STATE OF NEW JERSEY v. WALTER QUIROGA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4316-05T44316-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WALTER QUIROGA,

Defendant-Appellant.

____________________________________

 

Submitted May 1, 2007 - Decided May 15, 2007

Before Judges Skillman and Lisa.

On appeal from Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 98-02-0051.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief).

David J. Weaver, Sussex County Prosecutor, attorney for respondent (Gregory R. Mueller, Assistant Prosecutor, on the brief).

PER CURIAM

Pursuant to a plea bargain, defendant pled guilty on October 19, 1999 to charges of burglary, in violation of N.J.S.A. 2C:18-2, theft of moveable property, in violation of N.J.S.A. 2C:20-3, and criminal mischief, in violation of N.J.S.A. 2C:17-3(a)(1). On that same day, the trial court sentenced defendant to concurrent five year terms of imprisonment on these charges, to be served consecutively to his sentence on an indictment in another county. Defendant did not appeal from the judgment of conviction memorializing this sentence.

On February 3, 2005, defendant filed a petition for post-conviction relief based on alleged ineffective assistance of counsel. His primary claim of ineffective assistance was that his attorney did not adequately inform about the effect of a criminal conviction upon his immigration status.

The trial court denied defendant's petition by an oral opinion rendered on March 2, 2006. The court ruled that the petition was barred because it was filed beyond the five-year period allowed under Rule 3:22-12, and defendant had not demonstrated the excusable neglect required to extend this period. In addition, the court concluded that defendant had not shown any basis for post-conviction relief even if his petition had been timely filed. The court noted in particular that defendant's counsel advised him both at the time of his plea to this indictment and at the time of his plea to the indictment in another county that the convictions could result in his deportation.

On appeal, defendant presents the following arguments:

I. THE DEFENDANT'S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL SHOULD NOT BE SUBJECT TO A TIME BAR BECAUSE THE DEFENDANT HAS PRESENTED A VIABLE EXCUSABLE NEGLECT AND BECAUSE THE INTEREST OF JUSTICE SO REQUIRE.

II. DEFENDANT'S TRIAL COUNSEL AFFIRMATIVELY MISINFORMED HIM ABOUT THE CERTAINTY OF DEPORTATION AS A RESULT OF HIS PLEA THEREFORE REQUIRING HIS PLEA BE VACATED.

III. DEFENDANT HAS MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO AN EVIDENTIARY HEARING ON POST CONVICTION RELIEF.

We reject these arguments substantially for the reasons set forth in Judge Critchley's March 2, 2006 oral opinion. Defendant's arguments do not warrant any additional discussion. R. 2:11-3(e)(2).

Affirmed.

 
 

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A-4316-05T4

May 15, 2007