STATE OF NEW JERSEY v. RICK R. CONTRERAS

NOT FOR PUBLICATION WITHOUT THE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.

RICK R. CONTRERAS, a/k/a

IVAN DILONE,

Defendant-Appellant.

_______________________________

August 11, 2014

Before Judges Lihotz and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 99-12-1379.1

Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief).

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Rick R. Contreras appeals from the denial of his petition for post-conviction relief (PCR), which alleged ineffective assistance of counsel. Defendant, who was born in the Dominican Republic, sought to vacate his February 22, 2000 guilty plea, asserting counsel misadvised him of the deportation consequences of his conviction. Defendant also maintains the court erred in denying his request for an evidentiary hearing.

On appeal, defendant specifically argues:

POINT I

[THE PCR JUDGE] ERRED IN FINDING THAT MR. CONTRERAS'S MOTION TO WITHDRAW HIS GUILTY PLEA PURSUANT TO R. 3:21-1 WAS A PRIOR PETITION FOR POST-CONVICTION RELIEF UNDER R. 3:22-2 (NOT RAISED BELOW).

POINT II

[THE PCR JUDGE] ERRED IN DENYING MR. CONTRERAS'S PETITION FOR POST-CONVICTION RELIEF BY MISTAKENLY BELIEVING THAT IT WAS BARRED BY R. 3:22-5 AS HAVING BEEN PREVIOUSLY EXPRESSLY ADJUDICATED.

POINT III

THE ORDER DENYING THE PETITION FOR POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE CREDIBILITY DETERMINATIONS ON WHICH THE DENIAL WAS BASED ARE NOT SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE.

POINT IV

THE MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE MR. CONTRERAS PRESENTED A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL THROUGH AN UNCONTESTED AVERMENT THAT HIS ATTORNEY PROVIDED AFFIRMATIVE MISADVICE. U.S. CONST. AMEND. VI; N.J. CONST. ART. 1, PAR. 10.

Following our consideration of these arguments in light of the record and applicable law, we reject defendant's contentions as unfounded and conclude his petition is untimely. We affirm the denial of PCR.

Defendant pled guilty to third-degree distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3). The State recommended, and the court agreed, to impose a four-year non-custodial probationary term.

During the plea hearing, there was no discussion regarding possible immigration consequences of defendant's conviction. However, the plea agreement, which defendant read and understood, included question 17 which stated: "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?"

On September 22, 2003, the United States Department of Homeland Security began deportation proceedings against defendant. Defendant then moved to vacate his guilty plea. A different Law Division judge denied that motion on April 9, 2007; defendant did not file an appeal.

Defendant submitted this petition for PCR on September 25, 2012, in which he alleged counsel affirmatively misadvised him as to the deportation consequence of his guilty plea. Defendant asserted counsel stated "the plea definitely would not result in deportation because it did not involve incarceration." Defendant asserted he would not have accepted the plea and would have gone to trial if he understood he would be deported. He also requested an evidentiary hearing.

The PCR judge considered defendant's petition as a second PCR application, noting he had previously moved to vacate his guilty plea. He denied PCR, finding the petition untimely, and denied the request for an evidentiary hearing, after concluding defendant failed to present a prima facie case of ineffective assistance of counsel. This appeal followed.

"'Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus.'" State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459, (1992)). To set aside a conviction based upon a claim of ineffective assistance of counsel, a petitioner must prove, by a preponderance of the evidence, that (1) counsel performed deficiently and made serious errors depriving a defendant of his right to effective representation; and (2) defendant suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Our Court has adopted the Strickland two-part test when examining PCR petitions. State v. Fritz, 105 N.J. 42, 58 (1987).

To establish a prima facie case of ineffective assistance of counsel, Strickland's first prong requires a defendant to demonstrate "counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. This demands a showing that counsel was so deficient "that counsel was not functioning as the counsel guaranteed by the Sixth Amendment . . . ." State v. Gaitan, 209 N.J. 339, 349-50 (2012) (citation and internal quotation marks omitted), cert. denied, __ U.S. __, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). Thus, "[t]his test requires the defendant to identify specific acts or omissions that are outside the wide range of reasonable professional assistance . . . ." State v. Jack, 144 N.J. 240, 249 (1996) (citation and internal quotation marks omitted). "The test is not whether defense counsel could have done better, but whether he [or she] met the constitutional threshold for effectiveness." State v. Nash, 212 N.J. 518, 543 (2013).

In this regard, a defendant must articulate "specific facts" that "provide the court with an adequate basis on which to rest its decision" the defendant established a prima facie case of ineffective assistance of counsel. State v. Mitchell, 126 N.J. 565, 579 (1992). "[B]ald assertions," unaccompanied by evidential support, are insufficient. State v. Cummings, 321 N.J.Super. 154,170 (App.Div.), certif.denied, 162N.J. 199(1999).

To satisfythe secondprong, "[a]defendant mustshow thatthere is a reasonable probability that, but for counsel's unprofessionalerrors, theresult ofthe proceedingwould have been different." Strickland, supra,466 U.S.at 694,104 S. Ct. at 2068,80 L.Ed. 2dat 698. "A reasonableprobability isa probability sufficient to undermine confidence in the outcome." Ibid.

Defendant suggests his 2007 motion to vacate his guilty plea should not be considered a request for PCR. Substantively, however, the motion was filed following his conviction and sentence, and in fact sought PCR.

Once a defendant is sentenced, withdrawal of a guilty plea is available only if the defendant's conviction is "manifestly unjust." State v. Slater, 198 N.J. 145, 156 (2009). See also R. 3:21-1. In making such an analysis,

trial judges are to consider and balance four factors in evaluating motions to withdraw a guilty plea: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of [the] defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.

[Slater, supra, 198 N.J. at 157-58 (citation omitted).]

In the context of a PCR petition seeking to set aside a guilty plea, the first Strickland prong is satisfied when a defendant establishes a reasonable probability he would not have pled guilty but for counsel's errors. Gaitan, supra, 209 N.J. at 351. The second prong is met when a defendant establishes a reasonable probability he or she would have insisted on going to trial. Ibid.

Here, defendant's motion to vacate his plea was denied and he never appealed from that order. In this light, we conclude the trial judge correctly viewed defendant's current PCR application as his second request for PCR.

The significance of whether this is a first or second filing implicates specific limitation periods for presenting PCR requests provided in our court rules. The time bars governing PCR petitions reflect the strong public policy interest in promoting finality in judicial proceedings. State v. Echols, 199 N.J. 344, 357 (2009).

Rule 3:22-12(a)(1) provides a time limit for the first filing of a PCR petition. It specifies that

no petition shall be filed pursuant to this rule more than [five] 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 fund to be true enforcement on the time bar would result in a fundamental injustice.

[Ibid.]

The five-year period begins when the judgment of conviction is entered and is "generally neither stayed nor tolled by an appellate or other proceeding." State v. Murray, 162 N.J. 240, 249 (2000) (citations omitted).

The principal purpose of Rule 3:22-12(a) is to "encourage defendants reasonably believing they have grounds for post-conviction relief to bring their claims swiftly and discourage[] them from sitting on their rights until it is simply too late for a court to render justice." Cummings, supra, 321 N.J. Super. at 165 (citing Mitchell, supra, 126 N.J. at 576). Encouraging litigants to file promptly serves two functions: avoiding prejudice to the State resulting from retrying contested issues long after they are resolved, and respecting the need for finality in judicial determinations. Ibid. (citation omitted).

The five-year time bar established by Rule 3:22-12(a)(1) is relaxed only in "exceptional circumstances." State v. Afanador, 151 N.J. 41, 52 (1997). In determining whether or not exceptional circumstances exist, courts consider "the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an 'injustice . . . .'" Ibid. (quoting Mitchell, supra, 126 N.J. at 580). Without "compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay." Ibid. (citing Mitchell, supra, 126 N.J. at 580).

Rule 3:22-12(a)(2) bars a second or subsequent petition not filed within a year of:

(A) the date on which the constitutional right asserted was initially recognized by the United States Supreme Court or the Supreme Court of New Jersey, if that right has been newly recognized by either of those Courts and made retroactive by either of those Courts to cases on collateral review; or

(B) the date on which the factual predicate for the relief sought was discovered, if that factual predicate could not have been discovered earlier through the exercise of reasonable diligence; or

(C) the date of the denial of the first or subsequent application for post-conviction relief where ineffective assistance of counsel that represented the defendant on the first or subsequent application for postconviction relief is being alleged.

Applying these rules, even if we generously assume the petition satisfies the standards for Rule 3:22-12(a)(2)(C), which we doubt, defendant's PCR petition should have been filed no later than April 9, 2010. This is the latest possible date for filing PCR, as under the provisions of subsections (A) or (B), the limitations period expired sooner. Accordingly, defendant's petition was filed out of time.

Defendant became aware of the deportation consequences attached to his conviction in 2003. Atthat time,he recognizedhe believed counsel failed to properly inform him of this issue. Hemoved tovacate hisguilty plea,which was denied in 2009. He took nofurther actionuntil September 25, 2012 when he filed for PCR.

Assuming for the sake of argument, the motion to vacate defendant's guilty plea is not a petition for PCR as defendant contends, the limitation for filing a first PCR petition expired on May 1, 2005. Additionally, defendant offers no facts satisfying the "exceptional circumstances" standards warranting relaxation of Rule 3:22-12.

Defendant also maintains a hearing was necessary. However, merely raising a claim of ineffective assistance of counsel does not entitle a defendant to an evidentiary hearing. Cummings, supra, 321 N.J. Super. at 170. Evidentiary hearings should be granted to determine the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462. We reject the assertion the PCR judge abused his discretion when denying defendant's hearing request in this matter. Ibid.

For completeness, we briefly address the claim of affirmative misadvice regarding deportation. In State v. Nu ez-Vald z, 200 N.J. 129, 143 (2009), the Court held "a defendant can show ineffective assistance of counsel by proving that his guilty plea resulted from 'inaccurate information from counsel concerning the deportation consequences of his plea.'" State v. Brewster, 429 N.J. Super. 387, 392 (2013) (quoting Nu ez-Vald z, supra, 200 N.J. at 143). The United States Supreme Court clarified counsel's duty is not limited to avoiding "false or misleading information" as identified in Nu ez-Vald z, supra, 200 N.J. at 138, but encompasses an affirmative duty to inform a defendant entering a guilty plea, regarding the relevant mandatory deportation law if it is "succinct, clear, and explicit . . . ." Padilla v. Kentucky, 559 U.S. 356, 368, 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284, 295 (2010). The Court made clear counsel's "failure to advise a noncitizen client that a guilty plea will lead to mandatory deportation deprives the client of the effective assistance of counsel guaranteed by the Sixth Amendment." State v. Barros, 425 N.J. Super. 329, 330-31 (App. Div. 2012) (citing Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296).

In Chaidez v. United States, __ U.S. __ , 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013), the Court held Padilla imposed a new obligation and announced a new rule of law. Accordingly, its holding only would be applied prospectively and "[u]nder Teague [v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989)], defendants whose convictions became final prior to Padilla, therefore cannot benefit from its holding." Chaidez, supra, __ U.S. at __, 133 S. Ct. at 1113, 185 L. Ed. 2d at 162.

At the time he entered his plea, defendant reviewed and understood question 17, making him aware he may be deported as a result of his guilty plea. Counsel's belief that deportation was not likely proved wrong. Nevertheless, assuming that belief satisfies the Nu ez-Vald z standard of affirmative misadvice, defendant failed to file his PCR petition within one year of that decision. R. 3:22-12(a)(2).

In sum, we conclude defendant's PCR petition was untimely under Rule 3:22-12(a)(2) and otherwise failed to establish a substantive basis for relief. Consequently, as required by Rule 3:22-4(b), it was properly dismissed.

Affirmed.

1 Defendant was indicted and pled guilty in Middlesex County; however, his PCR petition was transferred to Union County because of a then existing conflict of interest.