SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3708- 21 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. ABDUL WILLIAMS, a/k/a EUGENE TUTLER, ABDUL M. WILLIAMS, and AKBAR WILLIAMS, Defendant-Appellant.

Submitted November 27, 2023

– Decided December 1, 2023 Before Judges Sabatino and Mawla. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No s. 95- 07 -2473, 99

- 08 -2789, and 99

- 08 -2790. Joseph E. Krakora, Public Defender, attorney for appellant (Anderson David Harkov, Designated Counsel, on the brief). Theodore N. Stephens, II, Acting Essex County Prosecutor, attorney for respondent (Hannah Faye Ku rt,

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3708

- 21 Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Abdul Williams appeals the trial court's denial without an evidentiary hearing of his petition for post -conviction relief (" PCR ") . We affirm. Defendant's petition stems from a plea agreement he entered into twenty years ago in February 2003. Through that agreement , defendant pled guilty to a fourth-degree offense of possession of prohibitiv e devices, specifically d um dum bullets

. Two other counts in the indictment were dismissed. Consistent with the plea agreement, defendant was s entenced in April
2003 to a custodial term of eighteen months, concurrent to his sentences on charges in two unrelated indictments. The eighteen -month term was satisfied by time served. Fourteen years later in 2017, federal authorities a rrested defendant and charged him with a federal firearms offense. He wa s convicted of that federal charge. Under the federal sentencing guidelines, d efendant's 2003 state court conviction on the bullets possession offense increa sed his federal sentencing exposure. He consequently received a ninety- two -month federal prison

sentence.3 A- 3708

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In his PCR petition filed in 2021

— eighteen years after his 2003 sentencing

— defendant claims his trial counsel was ineffective in not advising him that his sentencing exposure on a future federa l charge would be higher because of his guilty plea. Defendant further asserted his former attorney was ineffective in failing to move to dismiss the indic tment, which had been issued eight years before his plea hearing. He also alleg ed his attorney ignored his claims of innocence and coerced him to accept the S tate's plea offer.
A ft er considering the parties' submissions and oral ar gument, the PCR judge issued an oral decision on June 22, 2022, den ying defendant's petition. The PCR judge concluded the petition was time barre d and, furthermore, lacked merit. This appeal ensued. In his brief on appeal, defendant presents the foll owing points:
POINT I THE PCR COURT ERRED WHEN IT FAILED TO

GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT'S CONTENTION THAT PLEA COUNSEL FAILED TO EXPLAIN THE FUTURE RAMIFICATIONS OF HIS PLEA AGREEMENT, WAS NOT CONTRADICTED BY THE RECORD BELOW AND WAS NOT REFUTED BY THE STATE.4 A- 3708

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POINT II THE TIME BAR OF [R ULE ] 3:22 -12 SHOULD NOT

HAVE BEEN APPLIED TO DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF BECAUSE DEFENDANT WAS NEVER INFORMEDOF HIS RIGHT TO FILE A PETITION FOR POSTCONVICTION RELIEF AND HE DID NOT KNOW HIS GUILTY PLEA IN THIS CASE WOULD RESULT IN A SENTENCE ENHANCEMENT IN FEDERAL COURT. POINT III THE FAILURE OF TRIAL COUNSEL TO ADVISE

DEFENDANT THAT HIS GUILTY PLEA AND SUBSEQUENT CONVICTION IN STATE COURT, WOULD RESULT IN THE ENHANCEMENT OF ANY SENTENCE HE WOULD RECEIVE IN FEDERAL COURT, DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL. Having considered these arguments, we concur with the PCR court that defendant's petition was both procedurally barred a s untimely and devoid of merit. We affirm, substantially for the reasons se t forth in the court's oral decision. We add only a few brief comments. Rule 3:22

- 12 (a)(1) plainly states that "no [PCR] petition shall b e filed . .

. more than [five] years after the date of entry . . . of the judgment of conviction that is being challenged." Here, defendant's judgm ent of conviction was entered

on April 24, 2003, thereby requiring his PCR petition to be filed on or before5 A- 3708

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April 24, 2008. As we noted, defendant's petition was not filed until 202 1, more tha n twelve years after th at five-year deadline had passed. As the PCR court correctly recognized, none of the e xceptions to the fiveyear time bar set forth in Rule 3:22 -12(a)(1)(A) and (B) can salvage defendant's late petition. In particular, the PCR court reason ably rejected defendant's contention that his lateness is justified by excusa ble neglect under Rule 3:22

- 12(a)(1)(A). Defendant claims that he was not awar e of his state post-conviction rights until he arrived in federal prison in 2017. Even if that assertion were true, defendant's ignorance of the applicable deadline do es not comprise excusable neglect. A defendant's lack of sophistication in t he law does not establish excusable neglect. State v. Murray, 162 N.J. 240, 246 (2000) (citing State v. Mitchell , 126 N.J. 565, 580 (1992)). Moreover, the burden to justify a late filing of a PCR petition increases with the length of the delay, which in this case is over twelve years. State v. Milne, 178 N.J. 486, 492 (2004)

. In addition, to meet this exception to the five-yea r deadline under the Rule , defendant must also demonstrate that enforcing the time bar would "result
in a fundamental injustice." R. 3:22

- 12( a)(1)(A). For the reasons we will discuss next concerning the merits, no such injusti ce would be caused by rejecting defendant's untimely petition.6 A- 3708

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Turning to the substance of defendant's claims of i neffective counsel, we apply well settled principles. In reviewing such c laims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland v. Washington, 466 U.S. 668, 690 (1984). The two-part Strickland test requires defendants to prove (1) deficient per formance by their former counsel ; and (2) resultant actual prejudice. Id. at 687; see also State v. Fritz , 105 N.J. 42, 54 (1987). In the present context in which a defendant is alleging the ineffectiveness of plea counsel, the defendant must show a "reasonable probability" that the result would have been differ ent had the defendant received proper advice from the trial attorney. Lafler v. C ooper, 566 U.S. 156, 162-6 3 (2012); Missouri v. Frye, 566 U.S. 134 (2012). Defendant's contentions of ineffectiveness fail to meet these requirements. His contention that his attorney should have moved to dismiss the indictment because of the time lag from his arrest in 1995 to his plea in 2003 is unavailing. It is pure speculation that the court would have gr anted such a dismissal. Likewise, defendant's argument that his attorney sh ould have forecast that he would be sentenced more harshly if he committed a federal offense at some future time, does not amount to deficient performan ce. This court rejected a7 A- 3708

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similar claim in State v. Wilkerson, 321 N.J. Super . 219, 227 (App. Div. 1999), in which we held that "[t]here is no const itutional requirement" for counsel to advise a defendant pleading guilty to a current cha rge of the "possible or even potential enhancement consequences of future aberra nt conduct." Finally, defendant's claim that his former counsel coerced him to plead guilty is belied by the transcript of the plea he aring, during which defendant stated under oath that his attorney had reviewed th e plea agreement with him, that he was satisfied with the attorney's services, and that he was pleading guilty voluntarily.
No plenary hearing was required before the PCR court because defendant's arguments do not present a prima facie case for relief. State v. Preciose , 129 N.J. 451, 462-63 (1992). Affirmed.