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

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STATE OF NEW JERSEY,

Plaintiff

- Respondent,

v.

FRANK M

. BROWN, a /k/a FRANK ACE, FRA NK BLACKWELL, and SONNY BROWN,

Defendant

- Appellant.

__________ ___________________ __

Submitted October 28, 2019

– Decided

Before Judges Fasciale and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law Division, Cum berland County, Indictment No. 75

- 03

- 0602.

Joseph E. Krakora , Public Defender, attorney for appellant (Justin T. Loughry, Designated Counsel, on the briefs).

Jennifer Webb

- McRae, Cumberland County Prosecutor, attorney for respondent (Andre R. Araujo, Ass istant Prosecutor, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not " constitute precedent or be binding upon any court."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.

November 12, 20192 A

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PER CURIAM

Defendant appeals from a January 29, 2018 order denying his petition for

post

- conviction relief (PCR) , which defendant filed more than forty years after

the commission of the underlying crimes

. Defendant asserts his trial and

appellate counsel rendered i neffective assistance. Judge Robert G. Malestein

denied defendant's petition without an evidentiary hearing

, and rendered a

twenty

- one page written opinion.

The first petition for PCR must be f iled within five years of the date of

judgment of convic tion. R. 3:22

- 12(a)(1). A late filing may be considered if

the petition itself shows excusable neglect for the late filing and that a

fundamental injustice will result if defendant's claims are not considered on their

merits. State v. Brewster , 429 N.J. Super. 387, 400 (App. Div. 2013). In

evaluating whether to relax the time bar, a judge should consider "the extent and

cause of the delay, the prejudice to the State, and the importance of the

[defe ndant's] claim in determining whether there has been an injustice sufficient

to relax the time limits." State v. McQuaid , 147 N.J. 464, 485 (1997) ( internal

quotation and citation omitted ).

" Absent compelling

, extenuating circumstances, the burden to jus tify

filing a petition after the five

- year period will i ncrease with the extent of the3 A

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delay. " State v. Afanador , 151 N.J. 41, 52 (1997) (citing State v. Mitchell , 126

N.J. 565, 580 (1992)) . "Where the deficient representation of counsel affected

'a dete rmination of guilt or otherwise wrought a miscarriage of justice,' a

procedural rule otherwise barring [PCR] may be overlooked to avoid a

fundamental injustice." Brewster , 429 N.J. Super. a t 400 (quoting Mitchell , 126

N.J. at 587).

As the PCR judge emph asized

, the underlying crime occurred in

December 1975 ; defendant was sentenced in March 1977 ; and the judgment of

conviction was entered in April 1977. Defendant's petition for PCR was not

filed until October 1, 2015, almost forty years after the crime a nd subsequent

entry of judgment. The PCR judge was :

[M] indful that the State simply ca nnot prosecute a case for a crime which occurred [forty] years ago. The State has indicated that the p hysical evidence is destroyed, damaged[,] or useless. Witnesses ha ve died, the trial transcript is incomplete [
, ] and memories have certainly faded. However, [forty] years ago the evidence of guilt was overwhelming[.]

T he PCR judge noted, "[t]here is not a scintilla of evidence or

. . . excusable

neglect asserted nor a rgued by [defendant]." T he PCR judge further stated

"there are no factual allegations demonstrating that the delay was due to

[defendant's] excusable neglect." As t he State correctly empha sizes

, defendant4 A

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does not attempt to provide any sort of "plausibl e explanation" for his failure to

file a timely PCR. T he PCR judge denied the petition as time

- barred, but also

rejected defendant's contentions on the merits

. On appeal, defendant raises the following arguments:

POINT I [DEFENDANT] WAS DENIED THE EF FECTIVE ASSISTANCE OF TRIAL COUNSEL, AND THEREBY THE RIGHTS OF DUE PROCESS AND A FAIR TRIAL.

A . THE PURPOSE OF A PETITION FOR [PCR] IS TO AFFORD A DEFENDANT A LAST OPPORTUNITY TO RAISE A CONSTITUTIONAL CHALLENGE TO HIS CONVICTION.

B. A PRIMA FACIE SHOWI NG OF INEFFECTIVE ASSISTANCE OF COUNSEL MANDATES APPROVAL OF [DEFENDANT'S] REQUEST FOR RELIEF OR, IN THE ALTERNATIVE, AN EVIDENTIARY HEARING.

C. DEFENSE COUNSEL ERRED IN FAILING TO OBJECT TO THE VICTIM'S SISTER'S HEARSAY REPORT OF WHAT THE VICTIM HAD TOLD HER, HOURS BEFORE HER DEATH, AS TO THE CLOTHING OF HER VISITOR AND STATEMENTS AND CONDUCT OF THE MAN WHO HAD VISITED HER EARLIER IN THE DAY OF HER DEATH.

D. [DEFENDANT] HAD AVAILABLE A VALID FOURTH AMENDMENT ARGUMENT AGAINST THE POLICE'S INTRUSION WITHO UT A WARRANT INTO HIS LIVING SPACE, AND COUNSEL FAILED TO ASSERT IT, AND THUS HE5 A

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E. FAILURE TO OBJECT TO EVIDENCE OF [DEFENDANT'S] INMATE/CONVICTED STATUS OR TO SEEK A LIMITING INSTRUCTION CONSTITUTED INE FFECTIVE ASSISTANCE OF COUNSEL.

F. DEFENSE COUNSEL ERRED IN FAILING TO OBJECT TO TESTIMONY THAT IN RESPONSE TO A PARTICULARLY IMPORTANT POLICE QUESTION, [DEFENDANT] INVOKED HIS RIGHT TO COUNSEL

– AN INVOCATION THAT IS IMPROPER TO PLACE BEFORE THE JURY, AN D THAT THE JURY NEVER SHOULD HAVE HEARD.

G. DEFENSE COUNSEL FAILED TO PROTECT DEFENDANT'S FIFTH AMENDMENT RIGHTS; DEFENSE COUNSEL ERRED IN FAI LING TO OBJECT TO THE INTRODUCTION OF ANY QUESTIONING BY POLICE AFTER [DEFENDANT] HAD EXPRESSED HIS DESIRE TO HA VE COUNSEL, AT THEIR FIRST MEETING, ON THE DAY OF HIS DETENTION, AND SUCH POLICE CONDUCT VIOLATED [DEFENDANT'S] FIFTH AMENDMENT AND MIRANDA RI GHTS.

H. THE PROSECUTOR'S SUMMATION FEATURED SEVERAL IMPROPRIETIES, MOST NOTABLY A FORBIDDEN "CALL TO ARMS [, " ] THAT DEPRIVED [DEFENDANT] OF A FAIR TRIAL

– AND THAT DEFENSE COUNSEL ALLOWED TO PASS WITHOUT OBJECTION.

I. THE [JUDGE] ERRED IN CLOSING OFF THE OPTION OF A LESSER INCLUDED CONVICTION AND [,] IN EFFECT [,] PARTIALLY DIRECTING A6 A

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POINT II APPELLATE COUNSEL ERRED IN FAILING TO RAISE ON APPEAL THE MULTIPLE ISSUES SET FORTH HEREIN.

POINT III THE [JUDGE] IN THE INTEREST OF JUSTICE SHOUL D HOLD THIS PETITION NOT TIME BARRED.

POINT IV THE [JUDGE'S] RETROSPECTIVE TRIVIALIZATION OF FORMER COUNSEL [S'] LAPSES AS "STRATEGIC CH OICES" IS A CONCLUSORY RATIONALIZATION WITHOUT ANY BASIS.

W e conclude that defendant's arguments are without sufficien t merit to warrant

discussion in a written opinion. R. 2:11

- 3(e)(2). W e affirm substantially for the

reasons J udge Malestein gave in h is well

- reasoned and comprehensive opinion.

In addition to agreeing that defendant's petition is time

- barred, w e add th e
following brief remarks.

To establish a prima facie claim of ineffective assistance of counsel,

defend ant is obliged to show not only that the particular manner in which7 A

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counsel's performance was deficient, but also that the deficiency prejudiced his

right to a fair trial. Strickland v. Washington , 466 U.S. 668, 687 (1984) ; State

v. Fritz , 105 N.J. 42, 52 (1987). U nder the first prong of th e Strickland test ,

defendant must demonstrate that " counsel made errors so serious that counsel

was not functioning as the ' counsel ' guaranteed the de fendant by the Sixth

Amendment." Strickland , 466 U.S. at 687. Under the second prong, defenda nt

must sho w " that counsel's errors were so serious as to deprive the defendant of

a fair trial, a trial whose result is reliable." Ibid. That is, " there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the

proceed ing would h ave been different. " Id. at 694. There is a strong

presumption that counsel "rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment." Id. at 690.

Defendant did not satisfy either p rong of the Strickland test.

Affirmed.