STATE OF NEW JERSEY v. BLAIR D. RICHARDS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3855-07T43855-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BLAIR D. RICHARDS,

Defendant-Appellant.

__________________________________

 

Submitted March 2, 2009 - Decided

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4717.

Barry, McTiernan & Wedinger, attorneys for appellant (Laurel A. Wedinger, on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Blair Richards appeals from an order dated February 29, 2008, denying his petition for post-conviction relief (PCR). We affirm.

These are the most pertinent facts. On November 14, 2000, while represented by counsel, defendant pled guilty in municipal court to a charge of loitering with the purpose of obtaining a controlled dangerous substance (CDS), N.J.S.A. 2C:33-2.1(b), amended from a charge of violating N.J.S.A. 39:4-49.1 (driving with CDS in a motor vehicle). The original charge could have resulted in a two-year suspension of defendant's driving privileges. Ibid. The plea agreement also resulted in the dismissal of several other charges.

At the time he accepted the plea agreement, defendant was a twenty-year old Canadian citizen, attending college in the United States. He alleges that in 2002, when he attempted to re-enter the United States after a visit to his home in Canada, he was not allowed back into this country because he had a drug-related conviction. See 8 U.S.C.A. 1182(a)(2)(A)(i)(II). Nonetheless, he waited until 2006 before filing a petition for post-conviction relief seeking to withdraw his guilty plea. The municipal court denied the petition, and defendant appealed to the Law Division.

In a thorough written opinion, Judge Subryan concluded that defendant's PCR petition was filed beyond the five-year time limit set forth in Rule 7:10-2(b)(2). See R. 3:22-12(a). Judge Subryan found no proof that defendant was diligent in pursuing his PCR rights so as to establish excusable neglect under Rule 7:10-2(b)(2). In particular, defendant had known since 2002 that his conviction would prevent him from re-entering the United States. Judge Subryan also reasoned that the State might be prejudiced by the long delay if it had to re-try defendant.

Considering the merits of the petition, Judge Subryan also concluded that defendant had not presented a prima facie case of ineffective assistance, because his counsel did not misrepresent the potential deportation consequences of the plea.

Further, in light of the serious consequences facing defendant as a result of numerous charges that were dismissed or downgraded as a result of the plea agreement, Judge Subryan concluded that there was no reason to believe defendant would have rejected the very favorable plea offer even if he knew about its potential immigration consequences. This was consistent with a certification submitted by defendant's former municipal trial counsel, who had no recollection of defendant asking him about any possible immigration consequences of the plea and certified that if defendant had asked about possible immigration issues he would have sought an adjournment to allow defendant to consult with immigration counsel. The attorney attested that defendant simply instructed him to get the best possible plea bargain that would allow defendant to avoid incarceration. Further, defendant did not claim that he asked his attorney about the immigration consequences of the plea agreement, or that the attorney gave him any immigration-related advice.

On this appeal, defendant contends that he demonstrated excusable neglect and thus Rule 7:10-2(b)(2) did not bar his PCR petition. He also argues that his attorney rendered ineffective assistance of counsel and thus he should be permitted to withdraw his plea. Having reviewed the record, we conclude that defendant's appellate contentions are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following comments.

Even if defendant demonstrated excusable neglect so as to surmount the time bar of Rule 7:10-2(b)(2), he was not entitled to the substantive relief he sought, i.e., the right to withdraw his guilty plea. As the Supreme Court recently clarified in State v. Slater, ___ N.J. ___ (2009), one of the significant factors to be considered in a motion to withdraw a guilty plea is whether defendant makes a claim of innocence:

[T]rial judges are to consider and balance four factors in evaluating motions to withdraw a guilty plea: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.

[Slater, supra, slip op. at 13.]

Moreover, "[a] bare assertion of innocence is insufficient to justify withdrawal of a plea. Defendants must present specific, credible facts and, where possible, point to facts in the record that buttress their claim." Id. at 14. In evaluating the claim of innocence, the court may consider the evidence that was available to the prosecutor at the time the plea was entered, ibid., and "efforts to withdraw a plea after sentencing must be substantiated by strong, compelling reasons." Id. at 16.

While defendant clearly regrets accepting the plea bargain, nowhere in his PCR submissions does he make any claim that he was innocent of the charges against him. Moreover, the State's evidence strongly suggests that had this matter gone to trial, defendant would have been convicted of one or more CDS offenses.

According to the report of the arresting officer, when he stopped the car he detected a "strong odor" of marijuana. Defendant, who was the driver, exhibited "slow and dulled" movements, as well as bloodshot, watery eyes. Both defendant and the passenger admitted to the officer that "they had smoked marijuana earlier" although they denied there were any drugs in the car. However, the officer found a marijuana "roach" in the ash tray between the front seats and found a small amount of marijuana in the glove box. A urine sample given by defendant at the police station tested positive for THC, a "marijuana constituent metabolite;" the test report was dated November 14, 2000. We therefore conclude there was an insufficient basis to permit defendant to withdraw his guilty plea. See Slater, supra, slip op. at 13.

Further, even if defendant had known of the immigration consequences of his plea bargain before he agreed to enter into it, there is no proof in this record that defendant's counsel could have gotten him a better deal than the one he obtained. Defendant still would have faced the Hobson's choice of taking the plea bargain or going to trial and facing a likely conviction on one or more CDS offenses, which would have resulted in the same undesirable immigration consequences plus more severe penalties under State law.

Notably, in his three certifications in support of his PCR petition, defendant did not state that he would not have taken the plea if he had known of its immigration consequences. He only stated that he would have consulted with immigration counsel before making a decision. See State v. Chung, 210 N.J. Super. 427, 435-36 (App. Div. 1986). Hence, defendant did not present a prima facie case of ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

Affirmed.

Defendant was additionally charged with violating N.J.S.A. 39:3-17.1 (continuation of nonresident driving rights after becoming a resident); N.J.S.A. 39:4-98 (speeding); N.J.S.A. 39:3-72 (bald tires); N.J.S.A. 39:4-50 (DWI/CDS); N.J.S.A. 2C:35-10a(4) (possession of fifty grams or less of marijuana); and N.J.S.A. 39:3-38.1 (counterfeit driver's license). According to defendant, he pled guilty to unsafe driving and DWI; the other charges were dismissed.

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A-3855-07T4

March 25, 2009