Opinion
DOCKET NO. A-0814-12T2
05-02-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DANILO ANGELES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Linda Mehling, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Steven Sciancalepore, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Leone.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 01-07-1469 and 01-12-2203.
Joseph E. Krakora, Public Defender, attorney for appellant (Linda Mehling, Designated Counsel, on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Steven Sciancalepore, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Danilo Angeles appeals from the denial of his petition for post-conviction relief (PCR). The PCR court found that the petition was untimely under Rule 3:22-12, and failed on the merits. We agree that the petition is untimely, and affirm.
I.
On March 15, 2001, defendant was arrested at a drug trafficking location during a search in which drugs and over $95,000 in cash were found. Defendant and others were charged with ten offenses under Indictment No. 01-07-1469, including first-degree possession with intent to distribute five ounces or more of methamphetamine within 1,000 feet of a school, second-degree conspiracy to distribute five ounces or more of methamphetamine, and other second and third-degree drug and weapons offenses.
On July 9, 2001, defendant was again arrested in a search of the same location. Defendant and others were charged under a second Indictment No. 01-12-2203 with committing five drug offenses, including third-degree possession with intent to distribute methamphetamine within 1,000 feet of a school in violation of N.J.S.A. 2C:35-7.1 (the PWID offense).
On January 22, 2002, defendant pled guilty under the first indictment to an amended charge of third-degree conspiracy in violation of N.J.S.A. 2C:5-2 to distribute less than half an ounce of methamphetamine contrary to N.J.S.A. 2C:35-5(a)(1) and -5(b)(9)(b). He simultaneously pled guilty under the second indictment to the PWID offense. The other thirteen charges were dismissed pursuant to a plea bargain.
Prior to pleading guilty, defendant reviewed and signed a plea form. The form's Question 17 asked: "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty?" Defendant, a citizen of the Philippines, answered "yes." In his plea colloquy, he affirmed that before he signed the form, he went over "each and every word" with his counsel, he understood all the questions, and he gave truthful answers.
At the March 22, 2002 sentencing, defendant submitted a letter seeking "better time." The judge found no basis to allow defendant to withdraw his plea. Pursuant to the plea bargain, the judge imposed a sentence of three years in prison with nine months of parole ineligibility for the PWID offense. The judge also imposed a three-year sentence for the conspiracy offense to run concurrently.
Defendant appealed his sentence. We affirmed. State v. Angeles, No. A-0899-02 (App. Div. Apr. 29, 2003), certif. denied, 178 N.J. 29 (Oct. 2, 2003).
Meanwhile, in July 2002, federal immigration authorities issued a notice to appear to defendant and placed him in removal proceedings. An immigration judge terminated proceedings on December 23, 2002, due to defendant's pending appeal.
"'Removal' is the current statutory term used for what was known in the past as 'deportation.'" State v. Gaitan, 209 N.J. 339, 345 n.1 (2012).
On July 6, 2009, defendant was sentenced for possession of methamphetamine, in violation of N.J.S.A. 2C:35-10(a)(1). On October 15, 2009, federal immigration authorities issued a new notice to appear to defendant, citing both his 2002 conspiracy conviction and his 2009 possession conviction.
On or after September 21, 2011, defendant filed a PCR petition related to his 2002 convictions. In his supporting affidavit, he alleged that his plea counsel "failed to inform" him that pleading guilty to the conspiracy and PWID offenses "would result in deportation" because they were aggravated felonies under 8 U.S.C.A. § 1227(a)(2)(A)(iii) and (B)(i). See 8 U.S.C.A. § 1101(a)(43)(B), (U). Defendant also alleged that his counsel did not discuss with him the "immigration consequences of the plea," and that counsel and the court "never mentioned" the immigration consequences. Defendant further alleged that counsel "did not advise [him] to consult with an immigration attorney," and "fail[ed] to advise" him about the availability of a judicial recommendation against deportation.
Defendant later filed a counseled, verified PCR petition dated April 27, 2012, alleging that plea "counsel failed to adequately advise [him] of the immigration consequences of his plea of guilty." Defendant certified that he was never "able to discuss the effect [his] pleas would have on [his] immigration status" with plea counsel, and that he submitted the letter at his sentencing because he believed "a lesser plea and lesser sentence would not affect [his] immigration status."
On May 2, 2012, the same judge who had taken defendant's plea issued a written opinion and order denying defendant's PCR petition. Defendant appeals, arguing:
THE TRIAL COURT'S REFUSAL TO GRANT AN EVIDENTIARY HEARING, EVEN THOUGH PETITIONER MADE A PRIMA FACIE SHOWING THAT HIS ATTORNEY ERRONEOUSLY TOLD HIM ONLY THAT HE MIGHT BE SUBJECT TO DEPORTATION, REQUIRES A REVERSAL AND REMAND.
We must hew to our standard of review. To show ineffective assistance of counsel, defendant must meet the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Fritz, 105 N.J. 42 (1987). "'First, the defendant must show that counsel's performance was deficient.'" State v. Taccetta, 200 N.J. 183, 193 (2009). "'Second, the defendant must show that the deficient performance prejudiced the defense.'" Ibid. We exercise de novo review over the PCR court's conclusions of law. State v. Nash, 212 N.J. 518, 540-41 (2013).
Post-conviction relief courts need not grant evidentiary hearings unless "'a defendant has presented a prima facie [case] in support of post-conviction relief.'" State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." Ibid.
Here, defendant cannot show a reasonable likelihood of success because his PCR petition is untimely. See State v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013). Rule 3:22-12(a)(1), now and when he filed his PCR petition, provides that
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."These time limitations shall not be relaxed, except as provided" in Rule 3:22-12. R. 3:22-12(c); See R. 1:3-4(c).
Defendant's petition is governed by this version of Rule 3:22-12, which the Supreme Court made effective February 1, 2010. E.g., Brewster, supra, 429 N.J. Super. at 398 & n.3. "[C]ourt rules 'are given retrospective application if vested rights are not thereby disturbed.'" Shimm v. Toys from the Attic, Inc., 375 N.J. Super. 300, 304-05 (App. Div. 2005) (quoting Feuchtbaum v. Constantini, 59 N.J. 167, 172 (1971)); see Kas Oriental Rugs, Inc. v. Ellman, 407 N.J. Super. 538, 549-52 (App. Div.), certif. denied, 200 N.J. 476 (2009). Here, defendant had no vested right preventing the Court from amending the rule's procedures for PCR petitions, particularly as he had not filed a petition until September 2011. See State v. Rose, 425 N.J. Super. 463, 468 (App. Div. 2012). Nor, as set forth below, is it manifestly unjust to apply this version of Rule 3:22-12. See James v. N.J. Mfrs. Ins. Co., 216 N.J. 552, 563 (2014).
In any event, the version of Rule 3:22-12 in force when defendant was sentenced similarly provided that no PCR "petition shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect. R. 3:22-12 (1994). Defendants unable to meet the rule's requirements had to prove "exceptional circumstances" by showing that "'adherence to it would result in an injustice.'" State v. Mitchell, 126 N.J. 565, 578-80 (1992) (quoting Rule 1:1-2 (1991)).
Defendant's judgment of conviction was entered on March 22, 2002, meaning his PCR petition had to be filed by March 22, 2007 to comply with Rule 3:22-12's five-year limit. Defendant did not file his petition until September 2011, four and one-half years after the five-year time limit expired. Defendant thus must allege "facts showing that the delay beyond said time was due to defendant's excusable neglect." R. 3:22-12(a)(1).
Defendant argued to the PCR court that he did not learn of the removal consequences of his 2002 pleas until 2009 because the 2002 removal proceedings were dismissed. However, his own certification contradicted that argument by stating that he was aware his 2002 pleas could have removal consequences when he submitted his letter at the 2002 sentencing. Moreover, as the PCR court noted, federal immigration authorities notified defendant of those removal consequences when they issued the notice to appear in July 2002.
On appeal, defendant instead claims excusable neglect because he was not aware of his rights until the 2009 decision in State v. Nuñez-Valdéz, 200 N.J. 129 (2009). There, the Supreme Court ruled that "counsel renders ineffective assistance if he or she provides false or misleading [material] information concerning the deportation consequences of a plea of guilty." Id. at 138-40, 143. However, "the rule announced in Nuñez-Valdéz was not a new rule of law in New Jersey's appellate case law." State v. Gaitan, 209 N.J. 339, 352, 375 (2012) (citing State v. Garcia, 320 N.J. Super. 332, 339-40 (App. Div. 1999), and State v. Chung, 210 N.J. Super. 427, 434-35 (App. Div. 1986)), cert. denied, _ U.S. _, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). Instead, "Nuñez-Valdéz only recognized a preexisting . . . duty on counsel to avoid rendering an inaccurate affirmative prognosis of a defendant's deportation consequences[.]" State v. Barros, 425 N.J. Super. 329, 332 (App. Div. 2012).
Here, "we reject the notion that defendant did not appreciate his procedural rights" until 2009. See State v. Milne, 178 N.J. 486, 494 (2004 ). A PCR petition "could have been pursued well before" 2009 based on information that "should have been known to defendant many years ago," but he failed to "avail himself of it in a diligent fashion." Ibid. Moreover, defendant does not explain why he waited to file his petition for another two years after Nuñez-Valdéz was decided in 2009. See id. at 494-95; see also Brewster, 429 N.J. Super. at 399-400 & n.4.
"Ignorance 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) (citing State v. Murray, 162 N.J. 240, 246 (2000)), aff'd o.b., 365 N.J. Super. 82, 84 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
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Accordingly, we agree with the PCR court that defendant has failed to show excusable neglect, and defendant's claim is barred under Rule 3:22-12(a)(1).
The Supreme Court has consistently "recognized the importance of adhering to this procedural bar." State v. Goodwin, 173 N.J. 583, 594 (2002). "'As time passes after conviction, the difficulties associated with a fair and accurate reassessment of the critical events multiply. . . . Moreover, the Rule serves to respect the need for achieving finality of judgments and to allay the uncertainty associated with an unlimited possibility of relitigation.'" Ibid. (quoting Mitchell, supra, 126 N.J. at 575-76).
Furthermore, defendant has failed to show an injustice, let alone a fundamental injustice. Nowhere does he attest that plea counsel gave him "false or misleading information concerning the deportation consequences of a plea of guilty." Nuñez-Valdéz, supra, 200 N.J. at 138. He thus has no valid claim under Nuñez-Valdéz.
Defendant's affidavit and certification in the PCR court instead alleged that plea counsel failed to provide advice concerning the removal consequences. Although the United States Supreme Court has recently held that such advice is required, Padilla v. Kentucky, 559 U.S. 356, 369, 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284, 295 (2010), that ruling is not retroactive to convictions that were "final" when Padilla was decided on March 31, 2010, Chaidez v. United States, _, U.S. _, _, 133 S. Ct. 1103, 1105, 1113, 185 L. Ed. 2d 149, 154, 162 (2013); Gaitan, supra, 209 N.J. at 372. Defendant's convictions became final in 2003 when his direct appeal ended. See Brewster, supra, 429 N.J. Super. at 394.
Defendant now argues that "it is apparent from Question 17 on the guilty plea forms that [his] attorney told him that deportation could be a consequence of his guilty pleas." That advice was neither false nor misleading. Gaitan, supra, 209 N.J. at 375 (concluding that "following the then-existing plea form" was not "misadvice"); See Brewster, supra, 429 N.J. Super. at 397. We have rejected a "defendant's contention that Question 17 on the plea form used in 1998 was 'a misstatement of federal law' because it did not inform him that he was 'subject to mandatory deportation.'" Brewster, supra, 429 N.J. Super. at 397. Defendant, "at a minimum, was put on notice of the issue of potential immigration consequences through the plea form, which distinguishes this matter from Nuñez-Valdéz, where the defendant received false and affirmatively misleading information." Gaitan, supra, 209 N.J. at 374; cf. Garcia, supra, 320 N.J. Super. at 336, 341 (remanding where the defendant answered Question 17 "N/A").
Further, defendant's 2002 removal proceeding was dismissed and he was allowed to remain in the United States, indicating his removal was not the "certainty" he now claims. It was only when he committed a new crime in 2009 that new removal proceedings were initiated, based in part on the 2009 conviction. As the PCR court noted, defendant's commission of and guilty plea to this deportable offense belies his claim that his 2002 plea caused fundamental injustice.
We note the Supreme Court has ruled that "[t]o succeed on a fundamental-injustice claim" under Rule 3:22-4(a)(2), a "petitioner must make some showing that an error or violation played a role in the determination of guilt." Nash, supra, 212 N.J. at 546-47 (quotation marks omitted). Here, "defendant has not claimed he was innocent of the charges" to which he pled guilty in 2002. Brewster, supra, 429 N.J. Super. at 400-01. Absent some basis to believe that he could have avoided conviction and its removal consequences, he has not shown a fundamental injustice.
Finally, we note that defendant was aware in 2002 that removal was a possibility, but he failed to file his PCR petition until 2011. See Mitchell, supra, 126 N.J. at 580 (instructing that a "court should consider the extent and cause of the delay . . . in determining whether there has been an 'injustice' sufficient to relax the time limits"). "Absent compelling, extenuating circumstances, the burden of justifying a petition filed after the five-year period will increase with the extent of the delay." Ibid. Here, defendant has no valid reasons for his "significant" nine-year delay. See State v. Dugan, 289 N.J. Super. 15, 21 (App. Div.), certif. denied, 145 N.J. 373 (1996). He thus has failed to show the "exceptional circumstances" necessary to show injustice. Brewster, supra, 429 N.J. Super. at 400.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION