Opinion
DOCKET NO. A-2395-14T3
04-26-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSE TORRES, Defendant-Appellant.
Eric M. Mark argued the cause for appellant. Mario C. Formica, Chief Assistant Prosecutor, argued the cause for respondent (James P. McClain, Atlantic County Prosecutor, attorney; Mr. Formica, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Ostrer. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-06-1370. Eric M. Mark argued the cause for appellant. Mario C. Formica, Chief Assistant Prosecutor, argued the cause for respondent (James P. McClain, Atlantic County Prosecutor, attorney; Mr. Formica, of counsel and on the brief). PER CURIAM
Defendant Jose Torres appeals from the trial court's order denying his petition for post-conviction relief (PCR). In September 2014, faced with removal from the United States, defendant collaterally challenged his nine-year-old judgment of conviction (JOC), pursuant to a guilty plea, of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1). Judge Mark Sandson denied the petition on the ground that it was time-barred, as defendant filed it more than five years after the JOC, and failed to establish excusable neglect or a "reasonable probability" that he would suffer a "fundamental injustice" if the time-bar were enforced. See R. 3:22-12(a)(1). Having considered defendant's arguments in light of the facts and applicable principles of law, we affirm.
Defendant was indicted and charged with possessing cocaine, N.J.S.A. 2C:35-10(a)(1), and doing so with intent to distribute, N.J.S.A. 2C:35-5(a)(1). The charges arose from a traffic stop in May 2005, during which a police officer saw what he believed was cocaine when defendant opened the center console. The officer seized the bag, which included six smaller bags that he believed were used for packaging. The cocaine weighed 10.8 grams.
Defendant had no prior convictions or adjudications of delinquency. He was held in lieu of $5000 bail. He pleaded guilty on August 4, 2005. Under the plea agreement, the State agreed to dismiss the intent-to-distribute charge, and recommend probation with credit for time served and ROR bail pending sentencing. According to the plea form, defendant acknowledged that if he is not a U.S. citizen or national, he "may be deported by virtue of [his] plea of guilty[.]" The judge noted in his statement of reasons for the sentence that defendant was an addict in denial. Probation was conditioned on drug treatment, among other conditions. The JOC stated that immigration officials were to be notified of defendant's conviction.
Defendant was charged with violating probation in May 2006. The statement of charges (SOC) alleged he had been a compliant probationer for several months until he suddenly stopped reporting to mandatory drug treatment. The SOC alleged that, as a condition of probation, he was required to seek legalization of his immigration status, but had failed to do so. The SOC apparently was not served on defendant, and a warrant for his arrest was issued. He was arrested May 23, 2014, and on June 6, 2014, pleaded guilty to the violation of probation (VOP). Judge Sandson ordered that probation be terminated without improvement.
The SOC asserted that this condition was imposed by the sentencing court; however, the JOC does not include this condition.
The record does not include the transcript of the VOP hearing.
Immigration authorities subsequently commenced removal proceedings. By that time, defendant had married and become a father of two girls, and achieved stable employment as a foreman for a landscaping company. In September 2014, defendant's counsel filed a "certification of attorney for post conviction relief to vacate prior guilty plea to violation of 2C:35-10(a)." The record does not include a verification from defendant, or any other certification or affidavit from him. Although the court first considered and denied defendant's request to withdraw his plea pursuant to State v. Slater, 198 N.J. 145 (2009), the record does not include the transcript of the hearing on that motion or the order. Sometime thereafter, defendant sought PCR based on ineffective assistance of counsel pursuant to Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
If defendant filed anything other than the attorney's certification in connection with either application, it is not included in the record before us.
Counsel asserted in his certification that defendant's plea counsel (1) failed to file a motion to suppress; (2) failed to inform defendant that he would be deported; (3) failed to seek defendant's admission to pre-trial intervention (PTI); and (4) advised defendant to plead guilty, even though the State had not yet produced a lab report confirming that the substance defendant possessed was cocaine. Counsel asserted the delay in seeking PCR was excusable because "defendant only became aware of the prejudicial effects of his guilty plea after deportation proceedings against him commenced in 2014." Counsel further alleged that had defendant known in 2005 that he could enter PTI, he would have sought PCR earlier. Counsel alleged that plea counsel "erroneously advised defendant that he was not eligible to apply for PTI and did not explain the program or its benefits to him."
Judge Sandson denied the PCR petition in January 2015 without an evidentiary hearing. The judge held that the petition was time-barred under Rule 3:22-12, as it was filed more than five years after the JOC and defendant failed to establish excusable neglect for the late filing. The judge noted that defendant was likely aware of the immigration consequences of his plea long before removal proceedings were commenced, as the plea form so advised him. The judge held that inaccurate advice at the time of the plea does not establish excusable neglect, citing State v. Brewster, 429 N.J. Super. 387, 400 (App. Div. 2013). The judge also distinguished cases relaxing the five-year deadline for filing PCR petitions in DWI convictions, which are not subject to the time limitations in Rule 3:22-12.
Referring to the transcript of the plea hearing, the court noted that the judge did not orally inform defendant of the immigration consequences. The plea transcript is not included in the record before us. --------
This appeal followed. Defendant raises the following points on appeal.
I. Mr. Torres's counsel was ineffective because he did not apply Mr. Torres to PTI, pursue meritorious defenses, or advise him of the immigration consequences of his plea.
A. Failure to apply to PTI.
B. Failure to pursue defenses or obtain lab reports.
C. Cumulative Effects.
II. The Defendant's petition is not time-barred because the procedural bar is not absolute and Mr. Torres can show excusable neglect and fundamental injustice.
1. Petitioner's Failure to Timely File Was Due to Excusable Neglect.
2. Enforcement of the Time Bar Would Result in a Fundamental Injustice.
We affirm substantially for the reasons set forth in Judge Sandson's cogent oral opinion. We add the following comments.
First, defendant failed to file a verification or other competent evidence to support his claim of ineffective assistance of counsel. Rule 3:22-8 requires that a petition "shall be verified by defendant and shall set forth with specificity the facts upon which the claim for relief is based[.]" His PCR counsel lacks personal knowledge for his allegations about conversations between defendant and plea counsel regarding PTI, and about the reasons for defendant's delay in filing his petition. See R. 1:6-6 (certifications must be based on personal knowledge as to which affiant is competent to testify); Pressler & Verniero, Current N.J. Court Rules, comment on R. 1:6-6 (2016) ("Affidavits by attorneys of facts not based on their personal knowledge but related to them by and within the primary knowledge of their clients constitute objectionable hearsay.").
Second, even assuming the truth of counsel's allegations, he failed to establish excusable neglect and a fundamental injustice. We addressed a similar argument in Brewster, supra, and held that allegedly deficient advice does not equate with excusable neglect, for if it did, "long-convicted defendants might routinely claim they did not learn about the deficiencies in counsel's advice on a variety of topics until after the five-year limitation period had run." 429 N.J. Super. at 400 (internal citation omitted). Nor does defendant meet the "factual predicate" exception, which permits a second or subsequent petition to be filed within one year of when the "factual predicate for the relief sought was discovered[.]" R. 3:22-12(a)(2)(B). Even if the "factual predicate" exception applies to first petitions, commencement of removal proceedings is not such a "factual predicate" when the defendant was previously advised that he faced a risk of deportation. See Brewster, supra, 429 N.J. Super. at 399 n.4, 399-400 (commencement of removal proceedings not a "factual predicate" because defendant was advised by an attorney three years before filing his petition that his conviction "could be a problem").
Finally, defendant has not demonstrated a "fundamental injustice" if the five-year bar is enforced. Our Supreme Court has held that a "fundamental injustice" requires "some showing that an error or violation played a role in the determination of guilt." State v. Nash, 212 N.J. 518, 547 (2013) (internal quotation marks and citation omitted). Defendant's claim pertaining to immigration consequences does not implicate his guilt of the charges. See Brewster, supra, 429 N.J. Super. at 401 (no "fundamental injustice" where defendant's "knowledge of the risk of deportation did not affect the truth-finding function of the court"). Nor does his attorney's failure to apply for PTI or file a motion to suppress implicate the truth-finding function. While the absence of a lab report may pertain to his guilt, defendant admitted he possessed cocaine in his presentence interview. Also, the arresting officer's report stated that a field test of the white powdery substance he seized was positive for cocaine. Thus, there is no record evidence to question defendant's guilt of the possession charge.
In sum, defendant's petition was filed beyond the five-year deadline, and he failed to establish excusable neglect and a fundamental injustice. Accordingly, his petition was time-barred.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION