STATE OF NEW JERSEY VS. JARED A. HENRY (12-02-0460, OCEAN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-0955-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JARED A. HENRY,
Defendant-Appellant.
_______________________
Argued February 24, 2021 – Decided March 18, 2021
Before Judges Ostrer, Vernoia and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Accusation No. 12-02-0460.
James H. Maynard argued the cause for appellant
(Maynard Law Office, LLC, attorneys; James H.
Maynard, on the briefs).
Shiraz Deen, Assistant Prosecutor, argued the cause for
respondent (Bradley D. Billhimer, Ocean County
Prosecutor, attorney; Samuel Marzarella, Chief
Appellate Attorney, of counsel; Shiraz Deen, on the
brief).
PER CURIAM
Defendant Jared Henry appeals from an October 8, 2019 order denying
his second post-conviction relief (PCR) petition. We affirm.
On November 16, 2010, defendant was charged with third-degree
distribution of obscene materials to a person under the age of eighteen, N.J.S.A.
2C:24-3(b), and second-degree attempted sexual assault, N.J.S.A. 2C:14-
2(c)(4). He pled guilty to third-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4(a), in exchange for a recommended sentence of parole
supervision for life (PSL) and compliance with the requirements of Megan's
Law, N.J.S.A. 2C:7-1 to -23.
On September 28, 2012, defendant physically appeared before, and was
sentenced by, Judge Rochelle Gizinski, in accordance with the plea agreement.
He did not file a direct appeal from his conviction or sentence.
On May 30, 2013, counsel for defendant filed defendant's first PCR
petition, alleging plea counsel misinformed defendant about the consequences
of PSL. In his petition, defendant referenced the judgment of conviction (JOC)
"entered by [the trial court] on September 28, 2012." Defendant also annexed
to his 2013 petition "[t]he transcript of defendant's sentencing hearing and
judgment of conviction . . . as Exhibits F [and] G respectively." The PCR judge
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denied the petition on March 10, 2014. Defendant did not appeal from this PCR
denial.
In 2018, defendant moved to withdraw his guilty plea, alleging his JOC
was invalid. However, several months later, he withdrew that motion. On July
18, 2019, defendant filed a second petition for PCR, renewing the argument from
his first PCR petition that plea counsel was ineffective by misinforming him
about the consequences of PSL. Additionally, he contended no valid JOC
regarding his September 28, 2012 sentence had been entered in accordance with
Rule 3:21-5.
The PCR judge disagreed, and denied defendant's second PCR petition as
time barred under Rule 3:22-12(a), finding it was filed more than one year after
the March 10, 2014 denial of his first PCR petition. The judge noted that in
defendant's first PCR petition, he "certified to the court he was the subject of a
valid judgment of conviction which he was then collaterally attacking due to
allegations of ineffective assistance of counsel. He failed to raise any claim
. . . at that time of an invalid JOC." Moreover, the judge observed that "[a]ll
versions of the JOC contained in petitioner's appendix have the following
sentence on page three thereof: 'This Judgment of Conviction was signed by the
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Honorable Wendel E. Daniels, P.J.Cr.P., on behalf of the sentencing judge,
Rochelle Gizinski, J.S.C.'"
On appeal, defendant raises the following arguments:
POINT I
THE COURT HAD JURISDICTION TO CONVERT,
OR OTHERWISE TREAT PETITIONER’S PCR AS,
A MOTION TO WITHDRAW HIS GUILTY PLEA
[NOT RAISED BELOW] AND FURTHER HAD
JURISDICTION TO HEAR AND DECIDE
PETITIONER’S PETITION.
A. The PCR Court Was Empowered to Decide the
Validity of the Judgment of Conviction Recorded
by the Court Clerk and Take Appropriate Action
Regarding Treating Petitioner's PCR Petition as a
Motion to Withdraw His Guilty Plea.
B. Petitioner's Application to the Court Was
Judiciable as No Valid Judgment of Conviction
Had Been Entered by the Clerk and
Consequently, None of the Time Bars for Direct
Appeals or Collateral Attacks on a Conviction
Applied.
C. Petitioner’s Assertion that an Unsigned JOC
Means the Sentence Has Not Yet Been Formally
or Legally Imposed Does Not "Vitiate" the
Sentence Ordered by Judge Gizinski.
POINT II
NO LEGALLY VALID, ENFORCEABLE
JUDGMENT OF CONVICTION HAS BEEN
EXECUTED IN THIS MATTER.
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A. JOC#1 – Unsigned, Undated, Received from the
File of Prior Counsel.
B. JOC#2 – Unsigned, Undated, Received from the
Office of the Clerk of the Court.
C. JOC#4 – Unsigned, Undated, Received from the
New Jersey State Parole Board.
D. JOC#5 – Signed by Judge Daniels, but Dated
[Two] Weeks Prior to Mr. Henry's Sentencing Date,
Obtained from the File of Mr. Henry's Prior PCR
Attorney.
E. JOC#3 – Signed by Judge Daniels, but with the
Signature Date Overwritten by Hand, Obtained from
the "Indictment File" of the Judge’s Records.
POINT III
THE FIVE-YEAR PERIOD DURING WHICH A
PETITIONER MUST FILE AN INITIAL PCR DOES
NOT BEGIN UNTIL THE JUDGMENT OF
CONVICTION IS SIGNED AND ENTERED BY THE
CLERK.
We need not address defendant's substantive arguments because we agree
with the PCR judge that defendant's second petition is time barred under Rule
3:22-12(a)(2).
Where a PCR court does not conduct an evidentiary hearing, we "conduct
a de novo review of both the factual findings and legal conclusions of the PCR
court." State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016) (quoting State
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v. Harris, 181 N.J. 391, 421 (2004)). "[S]econd or subsequent petition[s] for
post-conviction relief shall be dismissed unless . . . [they are] timely under Rule
3:22-12(a)(2)[.]" State v. Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018)
(fourth alteration in original) (quoting R. 3:22-4(b)).
Rule 3:22-12(a)(2) imposes strict time limits on the filing of a second PCR
petition, requiring a defendant to file within one year of the latest of three
defined events: the date a new constitutional right is recognized by the United
States Supreme Court or our Supreme Court and is retroactive to cases on
collateral review; the date the factual predicate for the claim is first discovered,
if through reasonable diligence it could not have been discovered earlier; and
the date of the denial of a prior PCR petition where it is claimed prior PCR
counsel was ineffective. Rule 3:22-12(a)(2)(A)-(C). Significantly, the time bar
for second or subsequent petitions for PCR is not contingent on the entry of a
JOC.
Here, defendant's underlying claim is that his plea counsel was ineffective
by failing to fully explain the consequences of PSL. He asserted that factual
claim when he filed his first PCR petition in 2013, and therefore his second PCR
petition, which was filed in 2019, is untimely under Rule 3:22-12(a)(2)(b). That
factual claim also is barred under Rule 3:22-5. Even if we broadly read
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defendant's second PCR petition as alleging his first PCR counsel was
ineffective by failing to challenge the validity of the JOC, the second PCR
petition is untimely under Rule 3:22-12(a)(2)(c) because it was filed more than
a year after the 2014 dismissal of the first PCR petition. Finally, Rule 3:22-
12(a)(2)(a) is inapplicable because defendant does not rely on a new
constitutional right.
The time bar under Rule 3:22-12(a)(2) may not be ignored or relaxed.
Jackson, 454 N.J. Super. at 292-94; see also R. 1:3-4(c) ("Neither the parties nor
the court may . . . enlarge the time specified by . . . R. 3:22-12."). Because
defendant's second PCR petition was filed more than five years after the March
10, 2014 denial of his first petition, the latter petition was properly denied as
time barred. Additionally, since defendant's second PCR petition was properly
time barred, an evidentiary hearing on his application was not required. See
State v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013) ("If the court
perceives that holding an evidentiary hearing will not aid the court's analysis of
whether the defendant is entitled to post-conviction relief, . . . then an
evidentiary hearing need not be granted." (omission in original) (quoting State
v. Marshall, 148 N.J. 89, 158 (1997))). The remainder of defendant's arguments
lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
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Affirmed.
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