STATE OF NEW JERSEY v. ROBERT J. HEBERT

NOT FOR PUBLICATION WITHOUT THE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.

ROBERT J. HEBERT,

Defendant-Appellant.

________________________________________________________________

December 22, 2015

Argued November 17, 2015 Decided

Before Judges Fisher and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 96-04-0537.

Justin T. Loughry argued the cause for appellant (Loughry and Lindsay, LLC, attorneys; Mr. Loughry, on the brief).

Catherine A. Foddai, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Foddai, of counsel and 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 is a Canadian citizen and was a permanent resident of the United States at the time of his conviction. Approximately nineteen years ago, defendant pled guilty to third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1), pursuant to a plea agreement.

The plea form he executed included this 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?" Defendant circled "Yes" in response.1 Notwithstanding the contents of the form, defendant contends and we accept as true that prior to the entry of his guilty plea, his trial counsel erroneously advised him that the conviction would not lead to his deportation.

At the plea hearing, the prospect of deportation was not directly addressed. The judge questioned defendant about his understanding and responses to the plea form, found a factual basis for the guilty plea and that defendant entered the plea intelligently, knowingly and voluntarily. Defendant was sentenced to three years of noncustodial probation, which was transferred to Virginia, where he was residing, and a six-month license revocation on December 20, 1996. He did not file a direct appeal.

Defendant began traveling between the United States and Canada in 2002. His conviction posed no obstacle to him entering the United States, and he was able to travel "without difficulty." However, in 2004, border officials stopped him from reentry due to his extended absence from the country. The officials seized his green card and advised that he must obtain a waiver to enter the United States because of his conviction.2

Defendant applied for and was granted a waiver for August 2009 to August 2010. In mid-2010, defendant was denied entry into the United States. He was informed by a border official that he "would never be able to reside in the U.S." due to his conviction. Defendant subsequently sought legal counsel.

In 2011, defendant met with an immigration attorney who informed him that his conviction "created an absolute barrier to . . . having any immigration status in [the United States]," his deportation was mandatory and his sole remedy was to have his conviction vacated or obtain a pardon. Defendant states he "immediately" began to search for an attorney in New Jersey and retained counsel in late 2011 or early 2012. Defendant filed a PCR petition in September 2013,3 alleging ineffective assistance of counsel by his trial attorney for incorrectly advising him that deportation would not be a consequence of his guilty plea.

The PCR judge denied defendant's petition, concluding that although he demonstrated a prima facie case of ineffective assistance of counsel under State v. Nunez-Valdez, 200 N.J. 129 (2009), his petition was not timely filed and he failed to allege grounds sufficient to demonstrate that the delay in filing was the result of excusable neglect. The judge found defendant had notice of the grounds for PCR in 2004 when he, during an attempt to reenter the United States, was detained by border officials and informed that he would need to obtain a waiver to gain entry as a result of his conviction.

On appeal, defendant presents the following arguments

POINT I

COUNSEL'S FAILURE TO GIVE CORRECT LEGAL ADVICE AS TO THE OBVIOUS AND STRAIGHT FORWARD IMMIGRATION CONSEQUENCES OF THIS GUILTY PLEA TO A FELONY INVOLVING POSSESSION OF COCAINE DEPARTED FROM AND LAY OUTSIDE THE RANGE OF COMPETENCE DEMANDED OF ATTORNEYS IN CRIMINAL CASES.

POINT II

THE PETITONER [SIC] DEMOSTRATED [SIC] EXCUSABLE NEGLECT.

After reviewing these arguments in light of the record and applicable legal principles, we conclude neither have any merit.

We agree with the PCR court's determination that defendant had a viable claim for ineffective assistance of counsel pursuant to our Supreme Court's holding in Nunez-Valdez, and the State does not contest this conclusion. Nunez-Valdez, supra, 200 N.J. at 138-39 ("[C]ounsel renders ineffective assistance [by] provid[ing] false or misleading information concerning the deportation consequences of a plea of guilty."); see Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). However, the filing of defendant's petition seventeen years after his conviction was plainly untimely.

The first filing of a PCR petition must not be "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 . . . was due to defendant's excusable neglect." R. 3:22-12(a)(1). This time bar may be relaxed only in "exceptional circumstances." State v. Afanador, 151 N.J. 41, 52 (1997); State v. Mitchell, 126 N.J. 565, 580 (1992). In Mitchell, the Court provided guidance for determining whether such exceptional circumstances exist

The court should 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" sufficient to relax the time limits. As we have made clear, the longer the time-span since the original trial, the more difficult a retrial becomes. Absent compelling, extenuating circumstances, the burden of justifying a petition filed after the five-year period will increase with the extent of the delay. The prejudice to the State's ability to litigate the case after a long delay is also relevant. If the key witnesses are unlikely to be available, evidence has disappeared, or other obstacles are present, allowing the petition for post-conviction relief will unduly prejudice the State's ability to bring its case. These concerns must, however, be balanced against the significance of the petitioner's interest in raising his or her petition. If the petitioner articulates facts that demonstrate a serious question about his or her guilt or the propriety of the sentence imposed and is prepared to provide factual evidence to support it, then sufficient grounds for relaxing the Rule might exist. In other words, a court should determine that the procedural rule as applied is unjust only when a significant liberty interest is at stake and the petitioner has offered something more than a bare allegation that that is so.

[Mitchell, supra, 126 N.J. at 580 (emphasis added).]

Defendant does not contend that a serious question about his guilt exists or that the sentence imposed was improper. He has been able to remain in or travel to the United States by obtaining waivers. The liberty interest that he argues is at risk is an unrestricted ability to remain here without regard to discretionary acts on the part of the immigration service.

Defendant argues he did not have notice of the deportation consequences of his plea until 2011 when an attorney explicitly told him that the conviction mandated his removal. Defendant does not dispute he was made aware of this issue in 2004, rather, he affirmatively states: "Admittedly, in 2004 he learned that he had a problem on account of his legal history." He asserts that because he was assured he could resolve the issue by obtaining waivers, he was not sufficiently aware of the magnitude of the problem to prompt him to act. Defendant contends he "acted as a reasonably prudent person" under these circumstances and that he is a "layman, not a lawyer."

Defendant's "lack[] [of] sophistication in the law does not satisfy the exceptional circumstances required by [Mitchell, supra]." State v. Murray, 162 N.J. 240, 246 (2000). "The concept of 'excusable neglect' encompasses more than simply providing a plausible explanation for a failure to file a timely PCR petition." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). To be entitled to a relaxation of the Rule based upon excusable neglect, the petitioner must "allege[] facts demonstrating that the delay was due to the defendant's excusable neglect" and, "[i]f the petitioner does not allege sufficient facts, the Rule bars the claim." Mitchell, supra, 126 N.J. at 576.

Defendant's judgment of conviction was entered in December 1996; he did not take any action until 2011 and ultimately filed his petition in September 2013. We agree with the trial court that defendant "first became aware . . . there was an issue" in 2004 when his conviction prevented his entry into the United States. At that time, he was apprised of the deportation consequence to his conviction, which directly contradicted what his trial counsel had told him prior to the entry of his guilty plea. This knowledge was sufficient to require his action; it was not excusable neglect for him to delay action until a lawyer provided him with advice on how to proceed.

Because the delay here was well beyond the five-year period, defendant's burden in justifying the delay is a heavy one and he has not demonstrated "compelling, extenuating circumstances" that satisfy that burden. See Mitchell, supra, 126 N.J. at 580. We are satisfied from our review of the record that defendant has failed to set forth facts demonstrating his delay was due to excusable neglect, warranting relief from the five-year time bar provided under Rule 3:22-12(a)(1). Moreover, in light of the fact that no serious question exists regarding defendant's guilt or sentence, we conclude no injustice results from the application of the time bar here.

Affirmed.

1 Defendant initially circled "N/A," but later drew an "X" through the circled "N/A," wrote his initials next to the edit and then circled "Yes." Defendant does not dispute that he responded affirmatively to this question.

2 Border officials further advised defendant he could reapply for his green card after obtaining a waiver.

3 PCR counsel stated he was not able to immediately file the petition because he had difficulty procuring defendant's trial records.