Opinion
DOCKET NO. A-2720-12T3
08-07-2014
STATE OF NEW JERSEY, Plaintiff-Respondent v. KEVIN REASE, Defendant-Appellant.
Robert A. Warmington, attorney for appellant. Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Haas. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-02-652. Robert A. Warmington, attorney for appellant. Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Kevin Rease appeals from the order of the Law Division, Criminal Part denying his post-conviction relief (PCR) petition. We affirm.
Pursuant to a negotiated agreement with the State, defendant pled guilty on June 25, 2002, to second degree sexual assault of a four-year-old boy, identified here as G.B., by touching the child's penis for defendant's sexual gratification, or to degrade the victim, N.J.S.A. 2C:14-2b, second degree sexual assault by sexual contact upon G.B., by touching the child's buttocks for defendant's sexual gratification, or to degrade the victim, N.J.S.A. 2C:14-2b, third degree luring G.B. to commit a criminal offense against the child, N.J.S.A. 2C:13-6, second degree endangering the welfare of G.B., while defendant had a legal duty or assumed a responsibility to care for G.B., N.J.S.A. 2C:24-4, second degree endangering the welfare of a child, by causing the child to engage in a prohibited sexual act intending the act to be photographed or reproduced, N.J.S.A. 2C:24-4b(3), third degree luring of a six-year-old child identified here as N.B., to commit a criminal offense upon the child, N.J.S.A. 2C:13-6, and second degree endangering the welfare of N.B., while defendant had a legal duty or assumed a responsibility to care for N.B., N.J.S.A. 2C:24-4.
As part of the plea agreement the State dismissed two first degree kidnapping charges under N.J.S.A. 2C:13-1b(1), alleging that defendant kidnapped G.B. and N.B. for the purpose of committing a sexual assault, and agreed to recommend a maximum penal exposure of ten years. On September 6, 2002, the court sentenced defendant to an aggregate term of ten years imprisonment, to be served concurrent with a seventy-month term of imprisonment imposed by the United States District Court of New Jersey on February 28, 2002, for the crime of transporting child pornography. Defendant did not seek appellate review of either the state or federal conviction or sentence.
On July 18, 2012, nearly ten years after he was sentenced by the Law Division, Criminal Part, defendant, represented by private counsel, filed this PCR petition alleging ineffective assistance of counsel. Specifically, defendant claimed his attorney's "representation was patently ineffective because he never explained to me the consequences of Megan's Law and Community Supervision for Life (CSL) at the time of my guilty plea." Defendant elaborated on his claim of ineffective assistance of trial counsel in a seven-page affidavit, containing fifty-two numbered paragraphs. This document describes a litany of other alleged examples of ineffective assistance by his attorney, including a failure to prepare any defense on his behalf or conduct any kind of investigation, failure to retain "any experts for my defense," failure to obtain a transcript copy of the grand jury proceedings, and a total failure to grasp "the basic rules that sex offenders must adhere to."
Defendant's PCR petition came for adjudication on January 4, 2013, before Judge Michael L. Ravin. After hearing the arguments of counsel, and reviewing defendant's allegations of ineffective assistance of counsel against the standards established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), Judge Ravin denied the petition without an evidentiary hearing. Judge Ravin found defendant's PCR claims were time-barred under Rule 3:22-12(a)(1), which requires a first PCR petition to be filed no
more than 5 years after the date of entry . . . of the judgment of conviction that is being challenged 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.
[(Emphasis added).]
In denying defendant's petition, Judge Ravin specifically found that
[p]etitioner filed his first and only PCR petition on or about July 16th, 2012, almost 10 years after he was sentenced on September 6th, 2002, and almost 5 years after the time
bar. He has failed to allege any facts whatsoever showing that the delay was caused by excusable neglect, either in his petition or in his supporting brief.
Defendant now appeals raising the following arguments.
POINT ONE
THE DEFENDANT[']S PETITION FOR POST-CONVICTION RELIEF IS NOT BARRED BECAUSE HE HAS ESTABLISHED EXCUSABLE NEGLECT AND ENFORCEMENT OF THE TIME BAR WOULD RESULT IN A FUNDAMENTAL INJUSTICE.
POINT TWO
THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HE WAS NOT PROPERLY ADVISED REGARDING THE CONSEQUENCES OF COMMUNITY SUPERVISION FOR LIFE, INCLUDING THE ELECTRONIC MONITORING PROGRAM, AND MUST THEREFORE BE ALLOWED TO WITHDRAW HIS PLEA
OR, IN THE ALTERNATIVE, BE GRANTED AN EVIDENTIARY HEARING.
Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We emphasized that pursuant to Rule 1:3-4(c), the time restrictions in Rule 3:22-12 cannot be relaxed absent evidence sufficient to satisfy the two-prong standard of "excusable neglect" and "reasonable probability" that "enforcement of the time bar would result in a fundamental injustice." R. 3:22-12(a)(1). Our Supreme Court has made clear that this two-prong standard is to be strictly construed. State v. McQuaid, 147 N.J. 464, 485 (1997). Here, the record is barren of any evidence providing a reasonable explanation as to why defendant waited nearly ten years before filing his first PCR petition. We thus affirm substantially for the reasons expressed by Judge Ravin in his oral opinion delivered from the bench on January 4, 2013.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION