RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4696-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES KERSHAW,

Defendant-Appellant.

______________________________

Submitted August 21, 2018 – Decided

Before Judges Sumners and Gilson.

On appeal from Superior Court of New Jersey, Law 

Division, Camden County, Indictment No. 06-06-2109.

Joseph E. Krakora, Public Defender, attorney for 

appellant (William Welaj, Designated Counsel, 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NOT FOR PUBLICATION WITHOUT THE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.

September 11, 2018
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Defendant appeals from a May 25, 2017 order denying his first petition 

for post-conviction relief (PCR), alleging inadequate assistance of counsel, as 

time-barred and without an evidentiary hearing. He argues that his petition was 

not time barred, and that he should have had an evidentiary hearing because he 

proved a prima facie case of ineffective assistance of counsel.

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). Upon pleading guilty to third-degree endangering the welfare of a child, 

the sexual assault charge was dismissed. In his executed plea agreement, 

defendant stated he understood that a special sentence of parole supervision for 

life (PSL) would also be imposed. On February 16, 2007, he was sentenced in 

accordance with the terms of the plea agreement. 

Over eight years after his conviction, on June 22, 2015, defendant filed 

for PCR alleging that his counsel provided inadequate assistance for failing to 

investigate the defense of diminished capacity to the sexual assault charge. He 

contended that a little over a month before the sexual assault incident, he had 

been released from a month-long hospital stay due to injuries he received from 

being struck by a motor vehicle while riding his bike. In support, defendant 

submitted medical records detailing his injuries. He also claimed that his guilty 
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plea should have been withdrawn because his diminished capacity rendered him 

unable to understand the consequences of his plea, and that counsel failed to 

advise him that PSL would be imposed as part of his sentence and his rights to 

file an appeal or PCR petition. Defendant argued that excusable neglect existed 

for late filing because counsel did not advise him of his PCR rights and that a 

fundamental injustice could occur if his petition was time barred. 

The PCR judge denied defendant's petition without granting an 

evidentiary hearing; finding that it was barred because it was not filed within 

five years after his conviction as required by Rule 3:22-12(a)(1). The judge held 

that defendant did not establish excusable neglect because his delay was based 

on his ignorance of the law and failure to pursue his legal rights. Nevertheless, 

the judge addressed the merits of defendant's claim that counsel was ineffective 

because he failed to investigate the defense of diminished capacity. In short, the 

judge found that the diminished capacity argument was a bald assertion. He 

determined that the medical records defendant submitted did not establish a 

cognitive impairment from his accident to support a diminished capacity defense 

or the contention that he was unable to understand the plea and sentencing 

proceedings. The judge further found that, among other reasons, the insufficient 

diminished capacity argument served as a basis to reject defendant's contention 
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that he should be allowed to withdraw his guilty plea under State v. Slater, 198 

N.J. 145 (2009).

We agree with the judge's findings that defendant's petition is time-barred 

under Rule 3:22-12(a)(1). The rule provides that a first PCR petition cannot be 

filed more than five years after the date of entry of the judgment of conviction 

"unless it 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. 3:22-12(a)(1)(A) (emphasis 

added). Defendant's ignorance of the law does not establish excusable neglect. 

State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div. 1998) (mistaken 

understanding of law did not constitute excusable neglect); see also State v. 

Cummings, 321 N.J. Super. 154, 166-67 (App. Div. 1999) (difficulty reading 

and writing and defendant's ignorance of law did not excuse late filing). Since 

defendant has not established neglect, we need not consider whether he showed 

that there was a reasonable probability of a fundamental injustice. R. 3:22-

12(a)(1)(A). 

Turning to the merits of defendant's petition, we also agree with the judge 

that defendant did not establish a prima facie claim of inadequate assistance of 
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counsel and was therefore not entitled to an evidentiary hearing to prove his 

claim. 

To establish a prima facie claim of ineffective assistance of counsel, the 

defendant must show that: (1) counsel's performance was deficient; and (2) the 

deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 

(1984); State v. Fritz, 105 N.J. 42, 58 (1987). A court reviewing a PCR petition 

based on claims of ineffective assistance has the discretion to grant an 

evidentiary hearing only if a defendant establishes a prima facie showing in 

support of the requested relief. State v. Preciose, 129 N.J. 451, 462-63 (1992). 

The mere raising of a claim for PCR does not entitle the defendant to an 

evidentiary hearing. Cummings, 321 N.J. Super. at 170. When determining 

whether to grant an evidentiary hearing, the PCR court must consider the facts 

in the light most favorable to the defendant to determine if a defendant has 

established a prima facie claim. Preciose, 129 N.J. at 462-63. A hearing should 

be conducted only if there are disputed issues as to material facts regarding 

entitlement to PCR that cannot be resolved based on the existing record. State 

v. Porter, 216 N.J. 343, 354 (2013). 

"[I]n order to establish a prima facie claim, a petitioner must do more than 

make bald assertions that he was denied the effective assistance of counsel. He 
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must allege facts sufficient to demonstrate counsel's alleged substandard 

performance." Cummings, 321 N.J. Super. at 170. When claiming defense 

counsel inadequately investigated, the defendant "must assert the facts that an 

investigation would have revealed, supported by affidavits or certifications 

based upon the personal knowledge of the affiant or the person making the 

certification." Ibid. (citing R. 1:6-6). 

In a PCR arising from a guilty plea, a petitioner must "show[] 'a reasonable 

probability that, but for counsel's errors, he would not have pleaded guilty and 

would have insisted on going to trial.'" State v. O'Donnell, 435 N.J. Super. 351, 

369-70 (App. Div. 2014) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). 

Moreover, "[t]he failure to raise unsuccessful legal arguments does not 

constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596, 

625 (1990) (citing Strickland, 466 U.S. at 688).

Applying these principles, defendant fell short of presenting a prima facie 

case of ineffective assistance of counsel. His bald allegations of diminished 

capacity through his submission of medical records fails to establish any 

competent evidence that he had a cognitive impairment that prevented him from 

having the mens rea to commit sexual assault or the ability to comprehend the 

guilty plea or sentencing proceedings. And because defendant has not shown a 
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prima facie claim of ineffective assistance, the decision not to afford defendant 

an evidentiary hearing was correct.

Affirmed.