SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5580-17T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANK M. BROWN, a/k/a FRANK 

ACE, FRANK 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, Cumberland 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, Assistant 

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NOT FOR PUBLICATION WITHOUT THE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, 2019
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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 ineffective 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 filed within five years of the date of 

judgment of conviction. 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 

[defendant'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 justify 

filing a petition after the five-year period will increase with the extent of the 
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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 determination 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. at 400 (quoting Mitchell, 126 

N.J. at 587). 

As the PCR judge emphasized, 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 and subsequent 

entry of judgment. The PCR judge was:

[M]indful that the State simply cannot prosecute a case 

for a crime which occurred [forty] years ago. The State 

has indicated that the physical evidence is destroyed, 

damaged[,] or useless. Witnesses have died, the trial 

transcript is incomplete[,] and memories have certainly 

faded. However, [forty] years ago the evidence of guilt 

was overwhelming[.] 

The PCR judge noted, "[t]here is not a scintilla of evidence or . . . excusable

neglect asserted nor argued by [defendant]." The PCR judge further stated

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

[defendant's] excusable neglect." As the State correctly emphasizes, defendant 
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does not attempt to provide any sort of "plausible explanation" for his failure to 

file a timely PCR. The 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 EFFECTIVE 

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 SHOWING 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 WITHOUT A 

WARRANT INTO HIS LIVING SPACE, AND 

COUNSEL FAILED TO ASSERT IT, AND THUS HE 
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SUFFERED A VIOLATION OF HIS 

CONSTITUTIONAL RIGHTS.

E. FAILURE TO OBJECT TO EVIDENCE OF 

[DEFENDANT'S] INMATE/CONVICTED STATUS 

OR TO SEEK A LIMITING INSTRUCTION 

CONSTITUTED INEFFECTIVE 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, AND 

THAT THE JURY NEVER SHOULD HAVE HEARD.

G. DEFENSE COUNSEL FAILED TO PROTECT 

DEFENDANT'S FIFTH AMENDMENT RIGHTS; 

DEFENSE COUNSEL ERRED IN FAILING TO 

OBJECT TO THE INTRODUCTION OF ANY 

QUESTIONING BY POLICE AFTER [DEFENDANT] 

HAD EXPRESSED HIS DESIRE TO HAVE 

COUNSEL, AT THEIR FIRST MEETING, ON THE 

DAY OF HIS DETENTION, AND SUCH POLICE 

CONDUCT VIOLATED [DEFENDANT'S] FIFTH 

AMENDMENT AND MIRANDA RIGHTS. 

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 A 
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VERDICT ON FELONY MURDER; TRIAL 

COUNSEL FAILED TO OBJECT; AND ALTHOUGH

TRIAL COUNSEL PROPERLY OBJECTED TO THE 

FLAWED INDICTMENT (THAT FAILED TO 

ALLEGE A PREDICATE FELONY) APPELLATE 

COUNSEL IGNORED THE ISSUE, THUS 

COMPROMISING [DEFENDANT'S] APPEAL.

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 

SHOULD HOLD THIS PETITION NOT TIME 

BARRED.

POINT IV

THE [JUDGE'S] RETROSPECTIVE 

TRIVIALIZATION OF FORMER COUNSEL[S']

LAPSES AS "STRATEGIC CHOICES" IS A 

CONCLUSORY RATIONALIZATION WITHOUT 

ANY BASIS. 

We conclude that defendant's arguments are without sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the 

reasons Judge Malestein gave in his well-reasoned and comprehensive opinion. 

In addition to agreeing that defendant's petition is time-barred, we add the 

following brief remarks. 

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

defendant is obliged to show not only that the particular manner in which 
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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). Under the first prong of the Strickland test, 

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

was not functioning as the 'counsel' guaranteed the defendant by the Sixth 

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

must show "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 

proceeding would have 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 prong of the Strickland test. 

Affirmed.