RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3594-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

R.K.V.,

Defendant-Appellant.

____________________________

Submitted October 4, 2018 – Decided

Before Judges O'Connor and Whipple.

On appeal from Superior Court of New Jersey, Law 

Division, Cape May County, Indictment No. 03-04-

0222.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Alison S. Perrone, Designated Counsel, on 

the brief).

Jeffrey H. Sutherland, Cape May County Prosecutor, 

attorney for respondent (Gretchen A. Pickering, 

Assistant Prosecutor, of counsel and 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NOT FOR PUBLICATION WITHOUT THE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.

October 30, 2018
A-3594-16T4

2

PER CURIAM

Defendant R.K.V.1appeals from the dismissal of his petition for postconviction relief (PCR) without an evidentiary hearing. For the reasons that 

follow, we affirm.

I

On October 23, 2003, a jury convicted defendant of seven counts of 

first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); four counts of 

second-degree sexual assault, N.J.S.A. 2C:14-2(b); one count of second-degree 

sexual assault, N.J.S.A. 2C:14-2(c); and nine counts of second-degree 

endangering the welfare of a minor, N.J.S.A. 2C:24-4(a). On January 23, 

2004, defendant was sentenced in the aggregate to a sixty-seven year term of 

imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-

7.2. 

Defendant filed a direct appeal. We affirmed his convictions; however,

because NERA did not apply to some of the convictions, we vacated the 

NERA component of the sentence and remanded the matter for resentencing. 

See State v. R.K.V., No. A-3575-03 (App. Div. Dec. 22, 2005). On April 6, 

2006, the trial court sentenced defendant, in the aggregate, to a sixty-seven

 

1

 We use initials to protect the victim’s privacy. 
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3

year term of imprisonment, and imposed a twenty-three year period of parole 

ineligibility. Defendant filed a direct appeal of his sentence; on September 21, 

2010, defendant's sentence was affirmed by our excessive sentencing oral 

argument panel, see Rule 2:9-11. On September 9, 2011, the Supreme Court 

denied defendant's petition for certification. State v. Venzie, 208 N.J. 336 

(2011).

In December 21, 2011, defendant filed a petition for writ of habeas 

corpus in the United States District Court for the District of New Jersey; that 

petition was dismissed without prejudice on February 3, 2012. Defendant filed 

an amended petition. On March 7, 2013, the District Court dismissed that 

petition with prejudice and denied defendant's request for a certificate of 

appealability.

Defendant appealed and, on August 14, 2013, the United States Court of 

Appeals for the Third Circuit denied defendant's request for a certificate of 

appealability and, on October 9, 2013, denied his petition for a rehearing en 

banc. On February 24, 2014, the United States Supreme Court denied 

defendant's application for certiorari, and on May 5, 2014, his petition for a 

rehearing was denied.
A-3594-16T4

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On February 12, 2016, defendant filed his first petition for PCR. The 

issues defendant raised before the PCR court relevant to those on appeal are: 

the appeals of his convictions and sentence tolled the time bar imposed in Rule

3:22-12(a)(1); his ignorance of the law constituted excusable neglect, see Rule

3:22-12(a)(1)(A); and enforcement of the time bar would result in a 

fundamental injustice because trial counsel failed to seek the recusal of the 

judge who presided over his suppression hearing, during which he challenged 

the admissibility of certain statements he had made to the police.

2

As for the latter allegation, defendant claimed the judge had a conflict of 

interest because, when she sat in the Family Part, she presided over an

adoption hearing in which she granted defendant's application to adopt the 

victim, who had been a foster child in his home. Defendant argued that, 

during the suppression hearing, the judge may have felt responsible for 

permitting defendant to adopt the victim and, thus, was motivated to rule 

against him at the suppression hearing to assuage her remorse. It is not known 

when the adoption hearing was conducted or even if it was contested.

On November 15, 2016, the PCR court entered an order denying 

defendant's request for post-conviction relief. The court found defendant's 

 

2

 The judge who presided over the suppression hearing did not preside over 

the trial. 
A-3594-16T4

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petition time barred under Rule 3:22-12(a)(1), rejecting defendant's argument 

the delay in filing his petition was due to excusable neglect and there was a 

reasonable probability that, if his factual assertions were found to be true,

enforcement of the time bar would result in a fundamental injustice. See Rule

3:22-12(a)(1)(A).

On the issue of fundamental injustice, the PCR court found there was no 

basis to conclude the judge who presided over the suppression hearing was 

predisposed or motivated to rule against defendant merely because she handled 

the adoption hearing. The PCR court also noted defendant could have but did 

not raise the question of the judge's alleged partiality on direct appeal, 

although he otherwise challenged her ruling on his suppression motion. As 

previously stated, we affirmed defendant's convictions on appeal.

II

On appeal, defendant presents the following point for our consideration.

POINT I: THE PCR COURT ERRED IN 

DISMISSING DEFENDANT'S PETITION FOR 

POST-CONVICTION RELIEF AS TIME BARRED 

BECAUSE DEFENDANT'S FAILURE TO FILE HIS 

PETITION WITHIN FIVE YEARS OF HIS 

CONVICTION WAS DUE TO EXCUSABLE 

NEGLECT AND ENFORCEMENT OF THE TIME 

BAR WOULD RESULT IN A FUNDAMENTAL 

INJUSTICE.
A-3594-16T4

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Defendant's specific arguments are those which he asserted before the PCR 

court. 

To establish an ineffective assistance of counsel claim, a defendant must 

satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 

668, 687 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 

42, 58 (1987). First, a defendant must show "that counsel made errors so 

serious that counsel was not functioning as the 'counsel' guaranteed . . . by the 

Sixth Amendment." Id. at 52 (quoting Strickland, 466 U.S. at 687).

To satisfy prong one, [a defendant] ha[s] to overcome 

a strong presumption that counsel exercised 

reasonable professional judgment and sound trial 

strategy in fulfilling his responsibilities. [I]f counsel 

makes a thorough investigation of the law and facts 

and considers all likely options, counsel's trial strategy 

is virtually unchallengeable. Mere dissatisfaction with 

a counsel's exercise of judgment is insufficient to 

warrant overturning a conviction.

[State v. Nash, 212 N.J. 518, 542 (2013) (third 

alteration in original) (internal citations and quotation 

marks omitted).]

Second, a defendant must prove he suffered prejudice due to counsel's 

deficient performance. Strickland, 466 U.S. at 687. A defendant must show 

by a "reasonable probability" that the deficient performance affected the 

outcome. Fritz, 105 N.J. at 58. "A reasonable probability is a probability 
A-3594-16T4

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sufficient to undermine confidence in the outcome." State v. Pierre, 223 N.J. 

560, 583 (2015) (quoting Strickland, 466 U.S. at 694; Fritz, 105 N.J. at 52). 

"If [a] defendant establishes one prong of the Strickland-Fritz standard, but not 

the other, his claim will be unsuccessful." State v. Parker, 212 N.J. 269, 280 

(2012).

Rule 3:22-12(a)(1)(A) states:

(a) General Time Limitations.

(1) First Petition For Post-Conviction 

Relief. Except as provided in paragraphs 

(a)(2), (a)(3), and (a)(4) of this rule, no 

petition shall be filed pursuant to this rule 

more than 5 years after the date of entry 

pursuant to Rule 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 true enforcement of the time bar 

would result in a fundamental 

injustice . . . .

We concur with the PCR court that defendant's petition is time-barred 

and, because defendant failed to show excusable neglect and that enforcement 

of the time bar would result in a fundamental injustice, that time bar cannot be 
A-3594-16T4

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relaxed. Generally, a defendant's first PCR petition must be filed within five 

years of the date the judgment of conviction is entered, "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).

Defendant's first petition for PCR was filed on November 15, 2016. The

first judgment of conviction is dated January 23, 2004 and the amended one is 

dated April 6, 2006, making the filing of the PCR petition well beyond the 

five-year time limit. In general, the five-year time period is neither stayed nor 

tolled by an appellate or other proceeding, see State v. DiFrisco, 187 N.J. 156, 

165-67 (2006), and the fact defendant was not knowledgeable about the law 

does not satisfy the exceptional circumstances standard. See State v. Dugan, 

289 N.J. Super. 15, 22 (App. Div. 1996) (holding a misunderstanding of the 

meaning of Rule 3:22-12 does not constitute excusable neglect); State v. 

Merola, 365 N.J. Super. 203, 218 (Law Div. 2002) ("Ignorance of the law and 

rules of court does not qualify as excusable neglect.").

Finally, even if defendant demonstrated excusable neglect, there is no

evidence or indication the judge who decided the suppression motion was in 
A-3594-16T4

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any way influenced by her decision in the adoption matter. Defendant's 

hypothesis the judge had qualms about her previous decision to permit 

defendant to adopt the victim and, thus, sought to mollify those feelings of 

regret by denying defendant's suppression motion, is just rank speculation. 

Therefore, defendant failed to show there is a reasonable probability that, even 

if counsel did not seek the judge's recusal, enforcement of the time bar would 

result in a fundamental injustice. See R. 3:22-12(a)(1)(A).

In summary, we are satisfied defendant did not establish he is entitled to 

a relaxation of the time limit in Rule 3:22-12(a)(1)(A). Further, even if there 

were no time bar, there is no evidence the judge who decided the suppression

motion had a conflict of interest. Accordingly, even if defendant were able to 

meet the first prong of the Strickland standard, he could not meet the second 

prong. Defendant did not provide any evidence there is a reasonable 

probability that trial counsel's alleged ineffectiveness affected the outcome. 

See Fritz, 105 N.J. at 58.

Affirmed.