Opinion
DOCKET NO. A-0295-15T3
02-06-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BIGENSTON FLOREAL, a/k/a BIGENTON FLOREAL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Erin M. Campbell, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Alvarez and Accurso. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-02-0306. Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Erin M. Campbell, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Bigenston Floreal, a citizen of Haiti and a permanent resident of the United States since 1994, appeals from the dismissal of his petition for post-conviction relief (PCR), contending he established a prima facie case of ineffective assistance of counsel requiring an evidentiary hearing. Because the trial judge correctly determined the evidence insufficient to sustain defendant's burden, we affirm.
In order to resolve an indictment charging defendant with two counts of possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1); two counts of possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3); two counts of possession of a controlled dangerous substance with intent to distribute within a 1000 feet of a school, N.J.S.A. 2C:35-7; two counts of possession of a controlled dangerous substance with intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1; and possession of a scanner during the commission of a crime, N.J.S.A. 2C:33-22, he pled guilty in May 2009 to one count of third-degree simple possession and was sentenced to three hundred days in the county jail and three years' probation concurrent to the probationary term he was then serving. Defendant did not file a direct appeal.
After Immigration and Customs Enforcement instituted removal proceedings against him, defendant filed a pro se PCR petition in 2014, two months beyond the five-year time bar provided by Rule 3:22-12(a)(1). He contended he received ineffective assistance in connection with his 2009 plea as his lawyer "never fully advised" him of the plea's deportation consequences.
After hearing the argument of counsel, the PCR judge issued a written opinion declining to find the petition time-barred but denying it on the merits on the basis that defendant had failed to establish a prima facie claim for relief. See State v. Preciose, 129 N.J. 451, 462-64 (1992). Specifically, finding "it [was] unclear when Petitioner received notice of the removal proceedings against him" and his petition was only "just outside the five-year window" the judge found excusable neglect, "relaxed" Rule 3:22-12(a)(1), and considered the petition on its merits.
Measuring defendant's claims against the two-prong Strickland standard, the judge found absolutely no evidence that defendant was affirmatively misinformed about the consequences of his plea, see State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009), and "simply no questions of fact surrounding his claim that warrant exploration in an evidentiary hearing." See State v. Gaitan, 209 N.J. 339, 379 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).
The judge determined defendant's statement in his petition that "my attorney never fully advised me of [the risk of deportation,] instead he just told me to get an immigration lawyer because he does not do immigration," "amount to nothing more than naked assertions of non-advice, not misadvice." The judge further noted defendant answered "yes" to former question 17 on the plea form confirming he understood that his guilty plea might result in his deportation, and then engaged in a lengthy colloquy with Judge Kenny, who took his plea, about its immigration consequences.
In that colloquy, Judge Kenny explained to defendant that even though he had been a legal resident for fifteen years, he could still be deported because he was not a United States citizen. When defendant told the court he understood that, Judge Kenny continued:
Okay. And just because you weren't deported the last time, doesn't mean that they won't come after you this time. I actually have, you know, seen that happen. Okay? And if you are deported by virtue of your guilty plea, that will not serve as a basis to come back here and ask me to take your plea back, because I'm warning you that this could happen. Do you understand?
When defendant said that he did, his plea counsel asked if he had understood "what the judge meant." When defendant responded that he had, his counsel told him to explain what he had heard, prompting defendant to reply, "She's saying that I can't take the plea back if I'm about to [be] deported."
The PCR judge concluded that defendant's assertions that he was affirmatively misinformed as to the immigration consequences of his plea were belied by the record, which established beyond question that "plea counsel not only adequately advised Petitioner of the possible immigration consequences of his plea but also properly refrained from giving Petitioner affirmative misadvice as to the immigration consequences."
Defendant appeals, raising a single issue:
DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING BECAUSE HIS PLEA COUNSEL WAS INEFFECTIVE IN FAILING TO EXPLAIN TO HIM THE IMMIGRATION CONSEQUENCES OF HIS GUILTY PLEA.
We reject that claim as unworthy of discussion in a written opinion, R. 2:11-3(e)(2). Because we affirm the dismissal of defendant's petition without an evidentiary hearing substantially for the reasons expressed by Judge Young in his July 7, 2015 written decision, we need not consider whether the court correctly concluded the claim was not time-barred. See Pressler & Verniero, Current N.J. Court Rules, comment 3 on R. 3:22-12(c) (2013) (noting the 2009 revision of the post-conviction rules made the time limitations for a first petition non-relaxable unless the petition "alleges facts showing that the delay . . . 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"); State v. Mitchell, 126 N.J. 565, 576-77 (1992) (holding defendant alleging excusable neglect must include facts supporting the claim in the petition itself).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).