STATE OF NEW JERSEY VS. BRUCE CARSON (05-01-0124, MIDDLESEX COUNTY…

                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2485-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

BRUCE CARSON,
a/k/a BRUCE CARSO

     Defendant-Appellant.
__________________________

                    Submitted September 29, 2020 – Decided October 30, 2020

                    Before Judges Messano and Hoffman.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 05-01-
                    0124.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Monique Moyse, Designated Counsel, on the
                    brief).

                    Yolanda Ciccone, Middlesex County Prosecutor,
                    attorney for respondent (Patrick F. Galdieri, II,
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Bruce Carson appeals from the November 29, 2018 Law

Division order denying his petition for post-conviction relief (PCR) without an

evidentiary hearing, contending trial and PCR counsel were ineffective. We

affirm because defendant's petition is time-barred under Rule 3:22-12(a)(1) and

otherwise lacks merit.

                                       I

      On January 26, 2005, a Middlesex County grand jury returned an

indictment charging defendant with two counts of first-degree aggravated sexual

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

N.J.S.A. 2C:14-2(b); two counts of first-degree endangering the welfare of a

child, N.J.S.A. 2C:24-4(b)(3); and four counts of second-degree endangering the

welfare of a child, N.J.S.A. 2C:24-4(a), (b)(4).     The charges arose out of

defendant's sexual assault of a friend's two minor daughters.

      On April 29, 2005, pursuant to a plea agreement, defendant pled guilty to

the two counts of first-degree aggravated sexual assault. At the plea hearing,

defendant acknowledged that he understood the parameters of the plea

agreement and expressed satisfaction with trial counsel. On September 30,

2005, the trial judge sentenced defendant to concurrent fifteen-year terms, as


                                                                       A-2485-18T4
                                       2
well as parole supervision for life, Megan's Law compliance, fines, and

restitution.

        On October 4, 2011, defendant filed a pro se motion to amend his

sentence, arguing he was unable to pay the fines and restitution while

incarcerated.    The trial court granted defendant's motion and amended his

judgment of conviction, suspending all fines and restitution, on January 11,

2013.

        Defendant filed a pro se petition for PCR on August 4, 2017, eleven years

and eleven months after his original sentencing and five days before his release

from prison. Defendant's petition claimed ineffective assistance of counsel,

specifically alleging his trial counsel failed to inform him of pending charges,

give him a copy of discovery, give him legal advice, give him a legal defense,

answer calls and emails, and sit and speak with him at sentencing. Appointed

PCR counsel filed a supporting brief on March 1, 2018.

        On November 29, 2018, the PCR judge heard oral argument on defendant's

PCR petition at a non-evidentiary hearing. The judge concluded defendant

failed to establish the requisite prima facie case for ineffective assistance,

finding defendant "offer[ed] no concrete evidence of [trial counsel's] failure."

Moreover, the judge found defendant's petition time-barred, pursuant to Rule


                                                                         A-2485-18T4
                                        3
3:22-12(a), absent a showing of excusable neglect. Defendant provided no

explanation for his delay in seeking PCR.

      This appeal followed, with defendant raising the following arguments:

            POINT ONE

            THIS CASE MUST BE REMANDED FOR
            ASSIGNMENT OF NEW PCR COUNSEL BECAUSE
            PCR COUNSEL FAILED TO REPRESENT MR.
            CARSON SO AS TO RENDER HIS PCR PETITION
            MEANINGLESS.

            POINT TWO

            IN THE ALTERNATIVE, MR. CARSON IS
            ENTITLED TO AN EVIDENTIARY HEARING ON
            HIS CLAIM THAT HIS TRIAL ATTORNEY
            RENDERED INEFFECTIVE ASSISTANCE OF
            COUNSEL FOR FAILING TO COMMUNICATE,
            CONSULT, OR INVESTIGATE, ALL OF WHICH
            LED TO HIS INADEQUATE REPRESENTATION.

            POINT THREE

            THE PCR COURT ERRONEOUSLY RULED THAT
            MR. CARSON'S PETITION WAS TIME-BARRED
            BECAUSE ANY DELAY IN FILING THE PETITION
            WAS DUE TO 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-BAR
            WOULD RESULT IN A FUNDAMENTAL
            INJUSTICE.



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                                      4
                                         II

      Defendant contends his ineffective assistance of trial counsel claim was

improperly time-barred because his delay was due to excusable neglect and

enforcement of the time-bar would result in a fundamental injustice.              We

disagree.

      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

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). The 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)

(alteration in original) (quoting State v. Afanador, 

151 N.J. 41

, 52 (1997)).

Therefore, "[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." State v. Mitchell, 

126 N.J. 565

, 580 (1992).

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

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


                                                                             A-2485-18T4
                                         5
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 wheth er

there has been an 'injustice' sufficient to relax the time limits." 

Afanador, 151 N.J. at 52

(citing 

Mitchell, 126 N.J. at 580

).

      Here, defendant filed his PCR petition nearly seven years beyond the five-

year time-bar period. This is extensive delay and thus raises defendant's burden.

Mitchell, 126 N.J. at 580

. However, defendant provides no facts or evidence to

support his claim. Defendant argues, "[t]he circumstances of this case satisfy

the exception," but does not explain what the circumstances are or how they

demonstrate excusable neglect. Nor do exceptional circumstances appear in the

record. Instead, the record shows defendant's ability to pursue claims within the

legal system as early as October 2011, when he filed a successful pro se petition

to amend his sentence. Furthermore, defendant provides no facts or evidence to

establish that enforcement of the time-bar would result in a fundamental

injustice.

      Even if defendant's ineffective assistance of trial counsel claim were not

time-barred, it is based on bald assertions without evidential support in the




                                                                         A-2485-18T4
                                        6
record, and otherwise lacks sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E).

      Finally, solely on the record before us, we cannot conclude that PCR

counsel provided ineffective assistance under the standards set forth by the

Court in State v. Rue, 

175 N.J. 1

(2002), and State v. Webster, 

187 N.J. 254

(2006).

      Affirmed.




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                                      7

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