SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3225-15T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JERMAINE JOHNSON,

a/k/a JERMAINE RESHID,

GERMAINE JOHNSON, JR.,

JERMAYNE JOHSON, JERAMINE

JOHNSON, MAINE,

Defendant-Appellant.

____________________________________

Submitted July 25, 2017 – Decided

Before Judges Ostrer and Leone.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Indictment No. 

06-05-1776.

Joseph E. Krakora, Public Defender, attorney 

for appellant (John Douard, Assistant Deputy 

Public Defender, of counsel and on the brief). 

Mary Eva Colalillo, Camden County Prosecutor,

attorney for respondent (Maura Murphy 

Sullivan, 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NOT FOR PUBLICATION WITHOUT THE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.

October 6, 2017
2 A-3225-15T3

Defendant Jermaine Johnson appeals the November 18, 2015 

order denying his petition for post-conviction relief (PCR). The 

PCR court found that the petition was untimely under Rule 3:22-

12. We agree, and affirm.

I.

The following facts come from the transcripts of defendant's 

plea hearing and sentencing hearing.

In 2005, defendant had sexual relations when age twenty-three 

with B.Y., a fifteen-year old girl. B.Y. gave birth to a child. 

Defendant was indicted for second-degree sexual assault, N.J.S.A.

2C:14-2(c)(4), and third-degree endangering the welfare of a 

child, N.J.S.A. 2C:24-4(a).

Trial counsel negotiated a plea agreement that resulted in 

the dismissal of the more serious second-degree sexual assault 

charge, his sentence concern, his guilty plea to the less-serious

charge of third-degree endangering the welfare of a child, and the 

prosecutor's recommendation of a probationary sentence which would 

be concurrent to any sentence he received on his pending charge 

for second-degree unlawful possession of a handgun without a 

permit, N.J.S.A. 2C:39-5(b).

Pursuant to the plea agreement, a trial judge sentenced

defendant to five years of probation, twenty-five days in jail
3 A-3225-15T3

which defendant had already served, penalties, and assessments. 

Defendant further agreed not to have any contact with B.Y. and her 

family. Defendant's January 8, 2007 Judgment of Conviction (JOC)

stated that he was sentenced to parole supervision for life (PSL). 

Defendant admitted he "was cited for a violation of parole 

supervision for life" in 2011.1 Thereafter, on December 26, 2012,

and again on January 22, 2013, defendant signed a form setting 

forth the "General Conditions" for "Parole Supervision for Life"

acknowledging: 

I understand that pursuant to N.J.S.A. 2C:43-

6.4, my sentence includes a special sentence 

of parole supervision for life. I understand 

that during the service of parole supervision 

for life I shall be in the legal custody of 

the Commissioner of the Department of 

Corrections and I shall be under the 

supervision of the Division of Parole of the 

State Parole Board.

On October 29, 2014, more than seven years and ten months 

after his judgment of conviction, defendant filed a petition for 

PCR. After hearing oral argument, Judge John T. Kelley denied 

defendant's PCR petition. The court held that defendant's claims 

 

1 This apparently related to defendant's use of a condom containing 

yellow liquid to defraud a drug test ordered by his parole officer. 

Defendant was convicted of third-degree defrauding the 

administration of a drug test, N.J.S.A. 2C:36-10(d), and fourthdegree possession of an instrument or substance to defraud the 

administration of a drug test, N.J.S.A. 2C:36-10(e), and was 

sentenced to eighteen months in prison. 
4 A-3225-15T3

were time-barred under Rule 3:22-12(a); that he had failed to 

demonstrate a prima facie case of ineffective assistance of 

counsel; and that his claims relating to the constitutionality of 

Megan's Law were procedurally barred under Rule 3:22-4(a). 

Defendant appeals, arguing:

POINT I - THE TIME BAR IN RULE 3:22-12 SHOULD 

BE RELAXED BECAUSE THE DELAY IN THIS CASE WAS 

DUE TO EXCUSABLE NEGLECT, AND ENFORCEMENT OF 

THE TIME BAR WOULD RESULT IN A FUNDAMENTAL 

INJUSTICE. 

POINT II - THE PETITION FOR POST-CONVICTION 

RELIEF SHOULD HAVE BEEN GRANTED, OR, AT A 

MINIMUM, AN EVIDENTIARY HEARING SHOULD HAVE 

BEEN ORDERED. 

A. The Record Is Sufficient To Grant 

Mr. Johnson His Petition For PCR.

B. At A Minimum, Mr. Johnson Should 

Have Been Afforded An Evidentiary 

Hearing, As He Had Made A Prima 

Facie Case For Ineffective 

Assistance Of Counsel.

POINT III - PSL IS AN UNCONSTITUTIONAL 

VIOLATION OF DUE PROCESS AND FUNDAMENTAL 

FAIRNESS. 

II.

A PCR court need not grant an evidentiary hearing unless "'a 

defendant has presented a prima facie [case] in support of postconviction relief.'" State v. Marshall, 148 N.J. 89, 158

(alteration in original), cert. denied, 522 U.S. 850, 118 S. Ct.

140, 139 L. Ed. 2d 88 (1997). "To establish such a prima facie 
5 A-3225-15T3

case, the defendant must demonstrate a reasonable likelihood that 

his or her claim will ultimately succeed on the merits." Ibid.

The court must view the facts "'in the light most favorable to 

defendant.'" Ibid.; accord R. 3:22-10(b).

If the PCR court has not held an evidentiary hearing, we 

"conduct a de novo review." State v. Harris, 181 N.J. 391, 421 

(2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed.

2d 898 (2005). We must hew to that standard of review.

To show ineffective assistance of counsel, a defendant must 

satisfy the two-pronged test of Strickland v. Washington, 466 U.S.

668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted in 

State v. Fritz, 105 N.J. 42, 53 (1987). In the context of a guilty

plea, the defendant must show "that (i) counsel's assistance was 

not 'within the range of competence demanded of attorneys in 

criminal cases'; and (ii) 'that there is a reasonable probability 

that, but for counsel's errors, [the defendant] would not have 

pled guilty and would have insisted on going to trial.'" State 

v. DiFrisco, 137 N.J. 434, 457 (1994) (citation omitted) (quoting 

Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 371, 88 L. Ed.

2d 203, 210 (1973)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949,

133 L. Ed. 2d 873 (1996); see also State v. Gaitan, 209 N.J. 339,

351 (2012). Moreover, to obtain relief under the second prong,

"a petitioner must convince the court that a decision to reject 
6 A-3225-15T3

the plea bargain would have been rational under the circumstances."

State v. O'Donnell, 435 N.J. Super. 351, 3712 (App. Div. 

2014)(quoting Padilla v. Kentucky, 559 U.S. 356, 372, 130 S. Ct.

1473, 1485, 176 L. Ed. 2d 284, 297 (2010)).

III.

Defendant cannot show a reasonable likelihood of success 

because defendant's PCR petition is untimely. See State v. 

Brewster, 429 N.J. Super. 387, 398 (App. Div. 2013). Rule 3:22-

12(a)(1) has long provided that "[n]o petition shall be filed 

. . . more than 5 years" after the entry of the challenged judgment 

of conviction. Here, defendant challenges the validity of his 

guilty plea underlying a judgment of conviction dated January 8,

2007. His PCR petition was filed October 29, 2014, more than 

seven years and ten months after the date of his judgment of 

conviction.

"Neither the parties nor the court may . . . enlarge the time 

specified by . . . R. 3:22-12[.]" R. 1:3-4(c). Rule 3:22-12 

permits a late filing only if the defendant "alleges facts showing 

that the delay beyond said time 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." R.
7 A-3225-15T3

3:22-12(a)(1) (emphasis added); see R. 3:22-12(c).

2 Such a claim 

must be made in the verified petition, which must allege facts 

sufficient to support it. State v. Cann, 342 N.J. Super. 93, 101-

02 (App. Div.), certif. denied, 170 N.J. 208 (2001); see R. 3:22-

8.

A.

Defendant first argues that the time bar should be relaxed

due to excusable neglect because of his confusion as to whether 

he was subject to Community Supervision for Life (CSL) or PSL.

N.J.S.A. 2C:43-6.4 is a component of a series of laws commonly 

referred to as Megan's Law. Prior to 2004, it provided for CSL 

as a "special sentence" designed to "protect the public from 

recidivism by sexual offenders." State v. Perez, 220 N.J. 423,

436-37 (2015). The statute was amended effective January 14,

 

2 As defendant did not file his PCR petition until October 2014, 

it is governed by the current version of Rule 3:22-12, which the 

Supreme Court made effective February 1, 2010. E.g, Brewster, 

supra, 429 N.J. Super. at 398 n.3. "[C]ourt rules 'are given 

retrospective application if vested rights are not thereby 

disturbed.'" Shimm v. Toys from the Attic, Inc., 375 N.J. Super.

300, 304-05 (App. Div. 2005) (quoting Feuchtbaum v. Constantini, 

59 N.J. 167, 172 (1971)); see also Kas Oriental Rugs, Inc. v. 

Ellman, 407 N.J. Super. 538, 549-52 (App. Div.), certif. denied, 

200 N.J. 476 (2009). Defendant had no vested right preventing the 

Court from amending the Rule's procedures for PCR petitions. See

State v. Rose, 425 N.J. Super. 463, 468 (App. Div. 2012). Nor, 

as set forth below, is it manifestly unjust to apply this version 

of Rule 3:22-12. See James v. N.J. Mfrs. Ins. Co., 216 N.J. 552, 

563 (2014).
8 A-3225-15T3

2004, when all references to CSL were replaced with references to 

PSL. Id. at 437.

"[A] close examination of the pre- and post-[amendment] 

versions of N.J.S.A. 2C:43-6.4" shows that the amendment made 

"substantive change[s]" to the CSL post-sentence supervisory 

scheme. Id. at 440. For example, a person subject to CSL is 

supervised as if on parole, but violation of CSL is punishable 

only as a fourth-degree crime. Id. at 441. In other words, "the 

Parole Board cannot return a defendant to prison through the 

parole-revocation process." Ibid. Rather, the Parole Board's 

only option is to "refer the matter to the county prosecutor" who 

can choose whether to prosecute. Ibid.

By contrast, a person on PSL is placed "'in the legal custody 

of the Commissioner of Corrections [and] shall be supervised by 

the Division of Parole of the State Parole Board' for life." Ibid.

(quoting N.J.S.A. 2C:43-6.4(b)). "A violation of PSL may be 

prosecuted as a fourth-degree offense, N.J.S.A. 2C:43-6.4(d), but 

it may also be treated as a parole violation, N.J.S.A. 2C:43-

6.4(b)." Ibid. Thus, the Parole Board also has the option to 
9 A-3225-15T3

administratively revoke an offender's parole and send the offender 

to prison without a criminal prosecution. Ibid.3

During defendant's October 3, 2006 plea hearing, the 

prosecutor stated that under the plea bargain, "defendant has 

agreed . . . that he's going to be under parole supervision for 

life." Trial counsel stated the prosecutor's representations were 

"true and accurate." However, the plea forms incorrectly

referenced CSL. Additionally, at the plea hearing and the January 

5, 2007 sentencing hearing the trial judge stated that defendant 

would receive CSL. However, defendant's JOC clearly stated

defendant was subject to PSL. 

The regrettable inconsistency regarding use of the terms CSL 

and PSL do not excuse defendant's delay in filing for PCR. First,

defendant was aware of the inconsistent references to CSL and PSL 

as early as his plea hearing. We agree with the PCR court that 

"defendant was on notice that the sentence included Megan's Law 

and parole supervision for life, because the prosecutor explicitly 

mentioned it during the plea hearing in 2006." 

 

3 Defendant notes that further changes were made to the statute in 

2014, but those changes are irrelevant to defendant's decision to 

plead guilty in 2006. Moreover, the changes have not yet been 

applied to defendant. Thus, we do not consider their applicability 

to defendant. 
10 A-3225-15T3

Moreover, as the PCR court noted, defendant knew he was 

subject to PSL in 2011, when he admittedly was cited for a 

violation of PSL. In any event, it would have been clear to 

defendant that he was subject to PSL no later than December 26,

2012, when he signed a form stating the "General Conditions" for 

"Parole Supervision for Life," and acknowledged being sentenced 

and serving PSL. Nevertheless, defendant still waited until 

October 29, 2014 to file for PCR. 

To excuse his late filing, defendant relies on State v. 

Schubert, 212 N.J. 295 (2012). However, Schubert has no 

application to this case. Schubert addressed whether an offender 

sentenced before the 2004 effective date of the PSL amendment 

could have PSL retroactively imposed on him. By contrast,

defendant was sentenced in 2007 after the 2004 effective date of 

the PSL amendment, so defendant was always governed by the 

requirement that he be sentenced to PSL. Moreover, Schubert was 

decided on October 22, 2012, more than two years before defendant 

filed his PCR petition. 

Defendant also argues that where "a defendant forbears from 

initiating PCR proceedings within five years in favor of 

successfully completing probation and moving on with his 

rehabilitation, it would be unjust to deny him the opportunity to 

present his claims on PCR on simply procedural grounds." However,
11 A-3225-15T3

defendant makes no such claim of forbearance in his certifications. 

In any event, it does not constitute excusable neglect for ignoring 

the five-year period to challenge his conviction. 

Defendant waited to file his PCR petition more than seven 

years and ten months after his judgment of conviction. "Absent 

compelling, extenuating circumstances, the burden of justifying a 

petition filed after the five-year period will increase with the 

extent of the delay." Id. at 492 (quoting State v. Mitchell, 126 

N.J. 565, 580 (1992)). Here, defendant has no valid reasons for 

his delay of almost three years beyond the five-year period. See

State v. Dugan, 289 N.J. Super. 15, 21 (App. Div.) (finding 

"defendant's delay in filing his petition was significant" and 

inexcusable because he "delayed more than a year and a half after 

expiration of the five year period"), certif. denied, 145 N.J. 373 

(1996). The option of seeking PCR relief "could have been pursued 

well before . . . and should have been known to defendant many 

years ago. He simply did not avail himself of it in a diligent 

fashion." State v. Milne, 178 N.J. 486, 494 (2004). Thus, we 

agree with the PCR court that defendant has failed to show 

excusable neglect.

B.

Defendant also failed to show that "enforcement of the time 

bar would result in a fundamental injustice." R. 3:22-12(a)(1). 
12 A-3225-15T3

Defendant would have received PSL if he pled or was found guilty 

to either charged offense. Defendant does not claim innocence of

improperly touching and penetrating the fifteen-year-old victim 

who became pregnant and gave birth.

He argues that he received ineffective assistance of counsel

in not clarifying if he was pleading guilty to CSL or PSL, and 

that he would not have pled guilty if he had known he would be 

sentenced to PSL. However, the plea agreement negotiated by trial 

counsel was favorable to defendant.4

By pleading guilty to the less serious charge of third-degree 

endangering the welfare of a child, defendant avoided a conviction 

on the more serious charge of second-degree sexual assault, and 

received a sentence of probation which was concurrent to any 

sentence he would receive on his pending second-degree gun charge. 

Had defendant been found guilty on all charges, he faced a possible 

total sentence of 25 years of imprisonment. N.J.S.A. 2C:43-6(a). 

Thus, it would be difficult for defendant to show that "a 

decision to reject the plea bargain would have been rational under 

the circumstances," Padilla, supra, 559 U.S. at 372, 130 S. Ct.

 

4 In fact, the plea agreement was so favorable to defendant that 

during the sentencing hearing the trial judge stated he was "not 

happy with this" plea agreement. 
13 A-3225-15T3

at 1485, 176 L. Ed. 2d at 297, let alone show a fundamental 

injustice. 

Defendant alleges that at sentencing the court misinformed 

him about the consequences of his plea, and that this information 

created a fundamental injustice. However, any alleged 

misinformation at sentencing could not have affected defendant's 

earlier decision to plead guilty. Further, defendant waived any 

argument regarding misinformation from the trial court by not 

raising it on direct appeal. See R. 3:22-4(a).

Thus, defendant failed to show excusable neglect and

fundamental injustice as required by Rule 3:22-12(a)(1). 

Therefore, he cannot excuse his failure to file his PCR petition 

within five years. See R. 3:22-12(c); R. 1:3-4(c). Accordingly,

the PCR court properly denied his PCR petition. See Brewster,

supra, 429 N.J. Super. at 398.

C.

Defendant lastly tries to challenge the constitutionality of 

PSL. However, a PCR petition is not "a substitute for appeal."

R. 3:22-3. "Any ground for relief not raised . . . in any appeal 

taken [from the conviction] is barred from assertion" in a PCR 

proceeding unless "(1) the ground for relief not previously 

asserted could not reasonably have been raised in any prior 

proceeding; or (2) [the] enforcement of the bar to preclude claims,
14 A-3225-15T3

including one for ineffective assistance of counsel, would result 

in fundamental injustice[.]" R. 3:22-4(a). This rule is designed 

to guard against piecemeal proceedings. Mitchell, supra, 126 N.J.

at 584-85.

Defendant cannot satisfy the exceptions set forth in Rule

3:22-4(a). Moreover, as set forth above, he cannot show 

fundamental injustice. R. 3:22-4(a)(2). Thus, the PCR court 

properly barred defendant's constitutional claim on this grounds 

as well as untimeliness. 

Affirmed.