STATE OF NEW JERSEY v. LASZLO BEKE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3601-06T43601-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LASZLO BEKE,

Defendant-Appellant.

_________________________________________________

 

Submitted March 5, 2008 - Decided

Before Judges Axelrad and Payne.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Indictment No.

97-01-57.

Peter W. Till, attorney for appellant.

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Steven E. Braun, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Laszlo Beke, a Hungarian national, filed a petition for post-conviction relief (PCR) eight years after sentencing, contending that he should be permitted to withdraw his guilty plea because he had been inadequately informed of the immigration consequences of his plea. The petition was denied as untimely, and defendant has appealed.

On appeal, defendant presents the following arguments for our consideration:

POINT I -

The Trial Court Below Committed Reversible Error (Def. A-65 to Def. A-69) in Finding That the Defendant-Appellant's Motion for Post-Conviction Relief was Time-Barred, as the Defendant-Appellant Unquestionably Established "Excusable Neglect," pursuant to R. 3:22-12(a).

Subsection A -

The Mitchell factors Weigh in Favor of

Finding 'Excusable Neglect."

Subsection B -

Policy Considerations Weigh in Favor of

Relaxing the Time Restraints.

POINT II -

The Trial Court Committed Reversible Error (Def. A-65 to Def. A-69) in Declining to Vacate the Defendant-Appellant's Guilty Plea as the Defendant-Appellant was Effectively Denied His Constitutionally Protected Right to Counsel - Having Been Provided with Misinformation as to the Consequences of His Guilty Plea.

Subsection A -

The Defendant Was Provided with Erroneous Information Regarding the

Possible Consequences of Pleading

Guilty.

Subsection B -

The Erroneous Information Provided to

the Defendant-Appellant From His Counsel Directly Affected His Guilty Plea.

POINT III -

The Trial Court Below Committed Reversible Error (Def. A-65 to Def. A-69) in Declining to Hold an Evidentiary Hearing, as the Defendant-Appellant's Contentions Present a Prima Facie Claim for Post-Conviction Relief.

We affirm.

Defendant pled guilty to third-degree attempting to lure, N.J.S.A. 2C:13-6, and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b, on March 10, 1997. He was sentenced on October 17, 1997 to two concurrent terms of five years of probation, subject to Megan's Law, in accordance with his negotiated plea. In anticipation of his plea, defendant had circled "yes" to question seventeen on the plea form, which 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?" Additionally, at the plea colloquy, the judge went to great lengths to elicit questions from defendant regarding his plea, albeit not specifically about question 17, and the judge additionally elicited testimony from defendant's attorney that he and defendant had gone over the plea forms for approximately one hour. Defendant indicated satisfaction with his attorney's services.

In March 2001, defendant had trouble re-entering the United States because of his criminal convictions, but he was allowed to enter. In May 2001, he consulted with immigration counsel, and in August 2006, defendant was informed by the Immigration and Naturalization Service that he could remain in this country, but that he was ineligible for United States citizenship.

On or about November 20, 2006, defendant filed a PCR petition, claiming that he had been inadequately informed of the immigration consequences of his guilty plea, and as a result, he should be permitted to withdraw it. In that regard, defendant certified:

When the question regarding citizenship [on the plea form] was presented (Question 17) I asked [defense counsel] Mr. Scott if this would affect me, as I was not a United States citizen. Since it is now nearly ten years ago I am unable to recall his previous response, however, I am clear that there was no real explanation about immigration consequences.

Rule 3:22-12 provides that:

A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.

Defendant's petition was filed eight years after his sentence was imposed, and thus was untimely. Further, defendant has failed to demonstrate excusable neglect, since the record reflects that an effect of defendant's conviction on his immigration status became apparent to him in 2001 when defendant experienced difficulties in re-entering this country. A PCR petition filed at that time would have been timely. Nonetheless, defendant waited five more years before seeking post-conviction relief. As a result, exceptional circumstances permitting relief from the time bar established by the rule have not been demonstrated. State v. Afanador, 151 N.J. 41, 52 (1997).

We find defendant's remaining arguments to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

(continued)

(continued)

5

A-3601-06T4

RECORD IMPOUNDED

August 5, 2008