his guilty plea. He raised this issue in
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his first appeal and we denied it, albeit within the context of affirming the judgment of the trial court in the framework of Rule 2:9-11. Rule 3:22-4 prohibits a defendant from raising issues in PCR proceedings that could have been raised in a prior proceeding. See State v. McQuaid, 147 N.J. 464, 484 (1997). A petition for PCR is not a "substitute for appeal from conviction or for motion incident to the proceedings in the trial court." R. 3:22-3. In February 2009, the Supreme Court reviewed the standards governing motions to withdraw a guilty plea in Slater. There, the Court identified four factors that trial judges are to consider and balance . . . in evaluating motions to withdraw a guilty plea: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused. [Slater, supra, 198 N.J. at 157-58.] The Court did not discuss the retroactive effect of its decision and we detect no basis to extend retroactivity of Slater to defendant. Nonetheless, we treat the Slater paradigm as informative in assessing defendant's current claim. We are convinced that nowhere in his PCR application or on direct appeal has he asserted a "colorable claim of innocence[,]" id. at 157, in support of his request to withdraw his guilty plea. Rather, he has merely asserted "unprofessional errors," such as counsel's supposed indifference to defendant, alleged failure to investigate the case, and failure to move to dismiss the indictment for prosecutorial misconduct and delay. Defendant's charges were resolved through a plea bargain that was entered into more than eight years ago; the events outlined in the indictment are now almost eleven years old, which raises the specter of prejudice to the State. Defendant did not attach any affidavits or certifications supporting the contention that all of his attorneys failed to adequately represent him at various stages of the proceedings. Bare assertions----without any factual support----are not sufficient to establish ineffective assistance of counsel. See State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rule 3:22-12 bars PCR applications filed more than five years after the rendition of the judgment or sentence that is under attack. Notably, most of defendant's arguments were made for the first time well beyond five years following the judgment in the trial court. See State v. DiFrisco, 187 N.J. 156, 166-67 (2006) (holding that the reason the five-year time period is generally neither stayed nor tolled by an appellate or other proceeding is to "ensure that the passage of time does not prejudice the State's retrial of a defendant" and "to respect the need for achieving finality of judgments and to allay the uncertainty associated with an unlimited possibility of relitigation"); State v.
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Merola, 365 N.J. Super. 203, 218 (Law Div. 2002) ("Ignorance of the law and rules of court does not qualify as excusable neglect."), aff'd, 365 N.J. Super. 82 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). Rule 3:22-12(a) provides in pertinent part: No . . . petition [for post conviction relief] shall be filed pursuant to this rule more than [five] years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect. "The concept of excusable neglect encompasses more than simply providing a plausible explanation for a failure to file a timely PCR petition." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). More exactly, excusable neglect can be established 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) (quoting State v. Afanador, 151 N.J. 41, 52 (1997)). To be entitled to a relaxation of the Rule based upon a showing of excusable neglect, defendant is obliged to "allege[] facts demonstrating that the delay was due to the defendant's excusable neglect" and, "[i]f the petitioner does not allege sufficient facts, the Rule bars the claim." State v. Mitchell, 126 N.J. 565, 576 (1992). We conclude that defendant has failed to allege sufficient facts to demonstrate that his delay in filing his application for PCR was due to excusable neglect. Lastly, even though it was not originally asserted by defendant in the Law Division, we find his claims of multiple gaffes by his several attorneys to be ill-founded. "For a defendant to establish a case of ineffective assistance of counsel, the defendant must show that '[defense] counsel's performance was deficient,' and that 'there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Nunez-Valdez, 200 N.J. 129, 138-39 (2009) (quoting State v. Preciose, 129 N.J. 451, 463-64 (1992)). See also Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed.2d 674, 698 (1984). "[T]here is 'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" State v. Echols, 199 N.J. 344, 358 (2007) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Moreover, a "challenged error must be so serious as to undermine the court's confidence in defendant's conviction." Id. at 359. It is defendant who bears the burden of proof to establish the grounds for PCR by a preponderance of the credible evidence. Id. at 357. We find that defendant did not meet that burden of proof in this case. State v. Webster, 187 N.J. 254, 257 (2006), recognized that an attorney has a duty "to communicate with the client, [to] investigate the claims urged by the client . . . [to] determine whether there are additional claims that should be brought forward . . . [and to] advance all of the legitimate arguments that the record will support." See also State v. Rue, 175 N.J. 1, 19 (2002). However, these cases do not lead us to conclude
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that relief is warranted in light of the facts of this particular case, especially after so much time has passed. Affirmed.

Although the language of the Rule speaks in terms of restricting the issue to "whether the court imposed a proper sentence," defendant's appellate counsel was permitted to orally argue that the denial of the motion to withdraw the guilty plea was harmful error. (continued) (continued) 10 A-3504-08T4 May 21, 2010 0x01 graphic

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