STATE OF NEW JERSEY v. STEVE GREGORY BROWN

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3104-16T2


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

STEVE GREGORY BROWN,
a/k/a STEVE GREGORY BALBOSA,

     Defendant-Appellant.
______________________________

              Submitted January 29, 2018 – Decided March 8, 2018

              Before Judges Messano and O'Connor.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No.
              05-09-0820.

              Eric M. Mark, attorney for appellant.

              Robert D. Laurino, 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 Steve Gregory Brown appeals from an order denying

his petition for post-conviction relief (PCR).                We affirm.
                                I

     In 2005, defendant pled guilty to third-degree possession

of a controlled dangerous substance (cocaine) with intent to

distribute, 
N.J.S.A. 2C:35-5.   On November 7, 2005, he was

sentenced to a four-year term of probation.   He did not file a

direct appeal.

     In March 2016, the Department of Homeland Security

initiated removal proceedings against defendant, a non-citizen

of the United States, based upon his conviction.     With the

assistance of PCR counsel, in November 2016 defendant filed a

verified petition for post-conviction relief.    The issues

defendant raised in his petition relevant to those he asserts on

appeal are plea counsel was ineffective because he failed to:

(1) advise defendant he would be removed if he pled guilty to

the subject offense, and (2) negotiate a plea agreement whereby

defendant would plead guilty to a "non-deportable" offense.

      On February 14, 2017, the PCR court denied defendant the

relief requested in his petition.   The court found defendant's

petition time-barred pursuant to Rule 3:22-12(1)(a), because it

had been filed more than five-years after the judgment of

conviction was entered on November 7, 2005.     The court rejected

defendant's claims he demonstrated excusable neglect for the

delay in filing his petition and that enforcement of the time

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bar would result in a fundamental injustice.   Substantively, the

court found there were no facts to support that plea counsel had

been ineffective.

                                 II

     On appeal, defendant argues the PCR court erred because it

rejected his contentions plea counsel had been ineffective and

found his petition was time-barred.    As for the procedural bar,

defendant claims plea counsel's failure to advise he could be

removed from the country as a result of the conviction

constituted excusable neglect.   He further contends removal will

result in a fundamental injustice because he will be separated

from his fiancée and three children.

     We concur with the PCR court that defendant's petition is

time-barred.   Rule 3:22-12(a)(1) provides in pertinent part:

         [N]o 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:

               (A) 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 . . . .

               [Rule 3:22-12(a)(1).]


                                 3                        A-3104-16T2
     In State v. Brewster, 
429 N.J. Super. 387, 400 (App. Div.

2013), we considered but rejected a similar argument,

specifically, that receiving inaccurate deportation advice from

counsel constitutes excusable neglect.       We held imparting

allegedly deficient advice does not equate with excusable

neglect because, if it did, "long-convicted defendants might

routinely claim they did not learn about the deficiencies in

counsel's advice on a variety of topics until after the five-

year limitation period had run."     Ibid.

     Further, defendant has not demonstrated a "fundamental

injustice" will result if the five-year bar is enforced. Our

Supreme Court has held that a "fundamental injustice" requires

"'some showing' that an error or violation 'played a role in the

determination of guilt.'"   State v. Nash, 
212 N.J. 518, 547

(2013) (quoting State v. Laurick, 
120 N.J. 1, 13 (1990)).

Defendant's claim he will be separated from his family if

removed does not implicate his guilt of the subject charge.        In

sum, defendant's petition was filed beyond the five-year

deadline, and he failed to establish excusable neglect and a

fundamental injustice.   Accordingly, his petition is time-

barred.

     Second, defendant has failed to make out a prima facie case

plea counsel had been ineffective.    To prevail on a claim of

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ineffective assistance of counsel, defendant must meet a two-

prong test.   Strickland v. Washington, 
466 U.S. 668, 694 (1984).

The first prong requires defendant prove counsel's performance

was deficient and his errors so egregious counsel was not

functioning effectively as guaranteed by the Sixth Amendment to

the United States Constitution.       Ibid.

     In a matter where a defendant has pled guilty, the second

prong requires defendant show "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. Nuñez-Valdéz, 
200 N.J. 129, 139 (2009) (alteration in

original) (quoting State v. DiFrisco, 
137 N.J. 434, 457 (1994)).

     At the time Nuñez-Valdéz was decided, an attorney was not

required to give any advice about the deportation consequences

of pleading guilty.   However, in that case our Court held a

defendant meets the first prong of the Strickland test if the

attorney renders false or affirmatively misleading advice about

the deportation consequences of pleading guilty.   Id. at 140-42.

     Within a year Nuñez-Valdéz was decided, the United States

Supreme Court held in Padilla v. Kentucky, 
559 U.S. 356, 368

(2010), that the Sixth Amendment obligation to render effective

assistance requires criminal defense attorneys to inform clients

of the possible immigration consequences of entering a guilty

                                  5                        A-3104-16T2
plea.    Notwithstanding, our Supreme Court in State v. Gaitan,


209 N.J. 339, 373 (2012), held that because Padilla established

a new rule of law, the holding in Padilla applied prospectively

only.    Thereafter, the United States Supreme Court reached the

same conclusion, finding Padilla did not apply retroactively.

Chaidez v. United States, 
568 U.S. 342, 357-58 (2013).

        Accordingly, guilty pleas entered prior to Padilla are

reviewed to determine whether counsel provided affirmatively

false or misleading information regarding the plea's immigration

consequences.     State v. Santos, 
210 N.J. 129, 143-44 (2012).

"Only if defendant's attorney affirmatively gave incorrect

advice about the deportation consequences of his guilty plea

might he be entitled to set aside his conviction in accordance

with the holding of Nuñez-Valdéz."     Brewster, 
429 N.J. Super. at
 394-95.

        Here, defendant entered his plea prior to Padilla.   He does

not claim counsel rendered false or affirmatively misleading

advice about the removal consequences of pleading guilty; he

merely claims counsel failed to give him any advice about such

consequences.     Therefore, Padilla is unavailing to defendant.

        Defendant also argues counsel was ineffective for failing

to negotiate a plea agreement in which defendant could have pled

to an offense that did not have removal consequences.     We note

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defendant fails to provide any evidence the State would have

consented to and the trial court would have approved of an

agreement different from the one the State offered.

    Accordingly, the PCR judge correctly determined defendant's

application for post-conviction relief had to be denied, because

defendant did not establish a prima facie case of ineffective

assistance of counsel.

    Affirmed.




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