RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5234-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PAUL ANDERSON,

Defendant-Appellant.

______________________________

Submitted October 21, 2019 – Decided

Before Judges Rothstadt and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law 

Division, Monmouth County, Indictment No. 01-09-

1784.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Damen J. Thiel, Designated Counsel, on the 

brief).

Christopher J. Gramiccioni, Monmouth County 

Prosecutor, attorney for respondent (Monica do 

Outeiro, Assistant Prosecutor, of counsel and on the 

brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

December 30, 2019
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Defendant Paul Anderson appeals from the denial of his petition for postconviction relief (PCR) without an evidentiary hearing. For the reasons that 

follow, we affirm.

Defendant pled guilty to fourth-degree lewdness, N.J.S.A. 2C:14-4(b)(1), 

on June 9, 2003. The court sentenced defendant on July 25, 2003, to five years 

of non-custodial probation and required him to attend behavioral counseling. 

Defendant did not file a direct appeal from his conviction or sentence.

The charges against defendant arose from an incident that took place on 

July 20, 2001, with a twelve-year old victim. Defendant was subsequently 

charged in an indictment with first-degree aggravated sexual assault, N.J.S.A. 

2C:14-2(a)(1), second-degree sexual assault, N.J.S.A. 2C:14-2(b), and third-degree 

endangering the welfare of a child, N.J.S.A. 2C:24-4(a). On June 9, 2003, 

defendant pled guilty to fourth-degree lewdness pursuant to a plea agreement, 

after the third-degree endangering the welfare of a child charge was amended to

that charge. The remaining charges were dismissed.

At the plea hearing, defendant gave a factual basis for the offense. Defendant 

further stated that he was not forced to plead guilty; he understood that he was giving 

up his rights to a jury trial, to remain silent, and to confront the witnesses against 
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him. Defendant also stated that he understood he would have a criminal record, and

that he was "satisfied with the services of" his plea counsel.

On July 25, 2003, defendant appeared for sentencing. At sentencing, 

defendant acknowledged that he was unhappy with how this matter turned out, but

he did not seek to withdraw his plea. The sentencing judge imposed the probationary 

term in accordance with defendant's plea agreement, and conditioned his probation 

on, among other things, defendant's participation in behavioral counseling.1

Six months later, after defendant was convicted of driving while intoxicated, 

he was charged with a violation of probation (VOP) for the new offense and for 

failing to participate in behavioral counseling. A judge held a VOP hearing on

January 30, 2004, at which defendant pled guilty to the violation. The judge ordered 

defendant to attend behavioral counseling by the re-sentencing date.

1

 Although defendant was not required to comply with the requirements of 

Megan's Law, N.J.S.A. 2C:7-1 to -23, the judge directed that he

register with the local police department and advise 

them of his address yearly. . . . [T]he police [would be 

advised] that [defendant was] convicted of a lewdness 

offense and required as a condition of probation to 

advise the police . . . immediately of any change[s to 

his] address. If [defendant] move[d] to a new town, he 

[was required to] follow the same procedure of letting 

them know where he is.
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On March 12, 2004, defendant was represented by new counsel at sentencing

on the VOP. Defendant admitted that he failed to attend behavioral counseling but

blamed the failure on the cost and his plea counsel for "destroy[ing his] life." After 

finding defendant had a negative attitude and that he failed to cooperate with 

probation, the judge sentenced defendant to nine months in prison. Defendant filed 

a motion for reconsideration of his sentence. On May 28, 2004, the judge vacated 

the remainder of the jail term, reinstated five years of probation starting from July 

25, 2003, and ordered that defendant obtain full-time employment.

Twelve years later, on August 17, 2016, defendant filed a PCR petition in 

which he contended: trial counsel failed to fight the charges against defendant,

as there was insufficient evidence produced; his trial counsel lied to him about 

the plea agreement; "a portion of defendant's testimony [was] removed from the 

records"; the judge imprisoned defendant for failing to go to a doctor that the

judge had recommended; a "suggestion of guilt" was made by a probation 

officer; the judge was biased towards defendant as they had a mutual friend;

additional charges were added against defendant by the State without any new 

evidence; defendant's father observed the victim's mother being coerced into 

filing a complaint; the victim's family and friends "plant[ed] money" in 

defendant's house; defendant was followed by hit men who were hired by the 
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victim's parents; the victim's family has incestual relationships; and the "plea 

was [for] lewdness and nothing more."

A brief and amended petition were later submitted on behalf of defendant.

In this brief, defendant argued he was not procedurally barred from filing a late

PCR petition due to ineffective assistance of counsel (IAC), including his being 

coerced to plead guilty, counsel's failure to interview potential witnesses, and 

failure to prepare defendant's case. Defendant did not file his own certification 

or any from any other person that set forth any specific facts in support of any 

of his contentions on PCR.

Judge Leslie-Ann M. Justus considered oral argument on December 14, 

2017, and entered an order denying defendant's petition on December 22, 2017, 

after placing her reasons on the record that day. Initially, the judge found 

defendant's petition to be time-barred under Rule 3:22-12, as his petition was 

filed seven years after the five-year deadline established under the Rule. Judge 

Justus then considered whether defendant established a reason under State v. 

Mitchell, 126 N.J. 565, 580 (1992) to relax the Rule's time-bar. Since defendant 

failed to provide any evidence as to why he waited twelve years to file his PCR 

petition, the judge found there was no excusable neglect.
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Judge Justus also addressed the merits of defendant's IAC claim as to his 

trial counsel. The judge observed that there was no evidence in the record to 

support defendant's claim that his trial counsel coerced him into accepting the 

plea. At the plea colloquy, defendant "freely, knowingly and voluntarily 

pleaded guilty to the amended charge of fourth-degree lewdness." She noted 

that defendant's plea counsel acted effectively by negotiating a favorable plea, 

as defendant faced a maximum sentence of thirty-five years with seventeen years 

of parole ineligibility, a fine between $300,000 to $400,000, and compliance 

with Megan's Law.

Judge Justus then responded to each of the twelve points raised by 

defendant in his initial petition. Addressing defendant's argument that his plea 

counsel failed to fight the charges against him, the judge found that counsel had 

advocated, negotiated, and obtained a favorable plea offer for defendant. On 

defendant's claim that his counsel failed to provide him with accurate 

information, the judge found that the argument was baseless. Additionally, since 

defendant did not "specif[y] what testimony [he wanted] removed from the 

record," that claim could not be considered. The judge also found that defendant 

was jailed for violating probation and failing to participate in behavioral 

counseling, not for failing to go to a doctor on the VOP judge's list. On that 
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same claim, Judge Justus stated that there was not a claim for which relief could 

be sought as the jail time was vacated on defendant's motion for reconsideration.

Addressing defendant's claims about his probation officer and the VOP 

judge, the judge found them to be irrelevant and unsupported by the record. 

Judge Justus also explained that the aggravated sexual assault charge was 

included in the indictment as the State "establish[ed] a prima facie case" against 

defendant. Addressing defendant's claim that the plea agreement was for 

"lewdness and nothing more," the judge stated the claim was merely "a statement 

of fact," in which no relief could be granted. The judge found defendant's 

remaining arguments to be irrelevant to defendant's PCR petition or unsupported 

by the record. After evaluating the petition in full, the judge concluded that 

defendant's claims were not supported by evidence or were directly contradicted 

by the record. This appeal followed.

Defendant presents the following issues for our consideration on appeal:

POINT I

THE PCR COURT ERRED IN DENYING 

DEFENDANT'S PETITION FOR [PCR] BECAUSE 

DEFENDANT'S TRIAL/PLEA COUNSEL WAS 

INEFFECTIVE IN INVESTIGATING 

DEFENDANT'S CASE AND DURING HIS GUILTY 

PLEA.

POINT II
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THIS COURT SHOULD FIND THAT DEFENDANT 

WAS DENIED EFFECTIVE ASSISTANCE OF 

COUNSEL IN HIS PETITION FOR [PCR], REVERSE 

THE PCR COURT'S DECISION, AND REMAND 

THIS CASE FOR A RE-HEARING WITH 

EFFECTIVE COUNSEL REPRESENTING 

DEFENDANT.

We are not persuaded by these arguments and affirm.

We conclude from our review of the record that Judge Justus correctly 

found that defendant's petition was procedurally barred as untimely under Rule

3:22-12(a)(1), especially since defendant failed to demonstrate excusable 

neglect and explain why he waited twelve years to file his petition. State v. 

Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). Even assuming that 

defendant's petition was not time-barred, as the PCR judge determined, he failed

to make a prima facie showing of IAC under the well-settled test announced in 

Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by our 

Supreme Court in State v. Fritz, l05 N.J. 42, 49 (l987).

Under Strickland, in order to prevail on a claim of IAC, a defendant must 

meet the two-prong test: (l) that 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 of the United States 

Constitution; and (2) that the defect in performance prejudiced defendant's right 
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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. Here, defendant failed to meet his 

burden.

We find defendant's arguments to the contrary to be without sufficient 

merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2). We 

affirm substantially for the reasons expressed by Judge Justus in her 

comprehensive oral decision. We only reiterate that defendant's petition was 

without any factual support. See State v. Cummings, 321 N.J. Super. 154, 170 

(1999) (stating that a defendant "must do more than make bald assertions that 

he was denied the effective assistance of counsel. He must allege facts sufficient 

to demonstrate counsel's alleged substandard performance."). We also conclude 

that the judge correctly held that under these circumstances, an evidentiary 

hearing was not warranted. See State v. Preciose, 129 N.J. 451, 462-63 (1992).

As to defendant's claims against his PCR counsel, we decline to consider 

the issue on appeal as such claims are reserved for a bona fide second PCR 

petition. See R. 3:22-12(a)(2).

Affirmed.