On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 97-01-0064.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 18, 2012 -
Before Judges Axelrad and Sapp-Peterson.
Defendant David Hohsfield appeals from the March 5, 2010 order of the Law Division denying his second petition for post-conviction relief (PCR), which alleged ineffective assistance of trial counsel and requested an evidentiary hearing. We affirm.
Defendant was indicted by a Bergen County Grand Jury on second-degree attempted kidnapping (count one), third-degree luring a child into a motor vehicle (count two), second-degree sexual assault (count three), and third-degree endangering the welfare of a child (count four).
On September 23, 1997, defendant pled guilty pursuant to a negotiated plea to second-degree sexual assault, N.J.S.A. 2C:14-2b, (count three), in exchange for an agreement by the State to dismiss the balance of the indictment and recommend a maximum period of incarceration of seven years. During the plea colloquy, the court addressed and defendant acknowledged the Megan's Law and community supervision for life (CSL) components of his sentence. Defendant further acknowledged, and the court accepted defendant's plea as voluntary, knowing and intelligently entered, after which defendant provided a factual allocution to the sexual assault charge.
On March 20, 1998, defendant was sentenced in accordance with the negotiated plea to a seven-year custodial term. He was also ordered to register as a sex offender under Megan's Law and to CSL.
Defendant appealed, challenging only his sentence, which we affirmed on March 31, 1999 on an ESOA calendar. R. 2:9-11. In May 2002, defendant filed a PCR petition, alleging ineffective assistance of trial counsel and an inadequate factual basis to support the conviction. He sought to vacate or amend the sentence to remove the CSL requirement. Defendant elected to withdraw his PCR petition, and by order of February 8, 2005, the court dismissed defendant's PCR petition without prejudice.
On April 23, 2009, defendant filed a second PCR petition and brief, supplemented with a brief by counsel, alleging ineffective assistance of trial counsel, in part, for not filing any motions with the court, never communicating with him or responding to his inquiries, and failing to fully inform him about the conditions of CSL. He further urged that his plea should be vacated because it was not knowing and voluntary, and his claims should not be procedurally barred as they implicated constitutional issues.
Following oral argument on March 5, 2010, Judge Eugene H. Austin denied defendant's petition, memorialized in an order of the same date. The judge found the petition was time-barred, having been filed over eleven years after his conviction. The judge noted that defendant's first PCR petition had been timely filed but had been voluntarily withdrawn, and although defendant could refile, he had to do it timely. Judge Austin also found defendant's claimed lack of understanding of the consequences of his plea were without merit and did not establish a prima facie case of ineffective assistance of counsel warranting an evidentiary hearing under State v. Preciose, 129 N.J. 451, 462-63 (1992), based on the plain language of the plea colloquy. This appeal ensued.
On appeal, defendant argues the court erred in failing to conduct an evidentiary hearing to determine the merits of his claim that trial counsel was ineffective in failing to inform him of the CSL penal consequences of his plea, he would not have entered the plea if he had the correct information, and his plea should be vacated. He also contends he demonstrated excusable neglect for his delay in filing the second PCR petition and his ineffective assistance of counsel claims relating to the entry of an involuntary and unknowing guilty plea implicate constitutional concerns which justify relaxing any procedural bars. Defendant also generally "re-asserts all points" raised before Judge Austin on PCR.
Based on our review of the record, we are not persuaded by any of defendant's arguments. Defendant's PCR petition was clearly filed substantially outside of the general five-year bar in effect at the time of his plea and is procedurally time-barred. R. 3:22-12. Defendant's claims of excusable neglect are nothing more than bare allegations, insufficient to support a PCR petition. See, e.g., State v. Cummings, 321 N.J. Super. 154, 168 (App. Div.), certif. denied, 162 N.J. 199 (l999). At oral argument, PCR counsel first claimed defendant was told by his first PCR counsel that he should withdraw his petition and refile it when he was released from prison. Defendant never certified to that fact and merely made the unsworn response at oral argument that the vague statement was "correct."
Moreover, the record belies the truth of this claim as defendant did not file his second PCR when he was released from prison. Although the record does not reflect the date of defendant's release, it does reflect that defendant's l998 sentence was for a seven-year flat term, with 772 days of jail credits. Defendant's first PCR reflects that he was incarcerated when he filed it in May 2002. However, defendant was released prior to his filing of the present April 2009 PCR petition, which reflects he was incarcerated on "unrelated charge(s)." In fact, as noted by the State, in 2007, defendant committed an endangering the welfare of a child offense, violating his CSL, for which he was sentenced to an eighteen-month term. We affirmed ...