Opinion
DOCKET NO. A-4804-12T1
09-29-2014
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Carroll. On appeal from Superior Court of New Jersey, Law Division, Essex County, Accusation No. 03-07-0682. Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Gavin Burke appeals from a March 19, 2013 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Defendant was born in Guyana and lived in the United States since age seven. In 2003, he was charged in a four-count Essex County accusation with third-degree possession of marijuana with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count one); third-degree conspiracy, N.J.S.A. 2C:5-2 (count two); fourth-degree possession of marijuana, N.J.S.A. 2C:35-10 (count three); and third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5 (count four). Pursuant to a plea agreement, defendant pled guilty to count three, and the State agreed to dismiss the remaining charges, and recommend a non-custodial sentence.
During the plea colloquy, the judge did not question defendant about the possibility that he might be deported. The risk of deportation, however, was addressed in a written plea form signed by defendant as part of the record of his guilty plea. Question number 17 on the plea form 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 circled "N/A[,]" meaning "not applicable."
On February 27, 2004, defendant was sentenced to a three-year term of probation, ordered to complete an out-patient drug program, and assessed applicable fees and penalties. Defendant filed no direct appeal.
We note that the pre-sentence report was not before the PCR court, nor is it part of the record on appeal. However, both the plea and sentencing transcripts indicate that this constituted defendant's second indictable conviction.
In December 2005, defendant was charged with violating probation. On April 5, 2007, he was convicted of the probation violation, and sentenced to 364 days in the Essex County Jail. Again no direct appeal was taken.
In April 2012, defendant filed a petition for PCR. In a supporting certification, defendant indicated that on July 25, 2011, he had been detained by the Bureau of Immigration and Customs Enforcement (ICE), and was awaiting deportation to Guyana. He alleged he was denied the effective assistance of counsel because his plea counsel failed to advise him of the immigration consequences of his plea. Defendant also alleged that he did not file for PCR within five years of being sentenced because he did not know he would be deported until he was detained on July 25, 2011.
The court issued an oral opinion and order denying the petition following argument on March 19, 2013. The court found that the petition was time-barred because it was not filed within five years from the date of conviction. It also found no reason to relax the filing period, and that no fundamental injustice would thereby result. On the merits, the court noted that defendant did not claim to have been misadvised of the deportation consequences of his guilty plea. Plea counsel's alleged failure to provide any advice that deportation was a mandatory consequence of his conviction did not amount to ineffective assistance of counsel at the time of defendant's conviction and sentence. The court concluded that since defendant failed to make a prima facie showing of ineffective assistance, no evidentiary hearing was required. This appeal ensued.
At oral argument PCR counsel advised the court that defendant had already been deported.
On appeal, defendant raises the following arguments:
POINT IWe are not persuaded by these arguments. Defendant's submissions did not make a prima facie factual showing of ineffective assistance of counsel. In addition, an evidentiary hearing would not affect the untimely filing of his PCR petition.
THE DEFENDANT PROVIDED A FACTUAL BASIS FOR A FINDING OF EXCUSABLE NEGLECT AND IN THE INTERESTS OF JUSTICE SHOULD HAVE BEEN PERMITTED TO PROCEED WITH HIS SUBSTANTIVE POST-CONVICTION RELIEF CLAIMS.
POINT II
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE LACK OF KNOWLEDGE ABOUT THE PENAL AND MATERIAL CONSEQUENCES OF THE GUILTY PLEA.
POINT III
THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION.
In his petition, defendant argued he was entitled to PCR relief because plea counsel failed to advise him of the deportation consequences of his guilty plea. In Padilla v. Kentucky, 559 U.S. 356, 388, 130 S. Ct. 1473, 1494, 176 L. Ed. 2d 284, 310 (2010), the Supreme Court held that the Sixth Amendment requires an attorney to provide advice about the risk of deportation arising from a guilty plea. In State v. Gaitan, 209 N.J. 339, 372 (2012), however, our Supreme Court held that Padilla could not be applied retroactively to defendants whose convictions had already become final prior to that decision. Thus, for pre-Padilla cases, trial counsel is not ineffective so long as he or she does not give the defendant "wrong or inaccurate information" on the deportation consequences of the plea. Gaitan, supra, 209 N.J. at 361-62. Here, defendant makes no claim that he was misadvised.
We caution that had defendant claimed to have been misadvised, the result here may well have been different, given defendant's "N/A" response to question 17 on the plea form. See, e.g., State v. Garcia, 320 N.J. Super. 332, 340 (App. Div. 1999); State v. Vieira, 334 N.J. Super. 681, 688 (Law Div. 2000).
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We also agree with the PCR court that defendant's petition, filed more than eight years after his conviction, was time-barred. Rule 3:22-12(a)(1) sets a five-year time limitation for the filing of a PCR petition, unless the petition itself shows excusable neglect for the late filing and also fundamental injustice if defendant's claims are not considered on their merits. We disagree with defendant that the five-year limitation period does not apply in the circumstances of this case.
Defendant was informed by means of question 17 on the plea form that his conviction might result in his deportation. Even if his plea attorney gave him incorrect advice, he was at the very least placed on notice that deportation might be a consequence of his guilty plea. He had five years from the time of his conviction to discover any fault in his attorney's advice. He did not do so until eight years later.
The New Jersey Supreme Court has required a showing of "compelling, extenuating circumstances" or, alternatively, "exceptional circumstances," to relax the five-year time limitation for a PCR petition. See State v. Milne, 178 N.J. 486, 492 (2004); State v. Goodwin, 173 N.J. 583, 594 (2002); State v. Murray, 162 N.J. 240, 245-46 (2000); State v. Mitchell, 126 N.J. 565, 580 (1992). Where the deficient representation of counsel affected "a determination of guilt or otherwise wrought a miscarriage of justice," a procedural rule otherwise barring post-conviction relief may be overlooked to avoid a fundamental injustice. See State v. Nash, 212 N.J. 518, 546 (2013) (quoting Mitchell, supra, 126 N.J. at 587). To succeed on a claim of fundamental injustice, the petitioner must show that the error "played a role in the determination of guilt." Nash, supra, 212 N.J. at 547. (citation omitted).
Defendant claims that had he known he would be deported, he "never would have pled guilty. I would have asked my attorney to work out a plea to an offense where there was no chance that I would be deported or would have gone to trial." Notably, he does not claim he was innocent of the charges. Nor does he suggest he had any defense to the charges, or any rational prospect of avoiding conviction. The record does not suggest any ground for suppressing the marijuana he admitted possessing. Moreover, there is no demonstrable possibility of a better plea offer had he rejected the State's non-custodial offer.
In short, defendant's knowledge of the risk of deportation did not affect the truth-finding function of the court when it accepted his guilty plea. There is no compelling reason to ease the time limitation in the absence of a showing of excusable neglect for filing the PCR petition long after the events that led to defendant's conviction. We also do not find defendant would suffer a fundamental injustice by enforcement of the five-year ban, as defendant's substantive claim lacks merit. The PCR court did not err in concluding that defendant's PCR petition was untimely filed.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION