### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1733- 22 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. BRENNAN DOYLE, Defendant-Appellant.

_______________________

Submitted May 22, 2024

– Decided Ju ly 23, 202 4 Before Judges Currier and Susswein. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 14- 11

- 1995. Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Monique D. Moyse, Designated Counsel, on the brief). Raymond S. Santiago, Monmouth County Prosecutor, attorney for respondent (Lisa Sarnoff Gochman, 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 1733

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Defendant Brennan Doyle appeals a November 15, 2022 Law Division order denying his petition for Post-Conviction Reli ef (PCR) without a hearing. Defendant claims he received ineffective assistance from his plea counsel. After carefully considering the record in view of the gov erning legal principles, we affirm the PCR court's order.
I. We discern the following pertinent facts and proced ural history from the record. In the early morning hours of July 7, 2013 , defendant, then sixteen years old, left his house armed with "about a foot long" knife and went to the victim's residence. Defendant did not know the victim. He stabbed the victim multiple times with the intent to kill her while repeatedly asking her where her car keys were. Defendant took the keys and drove the victim 's car to another town. The victim survived. Defendant was charged as a juvenile with delinquenc y for acts that if committed by an adult would constitute first-degree carjacking, N.J.S.A. 2C:15- 2; first-degree attempted murder, N.J.S.A. 2C:11-3( a)(3) and N.J.S.A. 2C:5- 1; third-degree possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree possession of a weapo n (knife), N.J.S.A. 2C:39-3 A- 1733

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5(d). In June 2014, defendant was transferred to a dult court pursuant to N.J.SA.
2A:4A -26.1. Defendant was subsequently charged by indictment w ith first-degree carjacking, N.J.S.A. 2C:15-2(a) (count one); first- degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count two); third-de gree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three); fourthdegree unlawful possession of a weapon, N.J.S.A. 2C :39-5(d) (count four); third-degree hindering apprehension, N.J.S.A. 2C:29 -3(b) (count five); and fourth-degree obstructing the administration of law or other governmental function, N.J.S.A. 2C:29-1 (count six). On August 27, 2015, defendant pled guilty to count s one and two pursuant to a plea agreement. In exchange for defendant's g uilty pleas, the State agreed to recommend a sentence of fifteen years in State P rison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The State also agreed to dismiss the remaining counts of the indictment. On October 29, 2015, defendant was sentenced in ac cordance with the plea agreement to two concurrent fifteen-year terms of imprisonment subject to NERA. On April 5, 2016, we affirmed the sentences on a sentencing calendar.4 A- 1733

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On December 5, 2016, the Supreme Court denied defen dant's petition for certification. State v. Doyle, 228 N.J. 425 (2016)

. In December 2020, defendant filed a pro se petition for PCR. He subsequently filed an amended petition and two cert ifications. Counsel submitted a brief and appendix in support of defend ant's petition. On November 15, 2022, the PCR court held a non-evi dentiary hearing after which it denied defendant's PCR petition on p rocedural and substantive grounds, rendering an oral decision. This appeal f ollows. Defendant raises the following contentions for our consideration:
POINT I [DEFENDANT] IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIMS THAT COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY PRECLUDING THE OPPORTUNITY TO ARGUE FOR REHABILITATION AND BY FAILING TO ADVOCATE ADEQUATELY AT SENTENCING. POINT II THE PCR COURT ERRONEOUSLY RULED THAT [DEFENDANT'S] PETITION WAS TIME-BARRED BECAUSE ANY DELAY IN FILING THE PETITION WAS DUE TO THE DEFENDANT'S EXCUSABLE NEGLECT AND THERE IS A REASONABLE PROBABILITY THAT IF THE DEFENDANT'S FACTUAL ASSERTIONS WERE FOUND TO BE TRUE, ENFORCEMENT OF THE TIME BAR5 A- 1733

- 22 WOULD RESULT IN A FUNDAMENTAL INJUSTICE. II. We begin our analysis by acknowledging the legal pr inciples governing this appeal. PCR serves the same function as a fed eral writ of habeas corpus. State v. Preciose, 129 N.J. 451, 459 (1992). When p etitioning for PCR, a petitioner must establish, by a preponderance of th e credible evidence, that he is entitled to the requested relief. Ibid. To meet this burden, the petitioner must allege and articulate specific facts, "which, if be lieved, would provide the court with an adequate basis on which to rest its decisio n." State v. Mitchell, 126 N.J. 565, 579 (1992). In addressing an ineffective assistance of counsel claim, New Jersey courts follow the two-part test articulated by the United States Supreme Court
in Strickland v. Washington, 466 U.S. 668, 687 (1984). See State v. Fritz, 105 N.J. 42, 58 (1987). "First, the defendant must sho w that counsel's performance was deficient." State v. Gideon, 244 N.J. 538, 550 (2021) (quoting Strickland , 466 U.S. at 687). "Second, the defendant must have been prejudiced by counsel's deficient performance." Ibid. (quoting S trickland, 466 U.S. at 687). To meet the first prong of the Strickland/Fritz tes t, a defendant must show "that counsel made errors so serious that counsel w as not functioning as the6 A- 1733

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'counsel' guaranteed the defendant by the Sixth Ame ndment." Strickland, 466 U.S. at 687. Reviewing courts indulge in "a strong presumption that counsel's conduct falls within the wide range of reasonable p rofessional assistance. . . ." Id. at 689. "A court evaluating a claim of ineffecti ve assistance of counsel must avoid second-guessing defense counsel's tactical de cisions and viewing those decisions under the 'distorting effects of hindsight .'" State v. Marshall, 148 N.J. 89, 157 (1997) (quoting Strickland, 466 U.S. at 689 ). The second Strickland prong is especially demanding . It requires the defendant show "that counsel's errors were so serio us as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. Put differently, counsel's errors must create a "reason able probability" that the outcome of the proceedings would have been differen t if counsel had not made the errors. Id. at 694. This "is an exacting stan dard." Gideon, 244 N.J. at 551 (quoting State v. Allegro, 193 N.J. 352, 367 (2008) ). "Prejudice is not to be presumed," but must be affirmatively proven by the defendant. Ibid. (citing Fritz, 105 N.J. at 52, and Strickland, 466 U.S. at 693). Short of obtaining immediate relief, a defendant ma y show that an evidentiary hearing is warranted to develop the fac tual record in connection with an ineffective assistance claim. Preciose, 129 N.J . at 462-63. However, "[i]f7 A- 1733

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the court perceives that holding an evidentiary hea ring will not aid the court's analysis of whether the defendant is entitled to [P CR], . . . then an evidentiary hearing need not be granted." Marshall, 148 N.J. a t 158 (citations omitted). A PCR court's decision to proceed without an evidenti ary hearing is reviewed for an abuse of discretion. State v. Vanness, 474 N.J. Super. 609, 623 (App. Div. 2023) (citing State v. Brewster, 429 N.J. Super. 38 7, 401 (App. Div. 2013)). Furthermore, the mere raising of a claim for PCR do es not entitle the defendant to an evidentiary hearing. State v. Cumm ings, 321 N.J. Super. 154, 170 (App. Div. 1999). The PCR court should grant a n evidentiary hearing only when "(1) the defendant establishes a prima facie c ase in support of PCR; (2) the court determines that there are disputed issues of material fact that cannot be resolved by review of the existing record; and ( 3) the court determines that an evidentiary hearing is required to resolve the cla ims asserted." Vanness, 474 N.J. Super. at 623 (citing State v. Porter, 216 N.J . 343, 354 (2013)). With respect to the first of these three requiremen ts, "[a] prima facie case is established when a defendant demonstrates 'a rea sonable likelihood that his or her claim, viewing the facts alleged in the ligh t most favorable to the defendant, will ultimately succeed on the merits.'" Porter, 216 N.J. at 355 (quoting R. 3:22 -10(b)). "[V]ague, conclusory, or speculative" all egations are8 A- 1733

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insufficient to warrant an evidentiary hearing. Ibi d. (quoting Marshall, 148 N.J. at 158). In the context of a PCR petition challenging a guil ty plea based on ineffective assistance of counsel, the second prong is established when the defendant demonstrates a "reasonable probability th at, but for counsel's errors, [the defendant] would not have pled guilty and woul d have insisted on going to trial." State v. Nuñez-Valdez, 200 N.J. 129, 139 ( 2009) (alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994 )); see also State v. McDonald, 211 N.J. 4, 30 (2012). Additionally, the d efendant must establish that a "decision to reject the plea bargain would h ave been rational under the circumstances. " Padilla v. Kentucky, 559 U.S. 356, 372 (2010).
III. We first address defendant's contention "[t]he PCR court's ruling that [defendant's] petition was time-barred was in error and this [c] ourt should consider the merits of [defendant's] petition becau se his delay in filing his petition was due to excusable neglect and because t here is a reasonable probability that if the defendant's factual asserti ons were found to be true, enforcement of the time bar would result in a funda mental injustice." Rule 3:22 -12(a)(1)(A) provides:9 A- 1733

- 22 no petition shall be filed pursuant to this rule mo re than [five] years after the date of entry pursuant to Ru le 3:21 -5 of the judgment of conviction that is being challenged unless: (A) 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 tru e enforcement of the time bar would result in a fundamental injustice. The five-year time limitation runs from the date o f the conviction or sentencing, "whichever the defendant is challenging ." State v. Milne, 178 N.J. 486, 491 (2004) (quoting State v. Goodwin, 173 N.J. 583, 594 (2002))

. The judgment of conviction in this case was entered on November 2, 2015. Thus, defendant had until November 2, 2020 to file his pe tition. He acknowledges he filed after the five-year deadline expired. We thus must consider whether there was excusable ne glect. To establish excusable neglect, a defendant must demonstrate mor e than "a plausible explanation for a failure to file a timely PCR peti tion." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). The circumstances supporting a finding of excusable neglect must be "exceptional," Goodwin , 173 N.J. at 594, and the PCR "petition itself must allege the facts relied o n to support the [excusable neglect] claim." Mitchell, 126 N.J. at 577.10 A- 1733

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Defendant asserts that the circumstances in this case sat isfy the excusable neglect exception because "due to the COVID pandemi c, he was unable to access adequately the [prison] law library." However, New Jersey did not declare a public health emergency due to the pandemic until M arch 9, 2020. Exec. Order
No. 103 (Mar. 9, 2020), 52 N.J.R. 549(a) (Apr. 6, 2020). That means defendant had more than four years prior to the COVID-19 emergency to re search and file his PCR petition. Considering those circumstances, the PCR court conc luded: Although the [c]ourt may use its discretion in waiving the five-year limit due to the pandemic and [defendant's] little to no access to the prison law library, the [c] ourt does find that [defendant's] . . . factual assertions regarding ineffective assistance of coun sel are meritless and therefore, enforcement of the tim e bar would not result in fundamental injustice. We agree that no fundamental injustice would resul t to defendant by enforcing the time bar and that defendant has thus failed to establish excusable neglect for missing the PCR filing deadline. But j ust as the PCR court addressed defendant's contentions on their merits, we too pro ceed to address them substantively notwithstanding they were untimely fi led.11 A- 1733

- 22 IV. We next address defendant 's contention his attorney rendered constitutionally defective assistance by failing to advise him of the consequences that a guilty plea would have on his a bility to argue for rehabilitation. Defendant's argument misconstrues the law governing waiver from juvenile to adult court. The pertinent portion of N.J.S.A. 2A:4A-26 in effec t in 2013 1 provided:

a. On motion of the prosecutor, the court shall, witho ut the consent of the juvenile, waive jurisdiction ove r a case and refer that case from the Superior Court, Chancery Division, Family Part to the appropriate court and prosecuting authority having jurisdiction if it finds, after hearing, that: (1) The juvenile was [fourteen] years of age or older a t the time of the charged delinquent act; and (2) There is probable cause to believe that the juvenil e committed a delinquent act or acts which if committed by an adult would constitute: (a) Criminal homicide other than death by auto, str ict liability for drug induced deaths, pursuant to N.J. S. 2C:35-9, robbery which would constitute a crime of the first degree, carjacking, aggravated sexual assault , sexual assault, aggravated assault which would constitute a crime of the second degree, kidnapping , aggravated arson, or gang criminality pursuant to section 1 of P.L.2007, c. 341 (C.2C:33-29) where th e

1 This statute has since been repealed.12 A- 1733

- 22 underlying crime is enumerated in this subparagraph or promotion of organized street crime pursuant to sec tion 2 of P.L.2007, c. 341 (C.2C:33-30) which would constitute a crime of the first or second degree whi ch is enumerated in this subparagraph; or

. . . e. If the juvenile can show that the probability of his rehabilitation by the use of the procedures, servic es and facilities available to the court prior to the juve nile reaching the age of [nineteen] substantially outwei ghs the reasons for waiver, waiver shall not be granted

. This subsection shall not apply with respect to a juvenile [sixteen] years of age or older who is cha rged with committing any of the acts enumerated in subparagraph (a), (i) or (j) of paragraph (2) of subsection a. of this section or with respect to a violation of N.J.S. 2C:35-3, N.J.S. 2C:35-4 or sect ion 1 of P.L.1998, c. 26 (C. 2C:39-4.1). [(emphasis added).] In this case, defendant was sixteen when he commit ted the attempted murder and carjacking. The record shows there was ample probable cause to believe defendant committed carjacking

— an offense specifically enumerated in N.J.S.A. 2A:4A-26(a)(2)(a). Thus, the provision that allows a juvenile to show that the probability of his or her rehabilitation p rior to reaching the age of nineteen substantially outweighs the reasons for wa iver does not apply. In State v. V.A., 212 N.J. 1, 10 (2012), our Supreme Court m ade clear that "once the State ha[d] established probable cause that a juven ile committed an act13 A- 1733

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equivalent to an enumerated offense, waiver [was] r equired and the juvenile [was] denied the opportunity to present rehabilitat ion evidence." There is nothing defendant's plea counsel could have done to avoid that conclusion. We also agree with the PCR court that counsel's allege d failure to inform defendant that rehabilitation evidence would not be relevant with respect to the waiver decision was

— as the PCR judge aptly described

— "immaterial." Defendant further argues "the PCR court did not con sider that counsel could have made [the ability to argue rehabilitation] a co ndition of his plea, and that [defendant] did not know this was not a condit ion of his plea." This argument once again misconstrues the juvenile waive r law. We reiterate the law in effect did not authorize consideration of defend ant's prospects for rehabilitation because he was charged with first-de gree carjacking. Any subsequent "argument" about rehabilitation would be presented in adult court after the waiver decision had already been made. In these circumstances, defendant has failed to show his ple a counsel was ineffective much less that he has suffered prejudic e under the Strickland/Fritz test. Relatedly, defendant has failed to show tha t he would not have accepted the plea agreement counsel negotiated on his behalf . Defendant faced an14 A- 1733

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aggregate prison term of fifty years in prison, sub ject to NERA. 2 Defendant's negotiated maximum prison term was reduced by more than two thirds. That reduction prompted the sentencing judge to comment that had he been the judge at the plea hearing, "[he] would not have accepted this as a just and fair punishment and would not have accepted this plea." We conclude the "plea offer was so attractive that it would defy logic or reaso n that a defendant would risk a trial. " State v. O'Donnell, 435 N.J. Super. 351, 377 (App. Div. 2014).
V. We turn next to defendant 's contention that his "counsel failed to argue adequately at sentencing, resulting in a higher sen tence than what could have been imposed if counsel had been an effective advoc ate." Specifically, defendant argues counsel failed to adequately argue mitigating factor four ("[t]here were substantial grounds tending to excus e or justify the defendant's conduct, though failing to establish a defense") in light of defendant's "mental health struggles, history of abuse by his father, a nd drug and alcohol abuse." Because of counsel's deficient performance, defenda nt argues, "a wealth of mitigating evidence was not presented." He also st ates that he took mushrooms

2 The judge informed defendant that carjacking is a f irst-degree crime that carries a maximum period in prison of thirty years. He also informed defendant attempted murder carries a maximum term of twenty y ears in prison.15 A- 1733

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"and was hallucinating and paranoid, and took a knife to p rotect himself against his father." Defendant contends that but for couns el's deficient performance, his sentence would have been lower. We disagree. As to mitigating factor four, defenda nt's counsel at sentencing argued:

I would submit there are four mitigating factors. Mitigating [f] actor . . . [four] the defendant was under the influence. It's not enough to rise to the leve l of a defense. We're not submitting that it was. But it certainly is a fact your Honor should consider. Defendant's counsel further explained to the judge that:

The reason why his recollection is hazy, your Honor knows from reviewing this file, is that [defendant] was under the influence of hallucinogenic mushrooms on the night of this attack. We had discussed at leng th whether or not that rose to the level of whether it was a legal defense in this case, whether you can use the defense of intoxication as a way to say to the Stat e that he's not responsible for his actions. We believe t hat did not rise to the level of intoxication. This is by way of explanation, your Honor, not an excuse. Everything I say here now is by way of explanation. The record thus shows that counsel made arguments c oncerning mitigating factor four. At sentencing, defense cou nsel also addressed defendant's history of abuse and mental health stru ggles, arguing:

Certainly there was police involvement at his house

. Your Honor knows from the [presentence report (PSR) ]16 A- 1733

- 22 the type of environment [defendant] grew up in but he had not had a prior record. He was essentially a r egular young man who on the night in question took way too many hallucinogenic mushrooms, and what happened is what you heard. The PSR that defense counsel referred to states def endant "was physically abused by his father over the years, noting that he would blacken his eyes and punch him in the head repeatedly." The PSR also in dicated defendant "was affected by the dysfunction of his upbringing where there was substance abuse, mental illness and domestic violence throughout his childhood." The sentencing judge expressly referred to the arg uments made by defense counsel, stating, "[a]s correctly pointed out by hi s experienced and able attorney, the incidents that involved the police before appea r to have resulted from family circumstances that occur all too frequently in our society today." We add that defense counsel at sentencing successfu lly argued against the application of two aggravating factors urged by the State: factor three, N.J.S.A. 2C:44-1(a)(3) ("[t]he risk that the defendant will commit another offense") and six, N.J.S.A. 2C:44-1(a)(6) ("[t]he extent of the d efendant's prior criminal record and the seriousness of the offenses of which the defendant has been convicted").17 A- 1733

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In sum, we are satisfied that counsel's performance at sentencing was far from ineffective. Moreover, defendant cannot estab lish prejudice under the second prong of the Strickland/Fritz test because n othing counsel could have argued would have led to a sentence more lenient th an the one contemplated in the favorable plea deal counsel negotiated on defen dant's behalf. As we have noted, the sentencing judge commented that he would not have accepted the plea agreement because it was so favorable to defendant. In these circumstances, we conclude defendant has f ailed to establish a basis for an evidentiary hearing much less to vacat e his convictions or reduce the sentence imposed. Affirmed.