STATE OF NEW JERSEY v. CARLOS DORIVAL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3099-08T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLOS DORIVAL,

Defendant-Appellant.

___________________________

May 2, 2011

Submitted November 29, 2010 - Decided

Before Judges A.A. Rodr guez and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 92-08-01217.

Yvonne Smith Segars, Public Defender, attorney for appellant (Frank M. Gennaro, 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 appeals from the December 16, 2008 order denying his petition for post-conviction relief (PCR) as time-barred under Rule 3:22-12(a)(1). We affirm

On October 26, 1992, defendant pled guilty in Bergen County to one count of third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(5). He gave a factual basis indicating that on April 1, 1992, he drove from Ridgefield to New York City and "picked up" cocaine to bring back to New Jersey for "somebody else." Pursuant to a negotiated plea agreement, he was sentenced, on December 18, 1992, to a three-year term of probation. Because defendant was a resident of Union County, probation supervision was transferred to that county. It appears that, at the time of his plea and sentence, defendant, a native of Haiti, had been in the United States on a tourist visa since July 1989.

Defendant was arrested in Union County in 1993 and, on January 13, 1994, entered a guilty plea to possession of a controlled dangerous substance within 1000 feet of school property. Sentencing was scheduled for April 15, 1994; defendant failed to appear on that date and a bench warrant was issued for his arrest.

On September 9, 1994, defendant was charged with violation of probation (VOP) in Bergen County for (1) his arrest, guilty plea and the issuance of a bench warrant in Union County; (2) his failure to pay mandatory fines and assessments; and (3) his failure to report to his probation officer. For reasons that are not clear in the record, defendant did not appear for sentencing on the VOP in Bergen County until October 12, 2007. At that hearing it was disclosed that defendant had been in custody since the preceding July on an immigration detainer, which is discussed below. Defendant pled guilty to all of the VOP charges. The judge terminated probation as unsuccessful and ordered defendant to pay the outstanding balance on his fines and assessments.

Defendant filed his PCR petition on March 28, 2008, alleging ineffective assistance of his original plea counsel for failing to advise him of possible immigration consequences of his guilty plea. Defendant asserted that on July 18, 2007, the Department of Homeland Security, Immigration and Customs Enforcement (ICE) detained him and initiated removal proceedings, adding: "[ICE] asserts that the Union County [c]onviction . . . makes [defendant] eligible for deportation under 8 U.S.C.A[.] section 237(a)(2)(A)(ii)1, as amended . . . on [sic] 1996 as a person [c]onvicted of charges alleged [from 1992]." Defendant also claimed counsel was ineffective for failing to file a motion to suppress; he further sought to withdraw his plea "and have his charges dismissed on the grounds of racial profiling[,]" and claimed he was innocent of the charges.

The same judge who had sentenced defendant on his VOP heard oral argument on his PCR petition. At that proceeding, the transcript of defendant's 1992 plea was unavailable. The judge had the prosecutor read into the record the plea form defendant completed and signed at that time. In that form, defendant acknowledged he was guilty of the charge to which he was pleading; he was proceeding voluntarily and knowingly; he understood the rights he was waiving; he was satisfied with his attorney's services; and, particularly pertinent to this appeal, he understood that if he was not a United States citizen or national, he might be subject to deportation as a result of his plea.

The State moved to dismiss the PCR petition as out of time. Defense counsel requested an opportunity to file a supplemental brief addressing "the issue of excusable neglect to get around the five[-]year time bar [in Rule 3:22-12(a)(1)]."

The judge granted the State's motion and denied the PCR petition. On December 5, 2008, defense counsel wrote to the judge to advise that the 1992 plea transcript had been located and asked for reconsideration of the denial of defendant's PCR petition and to allow defendant "to go forward and file a brief in support of [PCR]." No further correspondence ensued on this point and, on December 16, 2008, the judge entered the order denying PCR.

On appeal, defendant raises the following contentions for our consideration:

POINT ONE: DEFENDANT WAS DEPRIVED OF A FAIR HEARING BY THE TRIAL COURT'S SUMMARY DENIAL OF HIS PETITION FOR POST-CONVICTION RELIEF

POINT TWO[:] DEFENDANT'S POST-CONVICTION RELIEF COUNSEL PROVIDED INEFFECTIVE ASSISTANCE TO DEFENDANT

Having considered these contentions in light of the record and the controlling legal principles, we are satisfied they lack sufficient merit to warrant reversal of the order denying PCR.

Rule 3:22-12(a)(1) provides, with respect to a first PCR petition:

[N]o petition shall be filed pursuant to this rule more than 5 years after the date of entry . . . 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.

"[G]ood reasons for such a Rule" have long been recognized. State v. Mitchell, 126 N.J. 565, 575 (1992). "As time passes after conviction, the difficulties associated with a fair and accurate reassessment of the critical events multiply." Ibid.

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. The Rule therefore strongly encourages those believing they have grounds for post-conviction relief to bring their claims swiftly, and discourages them from sitting on their rights until it is too late for a court to render justice.

[Id. at 576.]

Defendant was sentenced in December 1992; he filed his PCR petition more than fifteen years later in March 2008. His whereabouts were apparently unknown for thirteen of those years, from April 1994 until July 2007 when he was confined on the ICE detainer. Even assuming defendant had no basis to seek PCR with respect to his deportation issue until July 2007, he nonetheless waited almost another year to file his petition. Moreover, we discern no possible grounds for a claim of excusable neglect with respect to his other claims for relief, namely racial profiling, failure to file a motion to suppress, and a claim of innocence.

With respect to defendant's claim of ineffective assistance of counsel for failure to advise him of possible immigration consequences of his plea, we are satisfied that defendant suffered no prejudice from the judge's dismissal of his petition on procedural grounds. Imposition of the time bar in Rule 3:33-12(a)(1) did not "result in a fundamental injustice[,]" as defendant had no viable claim of ineffective assistance of counsel, for the following reasons.

8 U.S.C.A. 1227(a)(2)(A)(ii) provides for the deportation of "[a]ny alien who at any time after admission [to the United States] is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial." This statute took effect on March 1, 1991, under 8 U.S.C.A. 1251, Immigration Act of 1990, Pub. L. No. 101-649, 602, 104 Stat. 4978 (1990), which was redesignated as 1227 in 1997. See Okoro v. INS, 125 F.3d 920, 922 n.2 (5th Cir. 1997).2

Thus, it was defendant's 1994 conviction in Union County that rendered him deportable under this federal statute, not his 1992 conviction that is the subject of his PCR petition. The only pertinent advice his attorney could have given him in 1992 was not to incur a subsequent conviction, in other words to obey the law. The failure to state the obvious hardly amounts to ineffective assistance of counsel. This is not a case in which counsel "materially misinformed defendant concerning deportation," which was held to constitute ineffective assistance of counsel in State v. Nunez-Valdez, 200 N.J. 129, 131 (2009). Even if defendant's plea counsel had told him to "enter a plea and probation would not be any problem in the future," as defendant claimed in his PCR petition, such advice was not misleading in 1992.

A defendant's claim of ineffective assistance of counsel is considered under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, a defendant first must show that his attorney's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, the defendant must show that counsel's deficient performance prejudiced his defense. Ibid.

The Strickland test applies to challenges to guilty pleas based on the alleged ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985). To meet the first prong of the Strickland test, a defendant must show that his attorney failed to provide advice that "'was within the range of competence demanded of attorneys in criminal cases.'" Id. at 56, 106 S. Ct. at 369, 88 L. Ed. 2d at 208 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970)). To meet the second prong of the test, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210.

Under the circumstances, we are satisfied that defendant could not have made a prima facie showing of ineffective assistance of counsel even if the judge had waived the time bar in Rule3:22-12(a)(1) and considered the merits of his claim. Defendant's current deportation status did not result from his attorney's performance in 1992.

We are further satisfied that PCR counsel's performance was not deficient for failing to submit a brief on excusable neglect. Rule3:22-6(d) provides that counsel assigned to represent defendants on PCR "should advance all of the legitimate arguments . . . that the record will support." State v. Hicks, 411 N.J. Super. 370, 375 (App. Div. 2010). Since this record does not "support" defendant's claim of ineffective assistance based on deficient immigration advice, counsel's performance did not "fail[] to meet the standards imposed by Rule3:22-6(d)." Ibid.

1 As will be discussed later in this opinion, defendant cited an incorrect statute in his PCR petition. 8 U.S.C.A. 237, which expired three years after December 28, 1945, "related to admission of alien spouses and minor children of World War II veterans." 8 U.S.C.A. 232 (explaining the omission of 232 to 237). As will be discussed below, the pertinent statute is 8 U.S.C.A. 1227 (a)(2)(A)(ii).

2 1227 (a)(2)(A)(ii) was not amended in 1996, as defendant implied in his PCR petition.