### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO . A

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- 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. Krako ra, 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PER CU RIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opin ion shall not "constitute precedent or be binding upon any court."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 3 0, 20192 A

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Defendant Paul Anderson appeals from the denial of his petition for post

conviction 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 sentence d 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 aros e from an incident that took place on July 20, 2001, with a twelve

- year old victim

. Defendant was subsequently charged in an indict ment with first

- degree aggravated sexual assault, N.J.S.A.
2C:14

- 2(a)( 1 ), second

- degree se xual 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 g iving up his right s to a jury trial, to remain silent, and to confront th e witnesses against3 A

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him

. Defendant also stated that he understood he w ould have a criminal record , and that he was "satisfied with the services of" his plea counsel. On July 25, 20 03, defendant appeared for sentenc ing

. At senten cing, defendant acknowledged that he was unhappy with how this matter turn ed 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 intox icated , 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

. T he 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 [ woul d 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

. I f [ 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 b y new counsel at sentencing on the VOP

. Defendant admitted that he failed to attend behav ioral 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 fai led 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 probatio n s tarting from July 25, 2003, and ordered that defendant obtain full

- time employment. Twelve years later, o n August 17, 2016, d efendant filed a PCR petition in which he contended : t rial counsel fail ed to fight the charges against defendant , as there was ins ufficient evidence produced ; his trial counsel lied to him about the plea agreement ; " a portion of defendant's testimony [was] removed from the
record s" ; the judge imprisoned defendant for failing to go to a doctor th at the judge had recommended ; a "sugges tion 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 th e victim's mother being coerced into filing a complaint ; the victim's family and frie nd s "plant[ed] money" in
defendant's house ; defendant was followed by hit men who were hired by the5 A

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victim's parents ; the victim's family has incestual relationships ; and the "plea was [for] lew dness 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 couns el (IAC) , including his being
coerced to plead guilty, counsel's fail ure to interview potential witnesses, and fail ure to prepare defendant's case. Defendant did not file his own certification or any from any other person that set forth any specific facts i n support of any of h is contentions on PCR. Judge Leslie

- Ann M. Justus considered oral argument on December 14, 2017, and entered an order den ying defendant's petition on December 22 , 2017, aft er 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 af

ter 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.6 A

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Judge Justus also addressed the merits of defendant's IAC claim as to his trial counsel. The judge o bserved 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 guil ty to the amended charge of fourth

- deg ree lewdness." She noted
th at defendant's plea counsel a cted 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 com pliance with Megan's L aw. Judge Justus then responded to each of the twelve points raised by def en da n t in his initial petition. Addressing defendant's argument that his plea counsel failed to fight the charges against him , the judge found that counsel ha d 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. Additi onally, since
defendant did not "specif [y] what testimony [he wanted] removed from the record , " th at claim could not be considered. T he judge also found that defendant was jaile d 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 that7 A

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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 , t he judge found them to be irrelevant and un support ed by the record. Judge Justus also explained that the aggravated sexual assault charge was
included in the indictment as the State "establish[ed] a p rima facie case" against defendant

. Addressing defendant's claim that the plea agreement was for "lewdness and nothing more," the judge state d the claim was merely "a statement of fact," in which no relief could be granted

. The judge found defendant's

re maining 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. Th is 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 II8 A

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- HEARING WITH EFFECTIVE COUNSEL REPRESENTING DEFEN DANT. 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 R ule
3:22

- 12(a)(1) , especially since d efendant 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 , i n 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 o f the United States Constitu tion; and (2) that the defect in performance prejudiced defendant's right9 A

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to a fair tr ial 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 fa i led 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 ex pressed by Judge Justus in her comprehensive oral decision. We only reiterate that de fendant's petition was without any factual support. See St a te v. Cummings , 321 N.J. Super. 154, 170 (1999) (stating that a defendant "must do more than make bald asserti ons 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 u nder 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 fid e second PCR petition. See R. 3:22

- 12(a)(2)

. Affirmed.