STATE OF NEW JERSEY v. JORGE CARRERA-HERNANDEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6028-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JORGE CARRERA-HERNANDEZ,

Defendant-Appellant.

May 16, 2011

Submitted March 28, 2011 - Decided

Before Judges Sabatino and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 95-02-0249.

Noriega & Associates, L.L.C., attorneys for appellant (Michael Noriega, of counsel and on the brief).

EdwardJ. De Fazio, Hudson County Prosecutor, attorney for respondent (Katrina T. De Los Reyes, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Jorge Carrera-Hernandez appeals from the denial of his application for post-conviction relief (PCR). For the reasons that follow, we affirm.

On June 10, 1996, defendant entered a guilty plea to one count of possession of a controlled dangerous substance with the intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7. Reduced to its simplest terms, defendant's factual basis was that earlier on November 31, 1994, he was asked by someone while he was in Hoboken to hold cocaine for them. He planned to "return" the drugs at some point thereafter in a nightclub in West New York. Defendant was stopped and the drugs were seized while he was at 61st and Hudson Streets in West New York at approximately 2:00 a.m. on December 1. Pursuant to the plea agreement, defendant was sentenced on August 23, 1996, to five years probation, 364 days county jail time, and appropriate fines and penalties.

When the plea was entered, the court inquired as follows:

THE COURT: Are you a citizen of the United States?

THE DEFENDANT: I'm a permanent resident alien.

THE COURT: You understand by pleading guilty to this offense, this may have an effect on your ability to remain in the United States?

THE DEFENDANT: Yes.

THE COURT: The Immigration and Naturalization Service [INS], when notified of your conviction, may take steps to have you deported from this country.

THE DEFENDANT: I'm aware of that.

At sentencing, the court noted that despite defendant's acknowledged drug use since age thirteen, his only prior contact with the criminal justice system was a conditional discharge at age twenty-seven. See N.J.S.A. 2C:36A-1.

Defendant's points on appeal are:

I. THE LOWER COURT ERRED IN FINDING APPELLANT'S APPLICATION FOR POST CONVICTION RELIEF TO BE UNTIMELY, AS DEFE[ND]ANT DEMONSTRATED EXCUSABLE NEGLECT WHERE THE HARSH CONSEQUENCE AND PREJUDICE OF DEPORTATION TRIGGERED THE DISCOVERY OF DEFENDANT'S ILLEGAL SENTENCE.

II. THE INTEREST OF JUSTICE DEMAND[S] THAT THE DEFENDANT'S PLEA BE VACATED SINCE THE FACTUAL BASIS WAS INSUFFICIENT TO SUPPORT THE OFFENSE ALLEGED; THEREFORE THE LOWER COURT DETERMINATION MUST BE REVERSED.

III. DEFENDANT'S COUNSEL WAS INEFFECTIVE IN NOT PROPERLY ADVISING THE DEFENDANT AS TO THE MEANING OF THE FACTS HE INTENDED TO STATE WHEN PLEADING TO A CHARGE OF POSSESSION WITH THE INTENT TO DISTRIBUTE WITHIN ONE THOUSAND FEET OF A SCHOOL ZONE.

Defendant sought PCR relief because, despite his satisfactory completion of five years of probation in 2001, he was taken into custody by the INS in 2009. Since defendant is Cuban, and deportation is not made to that country, he is in, to use his attorney's words, a "limbo status in this country." He is neither able to resume his prior classification as a permanent resident alien nor is he able to return to his country of origin. After spending some unspecified amount in custody, he was released by the immigration authorities.

It was not until the immigration proceedings were initiated that defendant sought to vacate his plea. As he candidly admits, he discovered his "illegal sentence" based on the allegedly "insufficient" factual basis he provided at the plea hearing when he realized the immigration consequences triggered by the conviction.

Patently, there was nothing illegal about defendant's sentence. The thrust of his argument is only that his factual basis established joint possession with the person to whom he was going to return the drugs, as opposed to possession with intent to distribute. See State v. Morrison, 188 N.J. 2, 13-19 (2006); State v. Lopez, 359 N.J. Super. 222, 233-36 (App. Div. 2003). Accordingly, defendant contends, his guilty plea should be vacated. He further asserts his attorney was ineffective in allowing him to be sentenced on a more serious charge than the offense he committed.

The PCR judge concluded the petition was filed long after the five-year time bar found in Rule 3:22-12 had expired. He also found defendant did not establish excusable neglect or the potential for serious injustice which would warrant an exemption. Recognizing that defendant's change in status was quite serious, the court additionally noted that defendant knew about the deportation jeopardy when he entered the plea and that risks willingly undertaken are simply not equivalent to "serious injustice."

Furthermore, the judge found that relaxation of the time bar would unduly prejudice the State and he disagreed with defendant's contention that his statements established joint possession. Rather, in the court's view, the factual basis established possession with intent to distribute. We agree with this analysis.

Defendant does not claim excusable neglect such as would overcome the Rule 3:22-12 time bar. Defendant delayed in making his application solely because no negative consequences ensued prior to deportation proceedings. This is not equivalent to "exceptional circumstances" which warrant exemption from the time bar. See State v. Milne, 178 N.J. 486, 492 (2004); State v. Goodwin, 173 N.J. 583, 594-95 (2002); State v. Afanador, 151 N.J. 41, 52 (1997).

Additionally there has been no showing of "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." R. 3:22-12(a)(1). Even if we were to accept defendant's premise that his sworn factual statement established nothing other than third-degree possession of an illegal substance, imposition of a term of probation was the likely outcome. Defendant was ineligible for pretrial intervention because he had previously taken advantage of another diversionary option, namely, that of a conditional discharge. Mere third-degree drug possession exposed him to the same draconic immigration consequences.

Moving to defendant's other claims, the Sixth Amendment of the United States Constitution guarantees a person accused of crimes the effective assistance of legal counsel in his or her defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was objectively deficient, and (2) this deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. This right to the effective assistance of counsel applies to guilty pleas. See State v. DiFrisco, 174 N.J. 195, 234 (2002); State v. Veney, 409 N.J. Super. 368, 377 (App. Div. 2009).

Defendant claims his trial counsel was ineffective in failing to "properly advis[e]" him at the time he entered his guilty plea as to the difference between possession with intent to distribute and mere joint possession. As Morrison instructs, joint possession ordinarily means the acquisition of drugs by persons intending to share them. Supra, 188 N.J. at 13-19. This was not a sharing of drugs, or the acquisition of drugs by one person with the intent to use the drugs with another at some future point in time. This was actual possession of drugs with the intent to pass them to another. Id. at 14. Even if defendant's statement established mere joint possession, no prejudice resulted from counsel's advice because any corresponding guilty plea or conviction after trial would have inflicted the same deportation consequences. Therefore, defendant has failed to meet Strickland's two-part test. First, counsel's performance was not deficient. In any event, the representation did not prejudice defendant's immigration status, the actual source of his complaint, as joint possession of controlled dangerous substances would have yielded the same immigration consequences.