Opinion
DOCKET NO. A-4393-12T1
12-21-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SHANNON HAMILTON, a/k/a SHANNON RONTYAL HAMILTON, SHANNON RONALD HAMILTON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer L. Gottschalk, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Deepa S. Y. Jacobs, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Guadagno. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 96-09-1274. Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer L. Gottschalk, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Deepa S. Y. Jacobs, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Shannon Hamilton appeals from the January 14, 2013 decision of the Law Division denying his petition for post-conviction relief (PCR) without a hearing. We affirm.
I.
In January 1998, defendant pleaded guilty to second-degree possession of cocaine, a controlled dangerous substance (CDS), with intent to distribute in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2), and third-degree possession of methadone, a CDS, in violation of N.J.S.A. 2C:35-10a(1). Defendant was sentenced pursuant to a negotiated plea agreement to seven years imprisonment on the cocaine-related charge and four years imprisonment on the methadone-related charge, to run concurrently. Defendant was also ordered to pay $3350 in fees and penalties and had his driving privileges revoked for twenty-four months.
In May 2012, defendant filed a pro se PCR petition alleging ineffective assistance of counsel. Counsel was appointed to supplement defendant's application and argument was heard before Judge Eugene Austin on January 14, 2013. That same day, Judge Austin denied the petition as untimely. No evidentiary hearing was held. This appeal followed.
II.
On appeal, defendants present the following issues for our consideration:
POINT ONEFor the reasons explained below, we are unpersuaded by these arguments and affirm.
THE TRIAL COURT ERRED BY RULING THAT DEFENDANT'S PCR CLAIMS WERE TIME-BARRED.
POINT TWO
THE PCR COURT ERRED WHEN IT DENIED DEFENDANT AN EVIDENTIARY HEARING ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
Typically, we review the PCR court's findings of fact under a clear error standard and conclusions of law under a de novo standard. See State v. Harris, 181 N.J. 391, 420 (2004). However, where, as in this case, "no evidentiary hearing has been held, we 'may exercise de novo review over the factual inferences drawn from the documentary record by the PCR judge.'" State v. Reevey, 417 N.J. Super. 134, 146-47 (App. Div. 2010), cert. denied, 206 N.J. 64 (2011) (quoting Harris, supra, 181 N.J. at 420).
A PCR petition must be filed no more than five years after the date judgement of conviction was entered unless it alleges facts showing that the late filing is the result of excusable neglect "and that there is a reasonable probability that . . . enforcement of the time-bar would result in a fundamental injustice." R. 3:22-12(a)(1). This "time-bar should only be relaxed under exceptional circumstances." State v. Cann, 342 N.J. Super. 93, 102 (App. Div. 2001), cert. denied, 170 N.J. 208 (2001) (citing State v. Afanador, 151 N.J. 41, 52 (1997). In making this determination, we "should consider 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." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009) (quoting Afanador, supra, 151 N.J. at 52).
Defendant fails to demonstrate that his failure to file a timely PCR petition was due to excusable neglect. Although it is not made explicit in defendant's brief, he appears to argue that his late filing is attributable to counsel's failure to inform him of the collateral consequences of his plea. He contends that counsel had a duty to inform him that his guilty plea would make him subject to enhanced sentencing in future federal prosecutions, and would have an impact upon his ability to vote, own firearms, and hold certain kinds of employment. According to defendant, he only discovered counsel's failure several years later when he was made subject to enhanced sentencing in a separate federal criminal trial.
In support of his argument, defendant cites Padilla v. Kentucky, which holds that an attorney has an affirmative constitutional duty to inform a non-citizen client of the immigration consequences of a guilty plea. 559 U.S. 356, 366, 130 S. Ct. 1473, 1482, 176 L. Ed. 2d 284, 294 (2010). However, defendant's reliance on Padilla is misplaced because, in New Jersey, the affirmative duty imposed by that decision does not apply retroactively to cases before 2010. See State v. Gaitan, 209 N.J. 339, 372 (2012). Indeed, we have previously held that there is "no constitutional requirement that a defense attorney must advise a client or defendant that if he or she commits future criminal offenses . . . there may be adverse consequences by way of enhancement of the penalty." State v. Wilkerson, 321 N.J. Super. 219, 223 (App. Div. 1999), cert. denied, 162 N.J. 128 (1999).
The thirteen-year delay between the entry of conviction and filing of a PCR in this case is not attributable to any deficiency in counsel's performance. Nor has defendant demonstrated that a fundamental injustice will result from application of the five-year time-bar. We therefore conclude that the trial court correctly dismissed defendant's PCR petition as time-barred under Rule 3:22-12(a)(1).
The PCR judge, in the interest of completeness, also addressed the substantive merits of defendant's claim for ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Upon reviewing the plea colloquy, the PCR judge determined that defendant "made his plea knowingly [and] voluntarily." He concluded that an evidentiary hearing was not required because defendant "has not established a prima facie case for ineffectiveness of counsel." We agree with the PCR court's conclusion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION