RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0274-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KAVON A. COLEMAN,

a/k/a KAVON A. 

POWELL-COLEMAN,

Defendant-Appellant.

________________________

Submitted October 23, 2019 - Decided

Before Judges Gooden Brown and Mawla.

On appeal from the Superior Court of New Jersey, Law 

Division, Ocean County, Indictment No. 07-10-1753.

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; Cheryl L. Hammel, 

Assistant Prosecutor, 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NOT FOR PUBLICATION WITHOUT THE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 1, 2019
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PER CURIAM

Defendant Kavon A. Powell-Coleman appeals from a June 12, 2018 order 

denying his petition for post-conviction relief (PCR) without an evidentiary 

hearing. We affirm for the reasons expressed in the thorough and well-written 

opinion of Judge Guy P. Ryan. 

In 2007, an Ocean County grand jury indicted defendant of: second-degree

sexual assault, N.J.S.A. 2C:14-2(c)(1), count one; third-degree endangering the 

welfare of a child, N.J.S.A. 2C:24-4(a), counts two and four; and fourth-degree

sexual contact, N.J.S.A. 2C:14-3(b), count three. On May 5, 2009, defendant 

entered into a plea agreement and pled guilty to count two in exchange for the 

dismissal of the remaining charges. On September 11, 2009, the court sentenced 

defendant in accordance with the plea agreement to 491 days of incarceration, 

which was the time he served in the Ocean County jail, parole supervision for 

life (PSL), and Megan's Law registration,1and required defendant to pay 

penalties and fines, and provide DNA samples. 

Defendant did not appeal from his conviction or seek to retract his guilty 

plea. Instead, in August 2017, nearly eight years later, he filed a PCR petition. 

He argued there was excusable neglect for filing his petition out of time, namely, 

 

1 N.J.S.A. 2C:7-1 to -23.
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neither the court, nor his counsel, advised him of the five-year time limitation

for PCR petitions. Additionally, he claimed his trial and plea counsel were 

ineffective because they failed to explain his plea subjected him to PSL and 

forced him to enter into the plea instead of proceeding to trial. He argued the 

court should address the merits of his petition and not deny it on grounds of time 

or procedural bars. 

Following oral argument, Judge Ryan issued a detailed, twenty-five page 

decision denying the petition. The judge found the petition was time barred 

because it was filed beyond the five-year time limitation set forth in Rule 3:22-

12(a)(1). He determined defendant failed to demonstrate excusable neglect as a 

general matter. The judge also rejected defendant's claim his lack of knowledge 

of the time limitation was excusable neglect because "at the time of the plea and 

sentence in this matter [Rule 3:21-4(h)] did not require advisement of the fiveyear time frame for filing a PCR [petition]." The judge found defendant's 

petition was procedurally barred pursuant to Rule 3:22-4 because he could have 

raised the claims related to the voluntary nature of his plea on direct appeal. 

The judge found even if the petition was timely and not procedurally

barred, an evidentiary hearing was not warranted because defendant failed to 

establish a prima facie case of ineffective assistance of counsel. Reviewing the 
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record of defendant's plea and sentencing proceedings, the judge stated 

defendant's "bald assertion he was 'coerced' to enter into the plea agreement is 

completely unsupported by the record." The judge referred to defendant's plea 

testimony where he advised the court he had enough time to contemplate the 

plea, meet with his counsel who answered his questions, and was satisfied with 

his counsel's representation. The judge made similar findings based on his 

review of the sentencing transcript. 

Judge Ryan also concluded "[t]he record demonstrates [defendant] was 

repeatedly advised he was subject to PSL. No colorable argument has been 

made that [defendant] was unaware of this requirement." The judge concluded 

defendant's "counsel were very effective in securing a favorable result for 

[him]." The judge found no credible basis to support defendant's claim he 

wanted to proceed to trial. As the judge noted, on the day of defendant's plea, 

the State was prepared to proceed with its case and 

[t]he victim was present in the courtroom. . . . [I]n his 

PCR petition, defendant [asserts] that he was planning 

to testify that the contact was consensual. Thus, 

[defendant] would have implicated himself and 

admitted his sexual contact with a [fifteen-]year-old 

girl, hardly a sure win at trial for [defendant].

The judge concluded defendant failed to establish a prima facie case for 

ineffective assistance of counsel to warrant an evidentiary hearing.
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On appeal, defendant raises the following points:

POINT I – THE PCR COURT ERRED IN 

DETERMINING DEFENDANT'S PETITION FOR 

POST-CONVICTION RELIEF WAS TIME-BARRED 

AS EXCUSABLE NEGLECT OR EXCEPTIONAL 

CIRCUMSTANCE WAS APPLICABLE PURSUANT 

TO [RULE] 3:22-12(a)(1) BECAUSE NEITHER THE 

COURT NOR TRIAL COUNSEL INFORMED THE 

DEFENDANT OF THE FIVE-YEAR TIME LIMIT.

POINT II – THE PCR COURT ERRED IN 

DETERMINING DEFENDANT'S PETITION WAS 

PROCEDURALLY-BARRED SINCE HE DID NOT 

RAISE AN INEFFECTIVE ASSISTANCE OF 

COUNSEL CLAIM ON DIRECT APPEAL.

POINT III – THE PCR COURT ERRED IN 

DETERMINING THE DEFENDANT DID NOT 

ESTABLISH A PRIMA FACIE CASE OF 

INEFFECTIVE ASSISTANCE OF COUNSEL. 

I.

"Our standard of review is necessarily deferential to a PCR court's factual 

findings based on its review of live witness testimony. In such circumstances 

we will uphold the PCR court's findings that are supported by sufficient credible 

evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013). However, 

"where . . . no evidentiary hearing was conducted, we may review the factual 

inferences the court has drawn from the documentary record de novo." State v. 
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Blake 444 N.J. Super. 285, 294 (App. Div. 2016) (citing State v. Harris, 181 

N.J. 391, 420-21 (2004)). 

After reviewing the record in light of the applicable legal standards, we 

conclude defendant's arguments are uniformly without merit, and we affirm 

substantially for the reasons stated in Judge Ryan's written opinion. R. 2:11-

3(e)(2).

Affirmed.