STATE OF NEW JERSEY v. ANGELO MANZUETA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4918-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANGELO MANZUETA,

Defendant-Appellant.

________________________________________________________________

November 20, 2012

Submitted July 18, 2012 - Decided

Before Judges Espinosa and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-11-1295.

Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Linda Claude-Oben, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

Defendant pled guilty, pursuant to a negotiated plea agreement, to one count of third-degree possession of a controlled dangerous substance with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7, on November 17, 2003. During the course of his plea hearing, defendant admitted that he had cocaine in his possession on the date he was arrested; that he intended to sell or share that cocaine; and that the location of the premises was within 1000 feet of school property. He stated he understood the nature of the charges against him; the sentence he faced pursuant to the plea agreement; that he was waiving his right to a jury trial; and stated further that he was entering the agreement freely and voluntarily. The court questioned defendant specifically about the questions and answers on the plea form:

THE COURT: Now -- now, Mr. Manzueta, I want you to take a look at the copies of that plea form that are there at counsel table. I have the originals here in my hands. Now, sir, do you read and write English?

THE DEFENDANT: No.

THE COURT: But your lawyer [] then did go over this form with you with the help of the interpreter, and she did translate all the questions and statements on this paper for you as the two of you were going over it.

THE DEFENDANT: Yes.

THE COURT: And as a matter of fact, [defense counsel] even helped you to prepare the form because as the two of you were speaking with the assistance of the interpreter, either [defense counsel] circled the correct answers here himself, or you circled them, or the two of you did it together.

THE DEFENDANT: We did it together.

THE COURT: And you did understand [defense counsel] with the assistance of the interpreter as the two of you were speaking.

THE DEFENDANT: Yes.

The plea form contained the following question: "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?" As defendant conceded, he and his attorney completed the form "together." The answer to this question was "Yes."

On March 18, 2004, defendant was sentenced to five years probation. Following a violation of probation, his probation was revoked and he was sentenced to three years incarceration, with a nine-month period of parole ineligibility.

Defendant did not file a direct appeal from his conviction or sentence.

On April 15, 2010, defendant filed a pro se petition for PCR, in which he stated he was "being detained in the Essex County Jail pending deportation as a direct consequence of this conviction." (Emphasis added). However, in this petition, he made no reference to the conviction in this case. Rather, he cited an earlier arrest in 1998 for third-degree possession of a controlled dangerous substance with intent to distribute; his representation by an entirely different attorney than the one who represented him in this case; and his expectation that he would receive a sentence of four years imprisonment.

Following the assignment of counsel, an amended verified petition was filed in which defendant sought relief from the judgment in this case. As in his pro se petition, defendant argued that he was denied the effective assistance of counsel because he was misinformed as to the immigration consequences of his guilty plea and that, therefore, the plea was not made knowingly, voluntarily or intelligently.

On April 13, 2011, the PCR court denied defendant's petition. In its statement of reasons, the court noted that the petition was procedurally barred because it was filed six years after the date of entry of judgment. The court quoted Rule 3:22-12(a)(1), which states, in pertinent part:

[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.

The court noted that defendant had failed to allege any facts explaining his delay, stating further,

Even if the Court were to assume he was unaware of the immigration consequences of his plea up to the date of his discharge from State custody, he obviously became fully aware of the same when he was taken into federal custody in 2009.

In this appeal, defendant presents the following issues for our consideration:

POINT I

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF PCR COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10

POINT II

THE COURT MISAPPLIED ITS DISCRETION BY DENYING THE DEFENDANT AN EVIDENTIARY HEARING TO ESTABLISH THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM, BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10

As the PCR court noted, the petition here was filed beyond the five-year period established by Rule 3:22-12(a)(1). To be entitled to a relaxation of the rule based upon excusable neglect, the petition must "allege[] facts demonstrating that the delay was due to the defendant's excusable neglect" and, "[i]f the defendant does not allege sufficient facts, the Rule bars the claim." State v. Mitchell, 126 N.J. 565, 576 (1992). As the PCR court observed, defendant did not allege any facts which demonstrate such excusable neglect. His petition is therefore barred.

Affirmed.