RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3508-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES R. SMITH,

Defendant-Appellant.

________________________

Submitted February 25, 2020 – Decided April 28, 2020

Before Judges Yannotti and Hoffman.

On appeal from the Superior Court of New Jersey, Law 

Division, Cape May County, Indictment No. 02-07-

0494.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Monique D. Moyse, Designated Counsel, on 

the brief).

Jeffrey H. Sutherland, Cape May County Prosecutor, 

attorney for respondent (Gretchen A. Pickering, Senior 

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NOT FOR PUBLICATION WITHOUT THE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.
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A-3508-17T4

Defendant James R. Smith appeals from the Law Division order denying 

his petition for post-conviction relief (PCR). We affirm because defendant's 

petition is time-barred under Rule 3:22-12(a)(1) and otherwise lacks merit. 

I.

We briefly summarize the relevant facts on appeal, which we set forth at 

length in our opinion on defendant's direct appeal. State v. Smith, Docket No. 

A-1382-02 (App. Div. Oct. 5, 2004) (slip op. at 30). On August 7, 2002, 

defendant abducted two teenagers at knifepoint, T.R. and D.W.,

1

from the Ocean 

City boardwalk. Defendant led the two victims to a deserted area near the water, 

where he bound T.R. and forced D.W. to perform oral sex upon him. Defendant 

then drove D.W. from Ocean City to wooded areas in Cape May and Cumberland 

Counties, where he repeatedly sexually assaulted her. Afterward, defendant left 

D.W. tied to a tree. Eventually, D.W. freed herself and found her way back to 

the road. She flagged down a passing motorist, who brought her to the Port 

Norris State Police barracks. 

D.W. was able to provide the State Police with an accurate description of 

defendant, his car, and the license plate number of the car. Within two days, 

 

1

 We use initials for the victims pursuant to R. 1:38-3(c)(12).
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investigators located defendant in Pennsauken and placed him under arrest. 

After waiving his Miranda2rights, defendant provided an initial statement, 

claiming his encounters with T.R. and D.W. were consensual. Later that day, 

after an investigator with the Cape May County Prosecutor's Office (CMCPO)

questioned him about inconsistencies in his statement, defendant told the 

investigator to "get the tape-recorder," because he was ready to tell the truth. 

Defendant then provided a confession in a recorded statement.

On February 27, 2001, a Cape May County Grand Jury returned 

indictment number 01-02-0129 charging defendant with one count of firstdegree attempted murder, N.J.S.A. 2C:5-1, 2C:11-3(a), two counts of firstdegree kidnapping, N.J.S.A. 2C:13-1(b), four counts of aggravated sexual 

assault, N.J.S.A. 2C:14-2(a), two counts of third-degree terroristic threats, 

N.J.S.A. 2C:12-3(b), one count of fourth-degree unlawful possession of a 

weapon, N.J.S.A. 2C:39-5(d), and two counts of third-degree possession of a 

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d).

On March 15, 2001, pursuant to a plea agreement, defendant pleaded

guilty to two counts of first-degree kidnapping and two counts of aggravated 

 

2

 Miranda v. Arizona, 384 U.S. 436 (1966)
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sexual assault. Under the agreement, the State recommended an aggregate fortyyear sentence, with a minimum of thirty-four years without parole.

In August 2001, defendant unsuccessfully moved to withdraw his guilty 

plea. The court then sentenced defendant in accordance with the plea agreement, 

imposing a forty-year sentence, with a thirty-four-year period of parole 

ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-

7.2.

On December 21, 2001, defendant filed a PCR petition. Less than three 

weeks later, on January 7, 2002, defendant appealed his conviction and sentence. 

On February 7, 2002, defendant withdrew his initial PCR petition due to his

pending direct appeal. 

In late December 2001, while confined in Trenton State Prison, defendant 

sent Diane a pornographic picture and a terrorizing letter threatening to kill her. 

A forensic document examiner opined that defendant wrote the letter. 

On February 13, 2002, the State filed a motion to withdraw from 

defendant's plea agreement. The Law Division granted the motion and vacated 

defendant's conviction and guilty plea. We dismissed defendant's appeal as 

moot. 
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On February 26, 2002, a Cape May County grand jury returned indictment 

number 02-02-0163 charging defendant with one count of terroristic threats, 

N.J.S.A. 2C:12-3(b), and one count of witness tampering, N.J.S.A. 2C:28-5(a). 

On July 30, 2002, the grand jury returned a superseding indictment, number 02-

07-00494, combining defendant's charges from indictment number 01-02-00129 

and indictment number 02-02-0163.

On August 13, 2002, a jury found defendant guilty of two counts of firstdegree kidnapping, four counts of first-degree aggravated sexual assault, three 

counts of third-degree terroristic threats, two counts of possession of a knife for 

an unlawful purpose, and one count of fourth-degree unlawful possession of a 

knife. The court sentenced defendant to an aggregate term of 105 years, with a 

lengthy period of parole ineligibility. The trial court entered defendant's 

judgment of conviction (JOC) on August 22, 2002.

Defendant appealed his conviction and sentence, raising the following 

arguments:

POINT I

DEFENDANT, [J.S.], CONVICTION MUST BE 

REVERSED SINCE THE TRIAL [COURT] ERRED 

IN DENYING DEFENDANT'S MOTION TO 

SUPPRESS HIS STATEMENT DEPRIVING 

DEFENDANT OF HIS DUE PROCESS RIGHT TO A 
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FAIR TRIAL (U.S. CONST. AMEND., XIV; N.J. 

CONST. OF 1947, ART. I, 9, 10) (RAISED BELOW).

POINT II

THE DEFENDANT'S CONVICTION MUST BE 

REVERSED SINCE DEFENDANT WAS DENIED 

EFFECTIVE ASSISTANCE OF COUNSEL, 

PURSUANT TO U.S. CONSTITUTION, AMEND. VI.

POINT III

DEFENDANT'S CONVICTIONS ON COUNTS FIVE 

AND SIX AND/OR ON COUNTS NINE AND TEN 

MUST BE REVERSED SINCE THE 

[SUPERSEDING] INDICTMENT WAS 

INSUFFICIENT TO DETERMINE THE CRIME FOR 

WHICH THE JURY CONVICTED THE 

DEFENDANT, AND/OR ALTERNATIVELY THE 

TRIAL COURT ERRED IN DENYING 

DEFENDANT'S MOTION TO DISMISS COUNTS 

FIVE OR SIX AT THE END OF THE STATE'S CASE 

BASED UPON THE ABOVE ARGUMENT AND 

FAILURE TO PROVIDE THE [SUPERSEDING] 

INDICTMENT UNTIL THE DAY OF TRIAL.

POINT IV

DEFENDANT, [J.S.], CONVICTION SHOULD BE 

REVERSED SINCE THE TRIAL COURT'S CHARGE 

WAS INCORRECT, INADEQUATE AND 

CONFUSING THEREBY DEPRIVING DEFENDANT 

OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL 

(U.S. CONST. AMEND. XIV; N.J. CONST. OF 1947, 

ART. I, 9, 10).
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POINT V

DEFENDANT'S CONVICTION MUST BE 

REVERSED, SINCE THE TRIAL COURT ABUSED 

ITS DISCRETION IN TRANSPORTING THE JURY 

TO VIEW ONE OF THE SCENES OF THE ALLEGED 

CRIMES AND FAILING TO CHARGE THE JURY 

THAT WHAT THEY OBSERVED ON THE 

VIEWING WAS NOT EVIDENCE, BUT AN AID TO 

UNDERSTANDING EVIDENCE, AND BY 

DENYING THE DEFENSE REQUEST TO VIEW 

THE OTHER SCENES TO PUT THE VIEWING IN 

CONTEXT.

POINT VI

A. THE TRIAL COURT ERRED IN DENYING 

DEFENDANT'S MOTION TO DISMISS COUNT 

[THIRTEEN] AT THE END OF THE STATE'S CASE 

SINCE THE STATE FAILED TO DEMONSTRATE 

AN IMMEDIATE THREAT AND THE COURT 

FAILED TO CHARGE THE JURY ON THE LESSER 

INCLUDED OFFENSE OF HARASSMENT 

PURSUANT TO [N.J.S.A.] 2C:33-4.

B. IF IT WAS PROPER TO SUBMIT THE CHARGE 

CONTAINED IN COUNT THIRTEEN TO THE 

JURY, DEFENSE COUNSEL SHOULD HAVE 

REQUESTED, OR THE COURT SHOULD HAVE 

SUA SPONTE CHARGED THE LESSER INCLUDED 

OFFENSE OF HARASSMENT PURSUANT TO 

[N.J.S.A.] 2C:33-4.

POINT VII

THE MATTER MUST BE REMANDED TO THE 

SENTENCING COURT FOR CLARIFICATION 

REGARDING THE SENTENCE IMPOSED.
8

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POINT VIII

THE SENTENCE IMPOSED ON DEFENDANT IS 

EXCESSIVE.

We rejected these arguments and affirmed defendant's convictions and the 

sentences imposed. We did, however, remand the matter to the trial court to 

clarify the JOC regarding periods of parole ineligibility. State v. Smith, Docket 

No. A-1382-02 (App. Div. Oct. 5, 2004) (slip op. at 30). Defendant also raised

ineffective assistance of counsel arguments in his initial appeal; however, we 

found the record insufficient to address these arguments. We therefore denied 

the arguments "without prejudice to defendant . . . rais[ing] these arguments in 

a [PCR] application." Id. at 17.

On March 7, 2005, defendant filed a pro se petition for PCR. His petition 

asserted numerous claims relating to pre-trial and trial publicity and ineffective 

assistance of counsel. On April 24, 2006, the PCR court entered an order stating

"the petition for [PCR] is withdrawn with prejudice."

On January 6, 2010, defendant sent a letter to the CMCPO. In the letter, 

defendant essentially requested all documents concerning the superseding 

indictment against him, citing the Open Public Records Act3(OPRA) as the basis 

 

3

 N.J.S.A. 47-1A-1 to 13.
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for his request. On January 13, 2010, the CMCPO responded that the 

information requested had already been provided to his counsel or was not 

available. 

On March 16, 2010, defendant filed a petition for writ of habeas corpus 

with the United States District Court for the District of New Jersey. On October 

6, 2010, the District Court dismissed defendant's petition as time barred. The 

Supreme Court of the United States denied certiorari on January 9, 2012. 

On December 20, 2013, defendant filed another pro se petition for PCR, 

again alleging that he was denied effective assistance of counsel. Defendant 

also asserted the trial court erred in various respects and accused the State of 

withholding certain exculpatory evidence. Defendant sought an evidentiary 

hearing on his petition. On July 25, 2014, the PCR court entered an order 

denying the petition. The order stated that the petition was defendant's "second 

or subsequent petition." The order also stated that the petition was denied based 

on the court's April 24, 2006 order, which stated that defendant's first PCR 

petition had been withdrawn with prejudice.

Defendant appealed and raised the following single argument:

THE JUDGE BELOW ERRED IN DISMISSING THE 

DEFENDANT'S MOTION FOR POST-CONVICTION 

RELIEF, AS IT WAS DEFENDANT'S FIRST POSTCONVICTION RELIEF MOTION, HIS 
10 A-3508-17T4

PREVIOUSLY FILED MOTION HAVING BEEN 

WITHDRAWN WITH PREJUDICE WITHOUT 

BEING HEARD ON THE MERITS AS REQUIRED 

BY COURT RULES AND LEGAL PRECEDENT.

We reversed and remanded, concluding the PCR court erred by treating 

the December 20, 2013 petition as "a second or subsequent petition" under Rule

3:22-4(b). We concluded the court mistakenly relied on the fact the order 

withdrawing defendant's March 7, 2005 PCR petition stated it was withdrawn 

"with prejudice," even though the court never ruled on the merits of defendant's 

claims. State v. Smith, Docket No. A-5937-13 (App. Div. Jan. 9, 2017) (slip op. 

at 8). 

In addition, we provided the PCR court with the following instructions:

On remand, the PCR court shall appoint counsel to 

represent defendant, R. 3:22-6(a), and shall afford 

counsel time in which to file an amended petition. The 

amended petition must include facts showing that 

defendant's failure to file a timely petition was due to 

"excusable neglect." The amended petition must also 

address whether, if defendant's factual claims are found 

to be true enforcement of the time[-]bar "would result 

in a fundamental injustice." The PCR court will then 

determine whether the time[-]bar should be enforced 

and, if not, the court should address the merits of 

defendant's claims.

[Id. at 9]

Accordingly, defendant's PCR counsel filed a brief contending the PCR 

court should relax the time-bar under the circumstances. On October 20, 2017, 
11 A-3508-17T4

defendant filed a motion with the PCR court requesting the court to compel 

production of PCR discovery from the CMCPO. In the motion, defendant sought 

the same documents he previously requested in his OPRA request. 

On December 6, 2017, defendant appeared with PCR counsel before Judge 

John C. Porto, who heard oral argument on defendant's petition and motion. On 

January 30, 2018, Judge Porto denied defendant's petition as time-barred. 

Defendant now appeals, raising the following point of argument:

POINT ONE

THE PCR COURT ERRONEOUSLY RULED 

THAT [J.S.] PETITION WAS TIME[-]BARRED 

BECAUSE ANY DELAY IN FILING THE 

PETITION WAS DUE TO DEFENDANT'S 

EXUSABLE NEGLECT AND THERE IS A 

REASONABLE PROBABLITY THAT IF THE 

DEFENDANT'S FACTUAL ASSERTIONS 

WERE FOUND TO BE TRUE, 

ENFORCEMENT OF THE TIME BAR WOULD 

RESULT IN A FUNDAMENTAL INJUSTICE.

II.

After considering the record and the briefs, we conclude defendant's 

argument lacks substantive merit. We affirm substantially for the reasons stated 

by Judge Porto in his cogent oral opinion. We add the following comments.

Our court rules preclude PCR petitions filed more than five years after 

entry of a judgment of conviction unless the delay was "due to defendant's 
12 A-3508-17T4

excusable neglect and . . . 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. 3:22-12(a)(1)(A). Our Supreme Court has 

stated that "[t]he time bar should be relaxed only 'under exceptional 

circumstances' because '[a]s time passes, justice becomes more elusive and the 

necessity for preserving finality and certainty of judgments increases.'" State v. 

Goodwin, 173 N.J. 583, 594 (2002) (second alteration in original) (quoting State 

v. Afanador, 151 N.J. 41, 52 (1997)).

To establish "excusable neglect," a defendant must demonstrate "more 

than simply . . . a plausible explanation for a failure to file a timely PCR 

petition." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). Factors 

to be considered include "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." Afanador, 151 

N.J. at 52 (citing State v. Mitchell, 126 N.J. 565, 580 (1992)). Furthermore, 

"[a]bsent compelling, extenuating circumstances, the burden of justifying a 

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

delay." Mitchell, 126 N.J. at 580. 
13 A-3508-17T4

Here, notwithstanding our clear directions, defendant failed to set forth 

facts that show his failure to file a timely petition was due to excusable neglect. 

Judge Porto correctly concluded that the five-year limitation period began to run 

from the date of defendant's JOC and was not stayed by the filing or pendency 

of his direct appeal or federal habeas proceedings. Moreover, defendant 

displayed his ability to pursue claims within the legal system on his own, made 

evident from his numerous appeals, motions, petitions for habeas corpus and a 

writ of certiorari, and three filed PCR petitions.

Excusable neglect requires more than simply providing reasons why a 

petition was filed beyond the five-year window. As Judge Porto explained:

Ultimately against this factual landscape of petitioner's 

case, this [c]ourt rejects the petitioner's contention that 

his petition should not be time[-]barred due to his 

pursuit of relief in other courts. The [c]ourt also rejects 

his argument that the petition should be heard to avoid 

a miscarriage of justice, as he does not even provide a 

scintilla of evidence or reason to support that bald 

conclusion. State law in this regard is very clear that a 

bare allegation is not sufficient to elude the time[-]bar. 

In other words, if the petitioner does not allege 

sufficient facts, the court bars the claim.

In a diligent and deferential search of petitioner's 

petition, this [c]ourt cannot find anywhere where 

[defendant] articulates or explains any fact for which 

this [c]ourt may consider excusable neglect. . . . 

. . . .
14 A-3508-17T4

When he was specifically required to articulate why he 

should not be time[-]barred in this matter, he simply 

provided no fact or facts from which this [c]ourt could 

consider.

Defendant's remaining arguments are based on bald assertions without 

evidential support in the record, and otherwise lack sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.