Opinion
DOCKET NO. A-1278-12T1
03-03-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BERNARD DEMERS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief). Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Kennedy and Guadagno.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 98-10-0476.
Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief).
Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Bernard Demers appeals from the August 22, 2012 Law Division order denying his petition for post-conviction relief (PCR) after an evidentiary hearing. For the reasons that follow, we affirm.
I.
In 1998, a Cape May County grand jury returned an indictment charging defendant with second-degree sexual assault, N.J.S.A. 2C:14-2(c) (count one), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count two).
On December 17, 1998, defendant entered a negotiated plea to count two, and admitted that he had sexual intercourse with a fourteen-year old girl when he was twenty-five. The plea form provided that the prosecutor would recommend probation and no jail time or fine, but defendant would be subject to Megan's Law and drug, alcohol, and mental health evaluations. The plea form contained no specific reference to community supervision for life (CSL). In return for defendant's plea, the State agreed to dismiss count one and pending robbery charges.
At the time of the plea, the prosecutor informed the court that "Megan's Law conditions would . . . apply." When the judge asked defendant of his understanding of the plea agreement, he responded, "I would confess to endangerment, there would be Megan's [L]aw, no jail, no fine." During the plea colloquy, the judge reaffirmed that "this is a Megan's Law matter."
Defendant was sentenced on February 26, 1999. Prior to the imposition of sentence, the prosecutor asked the court to "make sure that the judgment of conviction reflects the community supervision for life is appropriate in this case." The judge imposed a sentence of probation for a term of three years, and stated, "defendant is subject to Megan's Law and community supervision for life." The judgment of conviction indicates: THE DEFENDANT IS SENTENCED AS FOLLOWS: * * * MEGAN'S LAW OFFENSE. COMMUNITY SUPERVISION FOR LIFE * * *. There was no appeal from this sentence.
Defendant relocated to Florida and his probation supervision was transferred to the Florida Department of Corrections. After defendant completed his term of probation, he was served with a copy of a document entitled "Community Supervision for Life," on February 7, 2002. The two-page document listed all of the requirements and prohibitions mandated by CSL, including the following provision:
B. I understand that if the victim(s) of an offense committed by me is a minor, I shall, in addition to the conditions specified in A above, be subject to the following conditions:Defendant signed the document, acknowledging receipt.
1. I am to refrain from initiating, establishing or maintaining contact with any minor.
2. I am to refrain from attempting to initiate, establish or maintain contact with any minor.
3. I am to refrain from residing with any minor without the prior approval of the assigned parole officer.
Defendant married in 2005 and his wife gave birth to a son in January 2006. Because of the restrictions contained in defendant's CSL, the Florida authorities would not permit him to reside with his wife and child until certain conditions were met.
In December 2006, defendant applied to the Law Division for modification of the CSL. On February 20, 2007, the court entered an order denying the motion on the ground that it lacked jurisdiction. There was no appeal from this order.
On September 7, 2011, defendant filed a pro se PCR petition. After counsel was appointed, the court conducted an evidentiary hearing on July 3, 2012. The court heard the testimony of New Jersey Senior Parole Officer Stefan Brown who supervised defendant from 2009 to 2012. Brown explained that defendant signed the CSL form in 2002, as he was required to complete his three-year term of probation before beginning CSL.
One of the conditions of defendant's CSL is that he is not allowed unsupervised access to minors. After the birth of his child in 2006, defendant requested permission to have unsupervised contact with his son. Because defendant failed to meet certain requirements, permission was denied. Brown testified that defendant was imprisoned in New Jersey for 365 days in 2011 for violating CSL. After defendant's release in September 2011, his supervision was transferred back to the Florida authorities. Brown also noted there was an outstanding warrant for defendant's arrest for failing to stay in contact with the parole office.
Defendant explained that he was charged with leaving the state and driving under the influence.
Defendant testified and claimed he was never notified that CSL would be imposed as part of his sentence. He acknowledged that he signed the CSL form in 2002, but claims he was "shocked" and "bewildered" because he thought he had completed probation. He claimed that, when he pled guilty, it was not his understanding that he would be placed on probation for life. After signing the CSL certification, defendant contacted his plea counsel who told him there was nothing she could do. Defendant stated that had he been aware of the CSL restrictions, he would not have pled guilty.
The PCR court rendered an oral decision finding that defendant's petition was time-barred, as it was filed on September 7, 2011, "well beyond the 5 year period contemplated by Rule 3:22-12(a)." The court then determined that none of the exceptions that would relax the time limitations, such as an illegal sentence, excusable neglect, or interests of justice, applied. The court rejected defendant's claim of excusable neglect, noting that defendant's petition was filed more than five years after his sentence, but also more than five years after the birth of his son, the event that triggered his application to modify his supervision.
The court also found that defendant had an opportunity to modify the conditions of his CSL to enable him to reunite with his family but that he had failed to comply with the "rather basic conditions" of the protocol.
On appeal, defendant raises one point:
THE PCR COURT ERRED RULING THAT MR. DEMERS'S PETITION FOR POST-CONVICTION RELIEF WAS TIME BARRED.
II.
We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The PCR court held that defendant's petition was not timely and he had not demonstrated excusable neglect to toll the five-year limitation provided by Rule 3:22-12(a)(1). That rule provides in pertinent part:
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 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.
"The five-year period commences from the time of the conviction or the time of the sentencing, whichever the defendant is challenging." State v. Goodwin, 173 N.J. 583, 594 (2002). Defendant's judgment of conviction is dated February 26, 1999. Accordingly, unless defendant can demonstrate the requisite excusable neglect, he was obligated to file for PCR on or before the five-year expiry, February 26, 2004. Defendant filed his PCR petition on September 7, 2011.
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. Afanador, 151 N.J. 41, 52 (1997).
Defendant's claim of excusable neglect is linked to his claim of ineffective assistance of his plea counsel for failing to advise him that he would be subject to CSL and for telling him nothing could be done after he was served with the conditions of CSL.
"The concept of excusable neglect encompasses more than simply providing a plausible explanation for a failure to file a timely PCR petition." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). To be allowed a waiver of the time bar, defendant must allege facts demonstrating that the delay was due to the defendant's excusable neglect and, if the petitioner does not allege sufficient facts, the Rule bars the claim. State v. Mitchell, 126 N.J. 565, 576 (1992).
The factors to be considered in determining whether the appellant has asserted a sufficient basis for relaxing or waiving the Rule's five-year time constraint include "the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an 'injustice' sufficient to relax the time limits." Afanador, supra, 151 N.J. at 52. "'Absent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay.'" State v. Milne, 178 N.J. 486, 492 (2004) (quoting Afanador, supra, 151 N.J. at 52).
The record is clear that defendant was told at the time of his sentencing that he would be subject to CSL, and the judgment of conviction reflects that he is subject to CSL. Moreover, he was served with a copy of the "Community Supervision for Life" document on February 7, 2002, listing all of the requirements and prohibitions that were mandated. While defendant claims he was "shocked" and "bewildered" by these provisions, he waited nine and one-half years to file a PCR petition.
Defendant's excuse for his inaction is that he was told by his plea counsel that nothing could be done and he did not understand "the nuances of the criminal legal process[.]" Ignorance of the law and rules of court does not qualify as excusable neglect. See State v. Murray, 162 N.J. 240, 246 (2000) ("Defendant's assertion that he lacks sophistication in the law does not satisfy the exceptional circumstances required by State v. Mitchell."). Courts should not relax the filing bar where a defendant had prior opportunities to assert his claims in a timely fashion and failed to do so. See Afanador, supra, 151 N.J. at 52. Defendant has failed to demonstrate that he asserted his claims in a timely fashion.
We are also satisfied that defendant has failed to demonstrate any fundamental injustice sufficient to relax the procedural bar. While the prohibitions of living with his family and having only supervised contact with his son are onerous, defendant has had the opportunity to be relieved of these restrictions, but has failed due to his repeated violations of the terms of CSL.
Defendant does not challenge the State's claim that it would suffer extreme prejudice if required to re-litigate this case now, fifteen years after the filing of the indictment.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION