STATE OF NEW JERSEY v. LLOYD CRAWFORD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LLOYD CRAWFORD,

Defendant-Appellant.

____________________________________________________

October 28, 2014

Submitted October 7, 2014 Decided

Before Judges Messano and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 89-01-0275.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Lloyd Crawford appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. The appellate record reveals that on August 20, 1990, defendant pled guilty to three drug-related offenses contained in Essex County Indictment No. 89-01-0275, and, on October 25, 1990, was sentenced to a two-year term of probation. At the time his guilty plea was entered, defendant executed a plea form that 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?" The answer circled was "N/A," or not applicable.1

On May 12, 1997, defendant pled guilty to one count in Essex County Accusation No. 97-5-542, charging him with third-degree aggravated assault, N.J.S.A. 2C:12-1b(2), and to certain counts contained in Indictment No. 96-1-645, which apparently charged him with conspiracy, N.J.S.A. 2C:5-2, and "video pirating," presumably N.J.S.A. 2C:21-21.2 In accordance with the plea bargain, on June 13, 1997, defendant was sentenced to three years' probation.

Defendant did not appeal from his 1990 or 1997 convictions. On October 26, 2011, defendant filed a pro se PCR petition alleging that trial counsel provided ineffective assistance "because [he] failed to inform" defendant that his guilty pleas would result in "a mandated [d]eportation order." Defendant reiterated in a second verified petition that counsel "failed to inform him that his [g]uilty plea [m]andanted [d]eportation." Defendant argued that his plea should be vacated pursuant to the Court's holding in State v. Nunez-Valdez, 200 N.J. 129 (2009). Counsel was appointed to represent defendant and apparently filed a brief on defendant's behalf.

On June 7, 2013, Judge Martin G. Cronin conducted a hearing on the petition. At that point, defendant had already been deported to Jamaica and was participating in the hearing via telephone. Judge Cronin first determined defendant's petition was procedurally-barred, since it was filed well beyond the five-year limit contained in Rule 3:22-12(a)(1), and defendant failed to establish the late filing was due to excusable neglect.3

Judge Cronin also addressed the merits of the petition. He correctly reasoned that the standard set forth in Nunez-Valdez governed the matter, i.e., a defendant must demonstrate that "he received misleading or false information about [the] immigration consequences" of his guilty plea. Nu ez-Vald z, supra, 200 N.J. at 141-42 (emphasis added). The judge properly noted that "[a]t best, the allegation . . . when reviewing all the documents, is that there was a failure [by trial counsel] to provide advice, not [that counsel provided] affirmative misadvice." Judge Cronin entered an order denying defendant's PCR petition, and this appeal followed.

Before us, defendant argues he demonstrated excusable neglect because, although he was aware of possible deportation as a result of his guilty plea, he was unaware until after the five-year time limit contained in Rule 3:22-12(a)(1) had passed that the conviction would result in his mandatory deportation. Defendant further argues that he demonstrated a prima facie case for PCR relief based upon trial counsel's ineffective assistance and, therefore, was entitled to an evidentiary hearing.

We have considered these arguments in light of the record and applicable legal standards. We affirm substantially for the reasons expressed by Judge Cronin is his well-reasoned oral decision. We add only the following.

Under the United States Supreme Court's holding in Padilla v. Kentucky, 559 U.S. 356, 369, 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284, 296 (2010), "specific advice must be given on deportation consequences denoted as mandatory under federal law." State v. Gaitan, 209 N.J. 339, 373 (2012). However, defendant's guilty pleas were entered before the decision in Padilla, and the Padilla standard is not applied retroactively. Chaidez v. United States, __ U.S. __, 133 S. Ct. 1103, 1105, 185 L. Ed. 2d 149, 154 (2013); Gaitan, supra, 209 N.J. at 371-72. Therefore, to present a viable claim of ineffective assistance of trial counsel, defendant needed to demonstrate he received the "wrong advice, followed by inaccurate and misleading information on immigration consequences (and specifically deportation) that [was] material" to his decision to plead guilty. Gaitan, supra, 209 N.J. at 373. Defendant clearly failed to do that in this case, since he claimed only that trial counsel failed to give him any advice.

Affirmed.

1 We were not provided with a transcript of the actual plea proceedings.

2 This is how the charge is described in the State's brief. See State v. El Moghrabi, 316 N.J. Super. 139, 141-42 (App. Div. 1998) (discussing the statute). Although we have been provided with a transcript of the plea proceedings, we have not been provided with the plea form or the indictment, and the only judgment of conviction in the record is for the accusation.

3 The Rule provides that with certain exceptions that do not apply here, "no petition shall be filed . . . 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." R. 3:22-12(a)(1).