STATE OF NEW JERSEY v. ERROL BARRINGTON PETGRAVE, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4998-07T44998-07T4

STATE OF NEW JERSEY,

Plaintiff-Appellant.

v.

ERROL BARRINGTON PETGRAVE, JR.,

a/k/a ERROL B. PETGRABE,

Defendant-Respondent.

_____________________________________________________

 

Submitted December 2, 2008 - Decided

Before Judges Skillman and Graves.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 94-08-3000.

Paula T. Dow, Essex County Prosecutor, attorney for appellant (Lucille M. Rosano, Assistant Prosecutor, of counsel and on the briefs.)

Harkavy, Goldman, Goldman, Caprio & Gerstein, attorneys for respondent (Martin S. Goldman and Ilene J. McFarland, on the brief).

PER CURIAM

On August 31, 1994, defendant was indicted for numerous offenses, including second-degree possession of marijuana with the intent to distribute, in violation of N.J.S.A. 2C:35-5(b)(10); possession of marijuana within 1,000 feet of school property with the intent to distribute, in violation of N.J.S.A. 2C:35-7; third-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:35-4(d); and resisting arrest, in violation of N.J.S.A. 2C:29-2. On June 7, 1995, defendant entered into a plea bargain under which he agreed to plead guilty to these charges, and the State agreed to dismiss the other charges against him, including a charge of second-degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(1), and to recommend a seven-year term of imprisonment without any parole ineligibility.

Defendant apparently extended substantial cooperation to the State following this initial plea agreement, which resulted in the prosecution of numerous other persons. As a result of that cooperation, the State changed its sentencing recom-mendation to a probationary sentence. In accordance with that recommendation, on October 2, 1995, the trial court sentenced defendant to five years probation. Defendant did not appeal from the judgment of conviction memorializing this sentence.

Twelve years later, on October 5, 2007, defendant filed a petition for post-conviction relief seeking to withdraw his guilty plea. The basis for this petition was that defendant's then counsel had erroneously advised him that he would not be subject to deportation as a result of a criminal conviction even though he was not a citizen because he was a legal resident of the United States. Defendant alleged that if he had been aware a conviction would subject him to deportation, he would not have pled guilty.

The trial court conducted an evidentiary hearing on the petition at which both defendant and his counsel at the time of the guilty plea testified that defense counsel had erroneously informed him that a criminal conviction would not subject him to deportation. Based on this erroneous advice, defendant had responded "N/A," presumably meaning "not applicable," to the following question on the plea form: "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?"

However, when defendant consulted with an immigration attorney about becoming a United States citizen, which occurred approximately three or four years before filing his petition for post-conviction relief, that attorney informed him that his New Jersey conviction, as well as another conviction in Florida, not only would prevent him from becoming a citizen but also could subject him to deportation. After receiving this advice, defendant successfully brought proceedings in Florida to vacate his conviction in that State. According to defendant, he did not seek relief with respect to his New Jersey conviction at that time because he did not have the money to hire an attorney and therefore thought it best to deal with his convictions "one at a time."

Based on this evidence, the trial court concluded that defendant had shown "excusable neglect" in failing to file a petition for post-conviction relief within the five-year period allowed under Rule 3:22-12(a). The court credited testimony by defendant and the defense attorney who represented him when he pled guilty that the attorney had misinformed him that his guilty plea would have "no immigration consequences." The court also credited defendant's testimony that he would not have pled guilty if he had known he "could have been deported as a consequence of [his] conviction." In addition, the court found that defendant became aware he was subject to deportation as a result of his criminal convictions at the earliest in 2005, which was five years after expiration of the five-year period for filing a petition for post-conviction relief. The court concluded based on these findings that even though the possibility of deportation was only a collateral consequence of defendant's guilty plea, his attorney's incorrect advice concerning those consequences constituted ineffective assistance of counsel. Accordingly, the court entered an order on April 23, 2008, vacating the judgment of conviction entered on October 2, 1995.

We granted the State's motion for leave to appeal from that order and now reverse.

The five-year limit on filing petitions for post-conviction relief established by Rule 3:22-12(a) "should be relaxed only 'under exceptional circumstances' because '[a]s time passes, justice becomes more elusive and the necessity for preserving finality and certainty of judgments increases.'" State v. Goodwin, 173 N.J. 583, 594 (2002) (quoting State v. Afandor, 151 N.J. 41, 52 (1997)). However, "[i]f the petitioner articulates facts that demonstrate a serious question about his or her guilt or the propriety of the sentence imposed and is prepared to provide factual evidence to support it, then sufficient grounds for relaxing the Rule might exist." State v. Mitchell, 126 N.J. 565, 580 (1992).

Rule 3:22-12(a) recognizes an exception to the five-year limit on petitions for post-conviction relief for petitioners seeking "to correct an illegal sentence," which may be filed "at any time." This exception has been "defined narrowly" to apply only to "sentences that exceed the maximum penalties authorized by statute for a specific offense," or that are "not imposed in accordance with law." State v. Murray, 162 N.J. 240, 246-47 (2000). A claim of ineffective assistance of counsel does not fall within this exception unless that ineffective assistance resulted in imposition of an illegal sentence. See id. at 247-49.

Defendant's ineffective assistance of counsel claim relates to his guilty plea, not to his sentence, and thus does not fall within this narrow exception. Therefore, defendant was required to show "excusable neglect" or "exceptional circumstances" in failing to file his petition within the five-year period allowed under Rule 3:22-12(a). See Afandor, supra, 151 N.J. at 52.

"In determining whether a defendant has asserted grounds sufficient for relaxation of [the five-year period], a court 'should consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim. . . .'" Goodwin, supra, 173 N.J. at 594 (quoting Afandor, supra, 151 N.J. at 52). Applying these criteria, it is clear that defendant failed to make the showing required for relaxation of the five-year period for filing a petition for post-conviction relief.

Defendant did not file his petition until more than twelve years after entry of the judgment of conviction. Thus, the delay was extensive.

Moreover, although the alleged cause of this delay was the misinformation communicated to defendant by his attorney concerning the deportation consequences of a plea, defendant admitted that he delayed an additional approximately three years after becoming aware that his convictions subjected him to deportation before filing the petition.

The State did not present specific evidence concerning the prejudice it would suffer if defendant's convictions were vacated. However, since the offenses to which defendant pled guilty were committed on March 9, 1994, nearly fifteen years ago, we presume it would be significantly more difficult for the State to successfully prosecute those offenses now than it would have been in 1995 at the time of the plea.

Finally, defendant has not presented any evidence that he is innocent of the offenses to which he pled guilty. We note in this respect that defendant gave a clear and detailed factual basis for each of his guilty pleas:

[COURT] How about telling me briefly what occurred on March 9, 1994.

THE DEFENDANT: The doorbell rang, answered the door, it was a postal delivery man out there, had a package to Michael Smith. I signed the name Michael Smith, took the package and took it upstairs -- left the package -- left the package in the hallway --

THE DEFENDANT: Left the package in the hallway, in the upstairs hallway, came back out, opened the package. A couple -- right after that, police officers came banging on the door, led into -- they entered the kitchen. I pulled a knife out. They threw me down on the floor, handcuffed me.

THE COURT: What was in the package?

THE DEFENDANT: Marijuana.

THE COURT: You knew it was marijuana?

THE DEFENDANT: Yes.

THE COURT: And you intended to distribute it with some other people?

THE DEFENDANT: Yes, your Honor.

THE COURT: And there is a school in the area of where this package was delivered?

THE DEFENDANT: Yes, your Honor.

THE COURT: And when the police came in, you took out the knife?

THE DEFENDANT: Yes, your Honor.

THE COURT: And did you attempt to prevent the officer from arresting you, try to get away from him?

THE DEFENDANT: Yes, your Honor.

THE COURT: And what about Michael Smith? What was his involvement in this?

THE DEFENDANT: He didn't have anything to do with it.

THE COURT: This is marijuana that was being sent to you?

THE DEFENDANT: Yes, your Honor.

THE COURT: You knew it was coming?

THE DEFENDANT: Yes, your Honor.

THE COURT: And it was more than five pounds -- actually my recollection is it was eight pounds approximately.

THE DEFENDANT: I believe so, your Honor.

Moreover, the presentence report indicates that the State would have been in the position to present strong evidence of defendant's guilt in the form of testimony by a United States Postal Inspector and detectives in the Essex County Sheriff Department's Bureau of Narcotics concerning the marijuana and other evidence obtained in the execution of a search warrant for defendant's apartment.

Consequently, defendant's claim is not that he was innocent of the charges to which he pled guilty but rather that he would have been prepared to take his chances on being convicted at trial, even in the face of strong evidence of guilt, if he had known his guilty plea would subject him to deportation. Under these circumstances, we perceive no basis for concluding that "there has been an injustice sufficient to relax the time limits [of Rule 3:22-12(a)]." Goodwin, supra, 173 N.J. at 594.

In support of his petition, defendant placed primary reliance upon our decision in State v. Garcia, 320 N.J. Super. 332 (App. Div. 1999). However, Garcia only held that a defendant who has pled guilty to criminal charges may seek post-conviction relief on the ground of ineffective assistance of counsel if his counsel misinformed him that a conviction would not subject him to deportation. Id. at 338-41. It did not involve any question concerning the five-year time limit on the filing of petitions for post-conviction relief established by Rule 3:22-12(a), because the petition in Garcia was filed well within that prescribed period. See id. at 335. We also note that Garcia was subject to indefinite continued incarceration as a result of his deportation status because his native country, Cuba, "does not accept deported aliens from America." Id. at 334. In contrast, defendant has never been incarcerated as a result of his plea, which resulted in a probationary sentence, and there is no evidence of a likelihood he will be deported. Indeed, defendant only became aware of his exposure to possible deportation when he sought legal advice about becoming a United States citizen. Therefore, Garcia does not support defendant's claim that he is entitled to post-conviction relief based on the alleged misinformation provided to him by his trial counsel regarding his deportation status, notwithstanding his failure to file a petition within the five-year period allowed by Rule 3:22-12(a).

Accordingly, the order granting defendant's petition is reversed.

 

Defendant testified at the hearing on his petition, which was held on April 18, 2008, that he became aware his convictions subjected him to deportation "[t]hree or four years ago."

(continued)

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A-4998-07T4

January 6, 2009