STATE OF NEW JERSEY v. JOHANNA RAMOS GRANDE
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2560-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHANNA RAMOS GRANDE,
Defendant-Appellant.
________________________________
Submitted January 9, 2018 – Decided April 20, 2018
Before Judges Fasciale and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Somerset County, Accusation No.
04-08-0563.
Leschak & Associates, LLC, attorneys for
appellant (John P. Leschak, on the brief).
Michael H. Robertson, Somerset County
Prosecutor, attorney for respondent (Perry
Farhat, Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant Johanna Ramos Grande, non-citizen of the United
States, pled guilty to an accusation of third-degree exhibiting a
simulated document (a fraudulent social security card) and fourth-
degree exhibiting a simulated document (a fraudulent resident
alien card). On September 17, 2004, she was sentenced in
accordance with her plea agreement to a one-year term of probation.
She did not appeal her conviction or sentence. However, almost
twelve years later, she filed a post-conviction relief (PCR)
petition on June 27, 2016, alleging trial counsel failed to advise
her that she was eligible for Pre-Trial Intervention (PTI); failed
to advise her she could be deported due to her plea; and failed
to advise her to consult with an immigration attorney regarding
the immigration consequences of her plea. The PCR judge issued
an order denying PCR without an evidentiary hearing together with
a written statement of reasons. On appeal, defendant argues:
[POINT I:] APPELLANT'S PCR SHOULD HAVE NOT
BEEN TIME-BARRED UNDER [RULE] [3:22-12(A)]
BECAUSE THE TRIAL COURT'S FAILURE TO PROPERLY
ADVISE THE APPELLANT OF THE IMMIGRATION
CONSEQUENCES OF HER GUILTY PLEA CONSTITUTED
EXCUSABLE NEGLECT UNDER STATE V. ANTUNA, . . .
446 N.J. SUPER. 595 (APP. DIV. 2016),
PERMITTING RELAXATION OF THE [FIVE] YEAR
FILING DEADLINE UNDER BOTH [RULES] 7:10-
2(b)(2) and/or . . . 1:1-2.
[POINT II:] IT WAS LEGAL ERROR FOR THE TRIAL
COURT TO CONCLUDE THAT APPELLANT'S COUNSEL'S
FAILURE TO ADVISE HER OF THE IMMIGRATION
CONSEQUENCES DID NOT CONSTITUTE EXCUSABLE
NEGLECT JUSTIFYING THE LATE FILING OF HER PCR.
[POINT III:] IT WAS LEGAL ERROR TO CONCLUDE
THAT PRIOR COUNSEL'S FAILURE TO HAVE
[APPELLANT] APPLY FOR PTI WAS NOT INEFFECTIVE
ASSISTANCE OF COUNSEL BECAUSE [APPELLANT] WAS
2 A-2560-16T3
ELIGIBLE FOR PTI UNDER THEN-EXISTING
GUIDELINES.
[POINT IV:] COUNSEL'S FAILURE TO ADVISE
[APPELLANT] OF THE IMMIGRATION CONSEQUENCES OF
HER GUILTY PLEA CONSTITUTED INEFFECTIVE
ASSISTANCE OF COUNSEL PURSUANT TO ANTUNA AND
THE COURT'S CONCLUSION TO THE CONTRARY WAS
LEGAL ERROR.
For the reasons that follow, we affirm in part, reverse in part,
and remand for an evidentiary hearing.
To prove ineffective assistance of plea counsel, a defendant
must show that counsel's performance was deficient and but for
counsel's errors, there is a reasonable probability that defendant
would not have pled guilty. Strickland v. Washington,
466 U.S. 668, 687, 694 (1984); State v. DiFrisco,
137 N.J. 434, 457 (1994).
The PCR court must consider the facts in the light most favorable
to the defendant to determine if a defendant has established a
prima facie claim. State v. Preciose,
129 N.J. 451, 462-63 (1992).
A first petition for PCR must be filed within five years of
the date of the judgment of conviction. R. 3:22-12(a)(1). A late
filing may be considered if the petition itself shows excusable
neglect for the late filing and that a fundamental injustice will
result if defendant's claims are not considered on their merits.
State v. Brewster,
429 N.J. Super. 387, 400 (App. Div. 2013).
3 A-2560-16T3
In determining whether to relax the time bar, a 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." State v. McQuaid,
147 N.J. 464, 485 (1997) (quoting
State v. Mitchell,
126 N.J. 565, 580 (1992)). Absent compelling
extenuating circumstances, the burden to justify filing a petition
after the five-year period will increase with the extent of the
delay. State v. Afanador,
151 N.J. 41, 52 (1997). "Where the
deficient representation of counsel affected 'a determination of
guilt or otherwise wrought a miscarriage of justice,' a procedural
rule otherwise barring post-conviction relief may be overlooked
to avoid a fundamental injustice." Brewster,
429 N.J. Super. at
400 (quoting Mitchell,
126 N.J. at 587).
We first address defendant's argument that the five-year time
bar to seek PCR after her conviction should be relaxed because she
first became aware that her conviction could result in her
deportation when she sought to change her immigration status in
2016 seven years after her conviction. We agree with the PCR
court that there was no excusable neglect for defendant's failure
to file a timely claim that counsel failed to advise her regarding
the immigration consequences of her plea, and therefore no
4 A-2560-16T3
injustice would result in not relaxing the time bar for that
reason.
When she pled guilty, defendant circled "Yes" to plea form
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?" With the assistance of a Spanish
interpreter, she testified during her plea colloquy that she
understood she had a right to go to trial, that she understood the
charges and the terms of the plea offer, which she discussed with
counsel. Defendant also acknowledged that she signed, initialed
and understood the plea forms, and that no one forced, coerced,
or encouraged her to plead guilty. Counsel represented to the
trial court that, with the interpreter's assistance, he reviewed
the plea form with defendant and she answered the plea form. Since
it is clear that when she pled guilty defendant was aware that she
could be deported, we see no reason to disagree with the PCR court
that defendant sat on her rights and did not consult with an
immigration attorney regarding the consequences of her plea.
Furthermore, because defendant's convictions predated the
Supreme Court's seminal 2010 opinion in Padilla v. Kentucky,
559 U.S. 356, 367 (2010) concerning deportation consequences to a
criminal defendant, her claims are governed by the standards of
State v. Nunez-Valdez,
200 N.J. 129, 143-44 (2009). Under those
5 A-2560-16T3
pre-Padilla standards, a defendant seeking relief based upon post-
conviction deportation consequences can only prevail upon a
demonstration that counsel affirmatively provided misleading
advice about such consequences flowing from a guilty plea. Id.
at 139-43, see also State v. Santos,
210 N.J. 129, 143 (2012).
Thus, the previous standard under State v. Chung,
210 N.J. Super.
427, 431 (App. Div. 1986) (citing State v. Reid,
148 N.J. Super.
263 (App. Div. 1977)), that a defendant's failure to understand a
"collateral consequence" of his guilty plea, such as immigration
status or possible removal, was not a basis to disturb an otherwise
knowing and voluntary guilty plea. Counsel therefore had no duty
to inform a client of such consequences, and his or her
representation was deemed constitutionally ineffective only if
misinformation was given to the client about the immigration
consequences of pleading guilty. State v. Gaitan,
209 N.J. 339,
375 (2012). And as the court properly recognized here, defendant
did not allege counsel misadvised her about the immigration
consequences of her plea; hence, there was no excusable neglect
to relax the time bar and allow her to prosecute that PCR claim.
We further add that, even if the time bar did not apply, the
same reasoning – defendant was fully aware that she could be
deported due to her conviction – dictates that defendant did not
establish a prima facie claim of ineffective assistance of counsel.
6 A-2560-16T3
We, however, differ with the PCR court's finding that
defendant's ineffective assistance claim regarding counsel's
failure to advise her that she was eligible to apply to PTI should
also be time barred. Although her 2004 plea form evinces she was
aware of the deportation consequences of her plea, her failure to
raise the PTI claim within five years of her conviction was
excusable and not considering the merits of the claim is
fundamentally unjust. She certifies she was unaware until 2016
that she was eligible for PTI – based upon the charges and her
lack of a criminal record – to resolve the charges without pleading
guilty or gambling on the inherent risk of a trial. Obviously,
we cannot speculate and conclusively say she would have been
accepted into PTI had she applied. Nonetheless, viewing the facts
in the light most favorable to the defendant, Preciose,
129 N.J.
at 462-63 (1992), she has established a prima facie case of
ineffective assistance of counsel for not advising her that she
was eligible for PTI. Consequently, we disagree with the PCR
court that counsel's decision not to have her apply to PTI
constitutes trial strategy because the question of a defendant's
immigrant status as a disqualifier for PTI was not settled until
after her 2004 conviction; in 2007 we held in State v. Liviaz,
389 N.J. Super. 401, 408 (App. Div. 2007), that the sole reason for
denying entry into PTI due to illegal alien status is a patent and
7 A-2560-16T3
gross abuse of a prosecutor's discretion. Based upon the record
before us, we can envision no sensible reason why counsel would
employ a trial strategy not to pursue PTI for defendant, a first-
time offender, when pleading guilty threatened her ability to
remain in this country.
Because we conclude defendant has made a prima facie claim
of ineffective assistance of counsel, we remand for an evidentiary
hearing to require defendant to prove that counsel in fact failed
to advise her that she was eligible for PTI and the consequences
thereof. Preciose,
129 N.J. at 462 (1992).
Affirmed in part, reversed in part, and remanded for an
evidentiary hearing consistent with this opinion. We do not retain
jurisdiction.
8 A-2560-16T3
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