Opinion
DOCKET NO. A-5672-11T4
07-28-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LEELA KPORLOR, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Harris and Fasciale. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 97-06-1066. Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Leela Kporlor appeals from the July 3, 2012 Law Division order denying his application for post-conviction relief (PCR). We affirm.
I.
Pursuant to a December 22, 1997 plea arrangement, Kporlor pled guilty to second-degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(2), and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). He was sentenced on March 27, 1998, to an aggregate term of five years' imprisonment to be served concurrently with another sentence imposed in the Mercer vicinage.
Kporlor did not appeal from the judgment of conviction and sentence. Instead, more than a decade later, Kporlor filed an application for PCR to allow him to withdraw his previous guilty plea claiming that his plea counsel was ineffective for providing affirmative misadvice regarding the immigration consequences of the conviction. Additionally, Kporlor asserted that the only advice he received concerning the consequences of pleading guilty was when he was detained by Immigration and Customs Enforcement officers in 2011.
A hearing was conducted by Judge Eugene H. Austin on June 25, 2012, after which post-conviction relief was denied. The judge found that Kporlor failed to demonstrate a prima facie case of ineffective assistance of counsel under the two-factor test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Judge Austin recognized that because Kporlor raised the issue of defective advice with respect to immigration consequences, the court was guided by Padilla v. Kentucky, 559 U.S. 356, 369, 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284, 295 (2010) and State v. Gaitan, 209 N.J. 339, 352, 375 (2012). Accordingly, because Kporlor pled guilty in 1997, post-conviction relief for such alleged ineffective assistance of counsel was unavailable. This appeal followed.
On appeal, Kporlor raises the following issue for our consideration:
POINT I: THE COURT ERRED IN DENYING THE PCR WITHOUT AN EVIDENTIARY HEARING ON WHETHER DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY GAVE HIM MISLEADING LEGAL ADVICE REGARDING THE IMMIGRATION CONSEQUENCES OF HIS PLEA.We find no merit in this argument.
II.
To show ineffective assistance of counsel, defendant must meet the two-pronged test of Strickland 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, Kporlor 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) provides that
no petition shall be filed 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).
Kporlor's judgment of conviction was entered on March 27, 1998, which required his PCR petition to be filed by March 27, 2003 to comply with Rule 3:22-12's five-year limit. Kporlor did not file his petition until more than nine years after the five-year time limit expired. Thus, Kporlor must allege "facts showing that the delay beyond said time was due to defendant's excusable neglect." R. 3:22-12(a)(1). He has failed to do so other than by making oblique references to his "woeful[] unfamiliar[ity] with this country's customs and practices," despite residing in the United States since 1993.
Here, we reject the notion that Kporlor did not appreciate his procedural rights until 2011. See State v. Milne, 178 N.J. 486, 494 (2004). "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). A PCR petition "could have been pursued well before" 2011 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. Kporlor has failed to show excusable neglect, and his tardy 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 State v. Mitchell, 126 N.J. 565, 575-76 (1992)). "Absent compelling, extenuating circumstances, the burden of justifying a petition filed after the five-year period will increase with the extent of the delay." Id. at 580. Here, Kporlor has no valid reasons for his 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