RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0772-20

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARCUS WHITFIELD,

Defendant-Appellant.

_______________________

Submitted May 3, 2022 – Decided June 22, 2022

Before Judges DeAlmeida and Smith.

On appeal from the Superior Court of New Jersey, Law 

Division, Ocean County, Indictment No. 07-02-0279.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Dianne Glenn, Designated Counsel, on the 

brief).

Bradley D. Billhimer, Ocean County Prosecutor, 

attorney for respondent (Samuel Marzarella, Chief 

Appellate Attorney, of counsel; Shiraz Deen, Assistant 

Prosecutor, 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NOT FOR PUBLICATION WITHOUT THE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.
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Defendant Marcus Whitfield appeals from the May 28, 2020 order of the 

Law Division dismissing his petition for post-conviction relief (PCR) without 

an evidentiary hearing. We affirm.

I.

On July 16, 2007, defendant entered a guilty plea to second-degree sexual 

assault, N.J.S.A. 2C:14-2(c)(4). He admitted to having engaged in oral sex with 

a fifteen-year-old boy.

On February 15, 2008, the trial court, consistent with the plea agreement, 

sentenced defendant to a three-year term of imprisonment, as well as Megan's 

Law registration and parole supervision for life (PSL). The court also dismissed

the five remaining counts of the indictment. Defendant did not file a direct 

appeal of his conviction or sentence.

On August 14, 2019, eleven and one-half years after entry of his judgment 

of conviction, defendant filed a complaint in the Law Division seeking PCR. He 

alleged that his trial counsel was ineffective for failing to explain to him the 

ramifications of PSL. He sought an evidentiary hearing and to vacate his plea.

The State moved to dismiss the petition, arguing it was untimely and did 

not set forth a prima facie case of ineffective assistance of counsel. Defendant 

argued the late filing was the result of excusable neglect due to his imprisonment 
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and transfers between prisons for parole violations, as well as his counsel's 

failure to promptly send him a copy of trial records.

On May 28, 2020, Judge Guy P. Ryan issued a written opinion dismissing 

the complaint without an evidentiary hearing. Judge Ryan found the petition 

was filed six and one-half years after the five-year period from entry of the 

judgment of conviction established in Rule 3:22-12(a)(1). In addition, the judge 

found defendant offered no evidence to support his claim the late filing was the 

result of excusable neglect. See R. 3:22-12(a)(1)(A). While recognizing

defendant was incarcerated for parole violations after serving his sentence and 

transferred between prisons, Judge Ryan concluded he offered no proof that he 

could not file a PCR petition during the five-year period after entry of his 

judgment of conviction. The judge noted that "the majority of [defendant's] 

prison transfers occurred after the 2013 deadline to file a timely petition" and 

many incarcerated defendants file PCR petitions. The judge found defendant 

did not need his case records to file a petition.

Judge Ryan also concluded the substantive allegations in the petition, if 

considered, were meritless. He found that at the plea hearing the court "inquired 

in extensive detail about [defendant's] understanding of the consequences of a 

plea to a sexual offense by meticulously reviewing the supplemental plea forms" 
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that addressed PSL. As Judge Ryan noted, during his exchange with the court, 

defendant stated he was pleased with the representation provided to him and that 

the plea agreement had been explained by counsel to his satisfaction. In fact, 

Judge Ryan found, defendant hired the same attorney to represent him with 

respect to subsequent parole violations. Judge Ryan added, "[n]otably, 

[defendant] has not asserted innocence. Rather, he is seeking to vacate his plea 

because he is now dissatisfied with the burdens of PSL." A May 28, 2020 order 

memorializes the court's decision.

This appeal follows. Defendant makes the following arguments.

POINT I

THE TRIAL JUDGE ERRED IN DETERMINING 

THE DEFENDANT'S PCR PETITION WAS TIMEBARRED PURSUANT TO RULE 3:22-12(a) AS 

DEFENDANT ALLEGED FACTS SHOWING THE 

DELAY WAS DUE TO EXCUSABLE NEGLECT 

AND THE ENFORCEMENT OF THE TIME-BAR 

WILL RESULT IN A FUNDAMENTAL INJUSTICE.

POINT II

THE PCR JUDGE ERRED IN DENYING 

DEFENDANT AN EVIDENTIARY HEARING AS 

DEFENDANT RECEIVED INEFFECTIVE 

ASSISTANCE OF COUNSEL WHEN THE TRIAL 

ATTORNEY FAILED TO ADVISE DEFENDANT OF 

THE AUTOMATIC PAROLE SUPERVISION FOR 

LIFE CONSEQUENCES WHEN PLEADING 

GUILTY TO SEXUAL ASSAULT.
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II.

Rule 3:22-12 requires a first PCR petition to be filed within five years of 

entry of the judgment of conviction. As case law instructs, the five-year time 

bar for a first PCR petition is an important procedural requirement. The time 

bar only should be relaxed in "exceptional" situations that are specified in the 

Rule. See e.g., State v. Mitchell, 126 N.J. 565, 576-77 (1992) (declaring timebarred a PCR petition filed six-and-a-half years after a defendant's conviction); 

State v. Jackson, 454 N.J. Super. 284, 295-96 (App. Div. 2018) (enforcing the 

time bar against a defendant whose petition was filed fourteen years after his 

conviction).

Rule 3:22-12(a)(1)(A) provides that a PCR petition may be considered if

it alleges facts showing that the delay beyond [the fiveyear bar] was due to defendant's excusable neglect and 

that there is a reasonable probability that if the 

defendant's factual assertions were found to be true 

enforcement of the time bar would result in a 

fundamental injustice . . . .

The factors considered by the court to determine if exceptional circumstances 

exist are the cause of the delay, the extent of the delay, the prejudice to the State, 

and the importance of the defendant's claims. State v. Afanador, 151 N.J. 41, 

52 (1997). A defendant must submit "sufficient competent evidence" to 

establish excusable neglect. State v. Brown, 455 N.J. Super. 460, 470 (App. 
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Div. 2018). A substantial delay in filing a PCR petition increases the already 

substantial burden to show excusable neglect and that a fundamental injustice 

will result if the petition is not heard. See Afanador, 151 N.J. at 52 (recognizing 

"the burden to justify filing a petition after the five-year period will increase 

with the extent of the delay.").

With respect to the substantive allegations in defendant's petition, under 

Rule 3:22-2(a), a defendant is entitled to post-conviction relief if there was a 

"[s]ubstantial denial in the conviction proceedings of defendant's rights under 

the Constitution of the United States or the Constitution or laws of the State of 

New Jersey . . . ." "A petitioner must establish the right to such relief by a 

preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459 

(1992). "To sustain that burden, specific facts" which "would provide the court 

with an adequate basis on which to rest its decision" must be articulated. State 

v. Mitchell, 126 N.J. 565, 579 (1992).

The Sixth Amendment to the United States Constitution and Article I, 

Paragraph 10 of the New Jersey Constitution guarantee criminal defendants the 

right to the effective assistance of counsel. State v. O'Neil, 219 N.J. 598, 610 

(2014) (citing Strickland v. Washington, 466 U.S. 668, 686 (1984); State v. 

Fritz, 105 N.J. 42, 58 (1987)). To succeed on a claim of ineffective assistance 
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of counsel, the defendant must meet the two-part test established by Strickland

and adopted by our Supreme Court in Fritz. 466 U.S. at 687; 105 N.J. at 58.

Under Strickland, a defendant first must show that his attorney made 

errors "so serious that counsel was not functioning as the 'counsel' guaranteed 

the defendant by the Sixth Amendment." 466 U.S. at 687. Counsel's 

performance is deficient if it "[falls] below an objective standard of 

reasonableness." Id. at 688.

A defendant also must show that counsel's "deficient performance 

prejudiced the defense[,]" id. at 687, because "there is a reasonable probability 

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

have been different." Id. at 694; accord State v. Nunez-Valdez, 200 N.J. 129, 

139 (2009). "A reasonable probability is a probability sufficient to undermine 

confidence in the outcome . . . ." Strickland, 466 U.S. at 694.

"[A] court need not determine whether counsel's performance was 

deficient before examining the prejudice suffered by the defendant as a result of 

the alleged deficiencies." Id. at 697; State v. Marshall, 148 N.J. 89, 261 (1997). 

"If it is easier to dispose of an ineffectiveness claim on the ground of lack of 

sufficient prejudice, which we expect will often be so, that course should be 

followed." Strickland, 466 U.S. at 697. The right to the effective assistance of 
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counsel extends to legal assistance related to the entry of a guilty plea. State v. 

Gaitan, 209 N.J. 339, 350-51 (2012).

An evidentiary hearing on a PCR petition is required only when: (1) a 

defendant establishes a prima facie case in support of PCR; (2) the court 

determines that there are disputed issues of material fact that cannot be resolved 

by review of the existing record; and (3) the court determines that an evidentiary 

hearing is required to resolve the claims asserted. State v. Porter, 216 N.J. 343, 

354 (2013) (citing R. 3:22-10(b)). "A prima facie case is established when a 

defendant demonstrates 'a reasonable likelihood that his or her claim, viewing 

the facts alleged in the light most favorable to the defendant, will ultimately 

succeed on the merits.'" Id. at 355 (quoting R. 3:22-10(b)).

Having carefully reviewed defendant's arguments in light of the record 

and applicable legal principles, we affirm the May 28, 2020 order substantially 

for the reasons stated by Judge Ryan in his thorough and well-reasoned written 

opinion. Defendant proffered no evidence that he was unable to file a petition 

during the years he was serving the sentence for his conviction, after his release 

from prison, or during the subsequent periods of incarceration for violating PSL, 

most of which took place after expiration of the five-year filing period. 

Moreover, as Judge Ryan found, the record unequivocally establishes that the 
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judge who accepted defendant's plea exhaustively discussed with him each 

aspect of the potential sentence for sexual assault, including PSL and the 

possibility that he could be incarcerated for up to eighteen months were he to 

violate the terms of PSL. Finally, defendant offers no convincing argument that 

had he known of the consequences of PSL he would have elected to go to trial, 

given the availability of his teenage victim, who testified at defendant's 

sentencing, to prove the straightforward factual basis of the charges then 

pending against him, and the fact that a conviction of the six charges he faced 

would have resulted in the imposition of the statutorily mandated PSL.

Affirmed.