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July 7, 2014


Submitted March 3, 2014 Decided


Before Judges Ashrafi and Leone.


On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 05-03-398 and 91-11-879.


Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the briefs).


Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the briefs).



Defendant Walter Quezada filed two separate petitions for post-conviction relief (PCR) relating to two separate convictions. He alleged his two different plea counsel were ineffective in advising him of the removal consequences of pleading guilty.1 He appeals the denial of both petitions, and claims he was entitled to an evidentiary hearing on the first petition. We address both appeals in this opinion, and affirm.


Defendant was born in Peru, but came to the United States in 1981 and is currently a legal permanent resident. On November 20, 1991, Accusation No. 91 11 879 A charged defendant with three counts of third-degree burglary, N.J.S.A. 2C:18 2. On the same day, defendant entered into a negotiated plea agreement, signed a plea form, and answered "Yes" to Question 17, which asked: "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?" Defendant pled guilty to the charges, and was sentenced to four years of probation and ninety days in county jail, and was required to pay restitution to the victims. The judgment of conviction was entered on January 24, 1992 (1992 convictions). Defendant did not appeal the 1992 convictions.

On July 29, 2010, more than eighteen years after his 1992 convictions, defendant filed a PCR petition alleging he was never "properly advised that [he] would be deported from the United States as a mandatory consequence of his plea." At the PCR hearing on January 28, 2011, defense counsel conceded that defendant is "completely really out of time," and that he did not "see some kind of excusable neglect on [defendant's] part as to why he didn't bring this earlier." Defense counsel instead argued that, because defendant did not "have a crystal ball to see [9/11/2001], that had he known that he would be deported he certainly would not have signed that plea form."

In a written opinion dated March 11, 2011, Judge Nestor F. Guzman found that, under Rule 3:22 12, defendant's PCR petition is "clearly procedurally barred since it was filed almost fourteen years after the completion of the proscribed time limit" and "defendant failed to provide any facts or circumstances warranting a relaxation of the rule."


On March 29, 2005, defendant was again arrested and charged under Indictment No. 05 03 398 with third-degree arson, N.J.S.A. 2C:17 1B(3), and fourth-degree unsworn falsification, N.J.S.A. 2C:28 3(b)(1). Pursuant to a negotiated plea agreement, the third-degree arson charge was amended to third-degree criminal mischief, N.J.S.A. 2C:17 3(a)(1), to which defendant pled guilty, and the fourth-degree charge was dismissed.

Defendant signed a plea form and answered "Yes" to Question 17, which asked: "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?" At the plea colloquy, Judge Guzman asked if defendant "had an opportunity to discuss this matter with [his] attorney at length," and defendant responded: "Yes, Your Honor." Judge Guzman then asked: "Do you understand that you may be subject to deportation, the laws of deportation of the country?" Defendant responded: "Yes, Your Honor." Finally, Judge Guzman asked: "Knowing that[,] you still wish to enter a plea of guilty?" Defendant responded: "Yes, Your Honor."

Pursuant to the negotiated plea agreement, defendant was sentenced to a four-year prison term to run concurrently with an eight-year term stemming from an unrelated conviction. The judgment of conviction was entered on June 26, 2007 (2007 conviction). Defendant did not appeal his 2007 conviction.

On July 1, 2010, defendant filed a PCR petition from the 2007 conviction, alleging he was not "properly advised" of the removal consequences of his guilty plea. Defendant alleged that "[t]he only advice that [he] received regarding deportation was that [he] might face a possibility of deportation or removal from the United States as a consequence of [his] guilty plea." Defendant also alleged that Question No. 17 on the plea form "was misleading" because it led him "to believe that deportation was not mandatory and that [he] could have a chance of staying in the United States." Defendant also alleged that "the judge never told [him] that [he] may be deported as a result of this conviction," or that he "must be deported because of the type of crime or nature of the conviction."

On July 12, 2011, defendant again appeared before Judge Guzman for an evidentiary hearing regarding his PCR petition for the 2007 conviction. Plea counsel testified that he did "not have a specific recollection of going over" every question on the plea form with defendant but, that it was "my custom, my habit, [and] my practice . . . to go over each and every question with my client." Plea counsel stated that he "recall[ed] discussing the Patriot Act with" defendant, and "that [he] discussed [Question] 17 with [defendant]."

On cross-examination, plea counsel testified that he "most likely read" the Patriot Act, or the "parts of the statute . . . applicable to [the] plea," and that on the date of the plea he was prepared to go to trial. Plea counsel then reiterated that he advised defendant "that his entering a plea of guilty to the amended charge could have effects under the Patriot Act, one of which would result in his deportation [from] our country."

Defendant testified that he had asked plea counsel about Question 17 of the plea form with regards to possible removal consequences as a result of his guilty plea, and that plea counsel replied that he "shouldn't be thinking about that right now" and that he "may or . . . may not" be removed but that he "might not be affected" because he has "been here all [his] life." Defendant claimed plea counsel never told him that removal was "mandatory."

Defendant was asked if he remembered "being asked by Judge Guzman that [he] may be subject to deportation and the laws of deportation of this country." Defendant responded that he "was aware" of the possible removal consequences of his guilty plea. He also acknowledged that he had "four felony convictions," one of which included "possession of a weapon, a handgun."

Judge Guzman denied defendant's petition in a written opinion dated April 24, 2012. The court found plea counsel's "testimony to be more credible than that of the Defendant." The court also found defendant "was thoroughly aware" that he could be removed, as evidenced by his testimony that plea counsel told him "he may or may not be deported" and "by the fact that the Defendant answered 'yes' on the plea form and in response to the Court when asked if he understood that entering a guilty plea exposed him to the possibility of deportation."

Defendant appeals from the denial of his PCR petitions. In appeal No. A 1433 12 challenging the 1992 convictions, he argues:



In appeal No. A 0797 12, challenging the 2007 conviction, he argues:





We must hew to our standard of review. We review a PCR court's conclusions of law de novo. State v. Nash, 212 N.J. 518, 540 41 (2013). However, "[o]ur standard of review is necessarily deferential to a PCR court's factual findings based on its review of live witness testimony," id. at 540, because of its "opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy," State v. Nu ez Vald z, 200 N.J. 129, 141 (2009) (quotation marks omitted). Moreover, "credibility determinations are given greater deference." See State v. Harris, 181 N.J. 391, 420 21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We should not disturb the trial court's factual findings unless they are not supported by "sufficient, credible evidence in the record." Nu ez Vald z, supra, 200 N.J. at 141. We must affirm those findings unless "'they are so clearly mistaken that the interests of justice demand intervention and correction.'" Ibid.

To show ineffective assistance of counsel, defendant must meet the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Fritz, 105 N.J. 42 (1987). "'First, the defendant must show that counsel s performance was deficient.'" State v. Taccetta, 200 N.J. 183, 193 (2009). "'Second, the defendant must show that the deficient performance prejudiced the defense.'" Ibid.

In the context of a guilty plea, the defendant must show that "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases' [and that] there is a reasonable probability that, but for counsel's errors, [the defendant] would not have [pled] guilty and would have insisted on going to trial." State v. DiFrisco, 137 N.J. 434, 457 (1994) (citation omitted) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).

The standard governing criminal defense counsel's obligations concerning immigration issues has changed over time. In 1992 and 2007, plea counsel was not required to advise a defendant regarding the removal consequences of a plea, but counsel would be ineffective if counsel "provide[d] false or misleading [material] information concerning the deportation consequences of a plea of guilty." Nu ez Vald z, supra, 200 N.J. at 141 43.

On March 31, 2010, the United States Supreme Court in Padilla v. Kentucky, 559 U.S. 356, 374, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284, 299 (2010), held that "counsel must inform her client whether his plea carries a risk of deportation." However, the Court's ruling in Padilla is not retroactively applied to convictions that were "final" when Padilla was decided. Chaidez v. United States, ___ U.S. ___, 133 S. Ct. 1103, 1105, 185 L. Ed. 2d 149, 154 (2013); Gaitan, supra, 209 N.J. at 372. Therefore, Padilla does not apply to defendant's 1992 and 2007 convictions.


Defendant is barred from challenging his 1992 convictions because his PCR petition is untimely. See State v. Brewster, 429 N.J. Super. 387, 398 (App. Div. 2013). Rule 3:22 12(a)(1) has long provided that "[n]o petition shall be filed . . . more than 5 years" after the entry of the challenged judgment of conviction, absent excusable neglect. Defendant's judgment of conviction was entered on January 24, 1992. Under Rule 3:22-12(a)(1)'s five-year limit, he had until January 24, 1997 to file his PCR petition. He did not file his petition until July 29, 2010, more than thirteen years after the five-year limit expired. At the PCR hearing and in his appellate brief, he conceded he cannot show excusable neglect. This is fatal to his claim. See State v. Goodwin, 173 N.J. 583, 594 95 (2002).

Defendant argues the time bar should not apply, citing Rule 1:1 2(a), which states that the rules "shall be construed to secure a just determination," and that "[u]nless otherwise stated, any rule may be relaxed or dispersed with by the court in which the action is pending if adherence to it would result in an injustice." However, before defendant filed his PCR petition, the Rules were amended on September 1, 2009, to preclude such an argument. First, Rule 3:22 12 was amended to add paragraph (c) which states that Rule 3:22-12's "time limitations shall not be relaxed, except as provided herein." "Paragraph (c) of the rule was adopted . . . to render the time limitations of the rule non-relaxable" except upon the rule's required showing of "excusable neglect." Pressler & Verniero, Current N.J. Court Rules, comment 3 on R. 3:22 12 (2014). "A conforming change was then made in R. 1:3 4(c)." Ibid. That rule provides that "[n]either the parties nor the court may . . . enlarge the time specified by . . . R. 3:22 12." R. 1:3 4(c); see State v. Fox, 249 N.J. Super. 521, 526 (App. Div. 1991).

In addition, Rule 3:22 12 was further amended on February 1, 2010, to require defendants showing excusable neglect to also show 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).

These amendments, though adopted after defendant was convicted in 1992, are applicable to his PCR petition filed after the amendments took effect. See, e.g., Brewster, supra, 429 N.J. Super. at 398 n.3. "[C]ourt rules 'are given retrospective application if vested rights are not thereby disturbed.'" Shimm v. Toys from the Attic, Inc., 375 N.J. Super. 300, 304 05 (App. Div. 2005) (quoting Feuchtbaum v. Constantini, 59 N.J. 167, 172 (1971)); see also Kas Oriental Rugs, Inc. v. Ellman, 407 N.J. Super. 538, 549-52 (App. Div.), certif. denied, 200 N.J. 476 (2009). Here, defendant had no vested right preventing the Court from amending the Rule's procedures governing PCR petitions. Nor, as set forth below, is it manifestly unjust to apply the current version of the Rules. See James v. N.J. Mfrs. Ins. Co., 216 N.J. 552, 563 (2014). In any event, defendant cannot show the "injustice" required by Rule 1:1 2(a).


Defendant cannot show a reasonable probability of fundamental injustice as he has not established a prima facie case of ineffectiveness regarding his 1992 convictions. He certifies that he was advised that he might face the possibility of removal. He fails to identify any "false or misleading information" provided by plea counsel concerning the removal consequences of his guilty plea. Nu ez Vald z, supra, 200 N.J. at 138. Further, defendant cannot show prejudice, because he answered "Yes" to Question 17 of the plea form, which advised him that a "guilty plea could result in deportation."

Defendant claims his 1992 convictions made removal mandatory. Prior to Padilla, counsel was not required to inform a defendant he faced mandatory removal. See Gaitan, supra, 209 N.J. at 371. Moreover, we have rejected a "defendant's contention that Question 17 on the plea form used in 1998 was 'a misstatement of federal law' because it did not inform him that he was 'subject to mandatory deportation.'" Brewster, supra, 429 N.J. Super. at 397. In any event, defendant has not shown that his 1992 burglary convictions made him mandatorily "removable" under 8 U.S.C.A. 1227(a)(2)(A). Defendant's 1992 burglary convictions are not aggravated felonies because his "term of imprisonment [was not] at least one year," 8 U.S.C.A. 1101(a)(43)(G), and defendant offers no authority that third-degree burglary is "a crime involving moral turpitude," 8 U.S.C.A. 1227(a)(2)(A). Further, defendant's claim that his 1992 convictions made his removal mandatory is dubious given that defendant has remained in the United States for at least two decades thereafter.


Defendant argues that he "did not seek to challenge his plea earlier because he only recently faced the prospect of deportation." However, defendant has not shown that removal proceedings have been brought. Further, defendant was advised in 1992 that his plea could result in removal but defendant took no action to challenge it until 2010. In any event, as set forth above, it is not clear that defendant's 1992 convictions would cause removal. Indeed, defendant has three other felony convictions, which may be sufficient to cause defendant's removal.

Defendant asserts that the time bar should be relaxed because there is "a significant liberty interest at stake" and the defendant has offered a factual basis to prove his claim. State v. Mitchell, 126 N.J. 565, 580 (1992). Even if true, defendant offers no explanation as to why he failed to react sooner to the court's advice about the removal consequences of his 1992 plea. Mitchell, supra, 126 N.J. at 580. Also, defendant has not offered a factual basis to prove his claim of ineffective assistance of counsel.

Defendant argues that "society's view and the law on deportation have changed drastically since 1991." He further argues that he could not have foreseen the events of September 11, 2001, and that had "defendant been able to anticipate this change, he would not have pled guilty to the accusation." Defendant's claims are belied by his 2007 guilty plea to a crime carrying a much more serious sentence. In any event, Nu ez Vald z does not require counsel to anticipate such changes.

Rule 3:22 12 "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." Mitchell, supra, 126 N.J. at 576. "'As time passes, justice becomes more elusive and the necessity for preserving finality and certainty of judgments increases.'" Goodwin, supra, 173 N.J. at 594. "The prejudice to the State's ability to litigate the case after a long delay is also relevant." Mitchell, supra, 126 N.J. at 580. Thus, "we reject the notion that defendant did not appreciate" that he had to file a timely PCR petition. See State v. Milne, 178 N.J. 486, 494 (2004).2


Defendant contends that Rule 3:22 12's five-year limit should not apply because "deportation should be treated in this case as a 'sentence' in which its legality is at issue." Defendant notes that Rule 3:21-10(b)(5) provides that a motion seeking to "correct[] a sentence not authorized by law" "may be filed . . . at any time."

"[A]n illegal sentence is one that 'exceeds the maximum penalty provided in the [New Jersey Criminal] Code for a particular offense' or a sentence 'not imposed in accordance with law.'" State v. Acevedo, 205 N.J. 40, 45 (2011). Here, defendant was sentenced to four years probation, ninety days in jail, and restitutionary payments. Defendant does not allege this sentence is unlawful but, instead, that the removal consequences of his guilty plea should be considered a 'sentence.' Defendant points to no authority that the potential federal removal consequences of a guilty plea can render a sentence imposed by a state court illegal.

We conclude that defendant has failed to show excusable neglect, a reasonable probability of injustice, or any other basis to excuse the untimeliness of his petition. Therefore, the PCR court did not err in dismissing defendant's petition without an evidentiary hearing. See State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).


We turn now to defendant's ineffective assistance of counsel claim regarding his 2007 conviction. Defendant's PCR petition alleged that plea counsel advised him only that he "might face a possibility of deportation or removal from the United States as a consequence of [his] guilty plea." Defendant claims counsel should have warned him he was facing mandatory removal. Even if criminal mischief under N.J.S.A. 2C:17 3(a)(1) is an aggravated felony, see 8 U.S.C.A. 1101(a)(43)(E)(i), rendering defendant "deportable," see 8 U.S.C.A. 1227(a)(2)(A)(iii), as the PCR court found, plea counsel was not required to advise defendant whether his removal was mandatory at this pre-Padilla plea. See Gaitan, supra, 209 N.J. at 371.

Under pre-Padilla law, defendant must show that his plea counsel provided "false or misleading [material] information" concerning the potential removal consequences of his plea. Nu ez Vald z, supra, 200 N.J. at 138 40. Defendant has failed to show any false or misleading advice that he received from counsel. To the contrary, plea counsel testified at the evidentiary hearing that he "researched the Defendant's charges and explained the charges and their consequences to the Defendant" and that "while he did not precisely recall what constituted an aggravated felony, he would have researched the applicable statutes relating to aggravated felonies in accordance with his best practices." Plea counsel further testified that he had "no doubt" he discussed Question 17 with defendant. He also advised defendant that "entering a plea of guilty to the amended charge could have effects under the Patriot Act, one of which would result in his deportation."3 The PCR court credited plea counsel.

Defendant testified that plea counsel told him he "shouldn't be thinking about" the removal consequences of his plea. The PCR court discredited defendant's testimony, however. Defendant also testified that plea counsel told him only that he "might" or "may or may not" be removed, and that he "might not be affected" because he had been in the United States so long. Defendant has not shown that such advice was incorrect or affirmatively misleading. Similarly, defendant acknowledges that the plea court advised him that he could be subject to removal, that plea counsel explained Question 17 on the plea form to him, and that defendant circled "Yes" to Question 17 on the plea form. Defendant, "at a minimum, was put on notice of the issue of potential immigration consequences through the plea form, which distinguishes this matter from Nu ez Vald z, where the defendant received false and affirmatively misleading information." Gaitan, supra, 209 N.J. at 374.

Defendant also claims that plea counsel told defendant's mother that he "can't win the case," and that defendant "has to take the plea because . . . he's already got eight years and if he doesn't take the plea this time" he would not get a concurrent sentence. Defendant also claims that plea "counsel applied financial pressure to the family members in an effort to have them convince defendant into accepting the plea deal," and that plea counsel never visited, wrote, or "discussed anything" about the case with defendant. However, defendant provided no evidence to corroborate that testimony, which the PCR judge did not deem credible.

Defendant also alleges that he was unaware of the fact that he faced "additional mandatory incarceration without the possibility of bail." He apparently is referencing immigration detention, which can be a consequence of removal proceedings. As counsel's advice concerning removal was not ineffective, defendant's argument is without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Thus, there was "sufficient, credible evidence in the record" to support the trial court's factual and credibility determinations, and we find no basis in the record to overturn Judge Guzman's findings. Nu ez Vald z, supra, 200 N.J. at 141.

We affirm the PCR court's orders in both appeals.



1 "'Removal' is the current statutory term for what was known in the past as 'deportation.'" State v. Gaitan, 209 N.J. 339, 345 n.1 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).

2 "Ignorance of the law and rules of court does not qualify as excusable neglect." State v. Merola, 365 N.J. Super. 203, 218 (Law Div. 2002) (citing State v. Murray, 162 N.J. 240, 246 (2000)), aff'd o.b., 365 N.J. Super. 82, 84 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

3 Plea counsel did not specify what provisions he was referencing in the USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272 (2001). Regardless, defendant has failed to allege any false or misleading advice resulting from counsel's reference to the act.

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