granting defendant forty-five days to file an appeal after both defendant and defense counsel certified that defendant had asked counsel to file an appeal, and counsel had not done so
How later courts described this case
- granting defendant forty-five days to file an appeal after both defendant and defense counsel certified that defendant had asked counsel to file an appeal, and counsel had not done so
- finding assertions unsupported by affidavits or certifications to be insufficient to support a prima facie case of ineffectiveness
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4219-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KHARY ARRINGTON, a/k/a
KHARY SHARIFF JACKSON,
Defendant-Appellant.
__________________________
Submitted March 26, 2019 – Decided May 28, 2019
Before Judges Gilson and Natali.
On appeal from Superior Court of New Jersey, Law
Division, Union County and Middlesex County,
Indictment Nos. 05-01-0076, 05-03-0412, 05-10-1136,
and 05-10-1143.
Joseph E. Krakora, Public Defender, attorney for
appellant (Ruth Elizabeth Hunter, Designated Counsel,
on the brief).
Michael A. Monahan, Acting Prosecutor of Union
County, attorney for respondent (Michele C. Buckley,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Khary Arrington appeals from a February 15, 2017 order
denying his petition for post-conviction relief (PCR). Defendant argues that the
PCR court erred in denying his petition without an evidentiary hearing and
misapplied the standard for his request to withdraw his guilty plea. He also
contends that he should be allowed to file a direct appeal. We reject these
arguments and affirm because defendant's petition was time-barred under Rule
3:22-12(a)(1) and otherwise lacked merit.
I.
In 2005, defendant was charged with nineteen crimes under four
indictments. Those charges included second- and third-degree offenses of
possession of controlled dangerous substances (CDS) with intent to distribute,
and weapons offenses. That same year, defendant pled guilty to four crimes,
one under each of the indictments. Specifically, he pled guilty to second-degree
possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and
N.J.S.A. 2C:35-5(b)(2); third-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5(b); third-degree possession of cocaine with intent to distribute, N.J.S.A.
2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); and third-degree possession of heroin
with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7. In July
A-4219-16T2
2
2006, defendant was sentenced to an aggregate term of seven years in prison
with eighteen months of parole ineligibility.
Defendant did not file a direct appeal. Instead, he served his sentence and
was released. Thereafter, defendant was charged and convicted of federal
crimes. He was sentenced to an extended term of twelve years in federal prison.
In January 2015, defendant filed a pro se petition for PCR. He then
obtained legal counsel and counsel filed a supplemental brief on his behalf. On
October 27, 2016, the PCR court heard oral argument from counsel. Defendant
was not present because he was in federal prison, but his counsel waived his
appearance.
On February 15, 2017, the PCR court denied defendant's petition and
issued a written opinion explaining that ruling. In seeking PCR before the Law
Division, defendant argued that his trial counsel had been ineffective in failing
to inform him about the future consequences of his guilty pleas if he was
convicted of federal crimes, failing to object to the insufficient factual basis of
his pleas, and failing to file a direct appeal. In connection with those arguments,
defendant asserted that the five-year time bar should be relaxed because he could
show excusable neglect and his contentions should be considered on their merits
in the interest of justice. He also argued that he was entitled to an evidentiary
A-4219-16T2
3
hearing. Finally, defendant argued that he should be allowed to withdraw his
pleas because he had provided an insufficient factual basis.
The PCR court analyzed each of those arguments and rejected them. First,
the court found that the petition had been filed beyond the five-year limitation
period and defendant had not shown excusable neglect or an interest of justice
supporting relaxation of the time bar. The court also found that defendant failed
to make a prima facie showing of ineffective assistance of counsel. Finally, the
court reviewed defendant's plea transcript and found that defendant had given a
factual basis for each of the four crimes to which he pled guilty, had entered his
pleas knowingly, intelligently, and voluntarily, had not asserted a colorable
claim of innocence, and had not otherwise provided a sufficient basis to
withdraw his pleas.
II.
On this appeal, defendant makes three arguments, which he articulates as
follows:
POINT I – THE PCR COURT ERRED IN DENYING
AN EVIDENTIARY HEARING BECAUSE IT
FAILED TO CONSIDER DEFENDANT'S CLAIM
THAT HIS ATTORNEYS MISADVISED HIM
CONCERNING THE NUMBER OF CONVICTIONS
TO WHICH HE WAS PLEADING GUILTY.
A-4219-16T2
4
POINT II – THE PCR COURT'S DECISION SHOULD
BE REVERSED BECAUSE IT MISAPPLIED STATE
V. SLATER, 198 N.J. 145 (2009). SEE STATE V.
O'DONNELL, 435 N.J. SUPER. 351 (App. Div. 2014).
POINT III – DEFENDANT IS ENTITLED TO FILE A
DIRECT APPEAL PURSUANT TO STATE V.
JONES, 446 N.J. SUPER. 28 (APP. DIV. 2016),
BECAUSE DEFENDANT REQUESTED THAT HIS
ATTORNEY FILE AN APPEAL, BUT HIS
ATTORNEY FAILED TO DO SO.
We reject defendant's arguments concerning ineffective assistance of
counsel because his petition is time-barred. Moreover, to the extent that he made
a motion to withdraw his guilty pleas, that application lacks substantive merit.
A. The PCR Petition Is Time-Barred
Rule 3:22-12(a)(1) precludes 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). 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
A-4219-16T2
5
v. Afanador, 151 N.J. 41, 52 (1997)). Moreover, we have held that when a first
PCR petition is filed more than five years after the date of entry of the judgment
of conviction, the PCR court should examine the timeliness of the petition and
the defendant must "submit competent evidence to satisfy the standards for
relaxing the rule's time restrictions[.]" State v. Brown, 455 N.J. Super. 460, 470
(App. Div. 2018).
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." State v. Milne,
178 N.J. 486, 492 (2004) (quoting Afanador, 151 N.J. at 52).
Here, defendant was sentenced on July 20, 2006. His petition for PCR,
however, was filed on January 9, 2015, more than eight years after he was
sentenced. In the Law Division, defendant claimed excusable neglect because
he did not have access to law books. The Law Division rejected that argument
and we do as well. Defendant offered no proof that he could not have accessed
legal counsel or the free law libraries that were available to him. In addition,
A-4219-16T2
6
"[i]gnorance of the law and rules of court does not qualify as excusable neglect."
State v. Merola, 365 N.J. Super. 203, 218 (Law Div. 2002), aff'd o.b., 365 N.J.
Super. 82 (App. Div. 2003); accord State v. Jackson, 454 N.J. Super. 284, 295
n.6 (App. Div. 2018).
Defendant also cannot establish a fundamental injustice would occur if the
time-bar is enforced. As previously noted, defendant was indicted for nineteen
crimes, including a number of second- and third-degree crimes arising from
different incidents. If he had gone to trial, his potential exposure was a
substantial period of incarceration that could have been in excess of twenty
years. By pleading guilty, defendant was able to negotiate a plea agreement
where he was sentenced to an aggregate term of seven years with eighteen
months of parole ineligibility.
B. The PCR Petition Lacked Merit
Furthermore, there was no showing that required an evidentiary hearing
on defendant's PCR petition. A defendant is entitled to an evidentiary hearing
on a PCR petition only if he or she establishes a prima facie showing in support
of the petition. R. 3:22-10(b); State v. Rose, ___ N.J. Super. ___, ___ (App.
Div. 2019) (slip op. at 7) (quoting R. 3:22-10). To establish a claim of
ineffective assistance of counsel, a defendant must satisfy a two-part test: (1)
A-4219-16T2
7
"counsel made errors so serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment[,]" and (2) "the deficient
performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668,
687 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland
test). To set aside a guilty plea based on ineffective assistance of counsel, a
defendant must show "that there is a reasonable probability that, but for
counsel's errors, [the defendant] would not have pled guilty and would have
insisted on going to trial." State v. DiFrisco, 137 N.J. 434, 457 (1994) (alteration
in original) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Moreover, a
defendant must make those showings by presenting more than "bald assertions"
that he or she was denied the effective assistance of counsel. State v. Cummings,
321 N.J. Super. 154, 170 (App. Div. 1999).
Before the Law Division, defendant argued that his trial counsel was
ineffective by not advising him of the potential collateral consequences if, in the
future, defendant was convicted of a federal crime. The PCR court correctly
noted that there were no pending federal charges against defendant when he pled
guilty in 2005 or when he was sentenced in 2006. Consequently, there was no
requirement that his plea counsel advise him of the potential collateral
A-4219-16T2
8
consequences of a future potential federal conviction. State v. Wilkerson, 321
N.J. Super. 219, 227 (App. Div. 1999).
Before us, defendant contends that his trial counsel was ineffective
because he was led to believe that his four guilty pleas would be considered as
one conviction. That argument is rebutted by the record. When defendant pled
guilty, he was clearly advised that he was pleading guilty to four separate crimes.
Indeed, defendant reviewed and signed four separate plea forms. At his plea
hearing, the court then reviewed each of the four crimes and defendant
acknowledged that he was pleading guilty to four separate crimes. Thereafter,
at his sentencing, defendant was also advised and sentenced on the four separate
crimes.
C. Defendant's Request to File a Direct Appeal
Defendant next contends that his trial counsel was ineffective in failing to
file a direct appeal and that he is entitled to an order allowing him to file a direct
appeal. Defendant also contends that, at a minimum, he is entitled to an
evidentiary hearing concerning his request to file a direct appeal. We disagree.
There is a presumption that a defendant was prejudiced by counsel's
performance if the defendant can show that he or she requested counsel to file a
direct appeal, and counsel failed to file that appeal. See Roe v. Flores-Ortega,
A-4219-16T2
9
528 U.S. 470, 483 (2000); State v. Carson, 227 N.J. 353, 354 (2016); State v.
Jones, 446 N.J. Super. 28, 30-31, 33-34 (App. Div.), certif. denied, 228 N.J. 72
(2016). Here, that presumption of prejudice does not apply because defendant
relies entirely on bald assertions to support his claim that he instructed trial
counsel to file an appeal on his behalf, and counsel refused to comply.
Defendant's PCR petition did not assert that he had requested counsel to
file an appeal, nor did he submit any certifications or sworn statements declaring
he had instructed counsel to file an appeal. Instead, the assertions appear only
in defendant's briefs submitted by PCR counsel. Without any supporting
evidence, the assertions in defendant's briefs do not entitle him to the
presumption that he was prejudiced by counsel's performance. Compare Carson,
227 N.J. at 354-55 (granting defendant forty-five days to file an appeal after
both defendant and defense counsel certified that defendant had asked counsel
to file an appeal, and counsel had not done so); and Jones, 446 N.J. Super. at 30-
31, 34 (restoring defendant's right to appeal after defendant provided an
undisputed sworn statement that he had directed his attorney to file an appeal);
with Cummings, 321 N.J. Super. at 170-71 (finding assertions unsupported by
affidavits or certifications to be insufficient to support a prima facie case of
ineffectiveness).
A-4219-16T2
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When a defendant has not shown that he or she requested that counsel file
an appeal, courts should consider "'whether counsel's assistance was reasonable
considering all the circumstances,' and whether counsel's deficient performance
'actually cause[d] the forfeiture of the defendant's appeal[.]'" Jones, 446 N.J.
Super. at 33-34 (first alteration in original) (citations omitted) (quoting Flores-
Ortega, 528 U.S. at 478, 484). Under this standard, defendant also has not
demonstrated a prima facie claim of ineffective assistance of counsel based on
the failure to file an appeal.
Defendant presents no evidence that counsel's alleged deficient
performance caused the forfeiture of defendant's appeal. Instead, the record
reveals that when defendant was sentenced in 2006, he was expressly advised
that he had forty-five days to file a direct appeal. Consequently, forty-five days
after his sentencing, defendant knew or should have known that no direct appeal
had been filed. Indeed, defendant served his entire sentence and was released
prior to filing his PCR petition. Under these circumstances, defendant is not
entitled to file a direct appeal or to an evidentiary hearing.
D. The Request to Withdraw His Guilty Pleas
Finally, in the papers filed before the Law Division, defendant argued that
he should also be allowed to withdraw his guilty pleas because he did not
A-4219-16T2
11
provide a sufficient factual basis. The PCR court reviewed defendant's plea
transcript and found that defendant had made knowing, voluntary, and
intelligent pleas of guilt to each of the four crimes. That analysis is set forth in
the PCR court's written opinion. We have independently reviewed the plea
transcript and agree that defendant gave an adequate factual basis for all four of
the crimes to which he pled guilty.
On this appeal, defendant argues that the PCR court used the wrong
standard in evaluating his argument. Specifically, he contends that a motion to
withdraw a guilty plea and a claim of ineffective assistance of counsel are two
distinct forms of relief that are governed by different standards. We agree with
that proposition. Nevertheless, defendant has failed to show that the PCR court
erred.
The PCR court first evaluated defendant's claims of ineffective assistance
of counsel and, under the appropriate standards, rejected those contentions,
including the contention that counsel was ineffective for failing to object to
defendant's insufficient factual bases at the plea hearing. Having conducted a
de novo review, we agree that defendant has not established a basis for PCR
relief.
A-4219-16T2
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The trial court also separately analyzed defendant's claims seeking to
withdraw his guilty pleas. In that regard, the trial court correctly analyzed the
claims under the four factors set forth in State v. Slater, 198 N.J. 145, 157-58
(2009). Again, having conducted a de novo review, we agree with the trial court
that defendant did not establish any of the four factors, and, thus, defendant is
not entitled to withdraw his guilty plea.
Affirmed.
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