STATE OF NEW JERSEY v. KEIFFER BRYAN
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5155-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEIFFER BRYAN,
Defendant-Appellant.
___________________________________
Submitted December 12, 2017 – Decided March 20, 2018
Before Judges Yannotti and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
02-12-1596.
Joseph E. Krakora, Public Defender, attorney
for appellant (David J. Reich, Designated
Counsel, on the briefs).
Camelia M. Valdes, Passaic County
Prosecutor, attorney for respondent
(Christopher W. Hsieh, Chief Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Keiffer Bryan appeals the trial court's order
denying his petition for post-conviction relief (PCR). We
affirm.
On January 17, 2002, defendant allegedly fired an assault
firearm, failed to stop his vehicle when directed by police, and
was arrested with the assault firearm in his vehicle. A handgun
and marijuana were allegedly found in the basement of his
mother's house. Defendant was charged with second-degree
eluding; second-degree possession of a handgun for an unlawful
purpose; second-degree possession of an assault firearm for an
unlawful purpose; third-degree unlawful possession of a handgun;
third-degree possession of an assault weapon; fourth-degree
possession of marijuana in a quantity in excess of fifty grams;
second-degree possession of five or more pounds of marijuana
with intent to distribute; and third-degree possession of
marijuana with intent to distribute within one thousand feet of
a school.
During trial in 2004, a jury convicted defendant of second-
degree possession of an assault firearm for an unlawful purpose,
N.J.S.A. 2C:39-4(a), and third-degree unlawful possession of an
2 A-5155-15T2
assault weapon,
N.J.S.A. 2C:39-5(f).1 However, the court vacated
the conviction because defendant's attorney did not advise
defendant before trial that the charge of possession of an
assault weapon for an unlawful purpose subjected defendant to a
mandatory ten-year sentence, which defendant said might have
affected his decision not to plead guilty. See
N.J.S.A. 2C:43-
6(g).
On January 18, 2006, at a hearing prior to retrial,
defendant's trial counsel told the trial court that the
prosecutor had offered a plea bargain offering a time-served
sentence in return for a plea to the fourth-degree marijuana
possession offense. The court noted the plea offer was "pretty
generous." The court also noted if defendant did not take the
plea deal, defendant would receive the ten-year sentence for his
assault weapon charge if a new jury ruled in a similar manner.
Trial counsel said he told defendant that he had never
known anyone to be hurt by a fourth-degree marijuana possession
conviction, which was expungable and could be removed from his
record. The court informed defendant there would be no
probation. Trial counsel added: "Time served and you're out of
1
The jury deadlocked on the eluding and drug charges, and the
handgun charges were dismissed or led to acquittal.
3 A-5155-15T2
here. You can go back to Florida, and you're gone." Defendant
replied: "I'll take it then."
Prior to the plea, defendant signed a written plea form.
Question 17 asked whether defendant understood 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."
Defendant told the court his answer was truthful, and said no
other promises had been made to him by "the prosecutor, your
defense attorney, or anyone else as part of this plea of
guilty."
During the plea colloquy, defendant advised the trial court
he was not a United States citizen but a resident from Jamaica.
The following colloquy ensued:
THE COURT: Okay. I don't believe that this
is going to affect your resident status at
all, but . . . I have nothing to do with
that. That would be the federal government.
For straight possession, it's highly
unlikely that they would do anything.
[TRIAL COUNSEL]: And I think it's important
too, Judge, that it's a fourth degree. My
experience – I'm not an immigration lawyer,
but with my clients I've had in the criminal
system, it seems that if it's a fourth
degree, that it's a –
THE COURT: Yeah, on a straight possession I
don't think it's a problem, but again, I
can't guarantee that. That's up to the
federal government, do you understand that?
4 A-5155-15T2
DEFENDANT: Yes, Your Honor.
[THE PROSECUTOR]: And there is a chance you
may be deported. . . . We have no control
over that.
THE COURT: I have no control over what
immigration does with this, do you
understand that?
DEFENDANT: Yes, Your Honor.
The trial court also advised defendant that if he left the
country, that could create a problem for him. The court found
defendant was pleading guilty knowingly and voluntarily and
understood the consequences of his plea.
On January 18, 2006, defendant pled guilty to fourth-degree
possession of marijuana in violation of
N.J.S.A 2C:35-10(a)(3).
Under the plea agreement, all other charges were dropped. The
court immediately sentenced him to the negotiated time-served
sentence (three hundred and twenty-one days with immediate
release without probation).
More than six years later, on July 3, 2012, defendant filed
a PCR petition. His certification alleged his trial counsel
"told me that if after five years I do not travel outside the
country or pick up new charges, I could have this conviction
5 A-5155-15T2
expunged and I would not be subject to deportation."2 His
certification also alleged "I would not have accepted the plea
if I knew I faced deportation." After a brief was filed,
defendant withdrew the petition without prejudice to pursue the
matter with an immigration attorney. On November 7, 2014,
defendant refiled his petition.
On November 2, 2015, the judge who had handled defendant's
trial and plea denied his PCR petition. The court ruled the
claim was time-barred and defendant failed to allege facts
showing the delay was due to excusable neglect. The court also
ruled defendant was advised of the possible immigration
consequences of the plea deal.
Defendant raises the following issues on appeal:
POINT I. - THE TRIAL COURT ERRED IN DENYING
BRYAN'S PETITION FOR POST-CONVICTION RELIEF
WITHOUT AN EVIDENTIARY HEARING CONCERNING
HIS CLAIM THAT HE WAS DEPRIVED OF HIS
CONSTITUTIONAL RIGHT TO THE EFFECTIVE
ASSISTANCE OF COUNSEL BECAUSE HIS ATTORNEY
MISINFORMED HIM ABOUT THE DEPORTATION
CONSEQUENCES OF HIS PLEA.
POINT II. - BRYAN IS ENTITLED TO RELIEF FROM
HIS PLEA BECAUSE IT WAS NOT GIVEN
VOLUNTARILY WITH AN UNDERSTANDING OF ITS
CONSEQUENCES.
2
Defendant had made similar allegations in an unsworn letter,
which added that trial counsel "also informed me that he has had
clients with the same charges that I received that has [sic] not
had . . . any problem with immigration."
6 A-5155-15T2
A. An Evidentiary Hearing Is
Generally Required Where
Ineffective Assistance of Counsel
is Asserted and the Petitioner Has
Established a Prima Facie Claim.
B. Bryan Has Established a Prima
Facie Claim of Ineffective
Assistance of Counsel.
POINT III. - BRYAN'S NEGLECT IN NOT FILING
HIS PETITION WITHIN FIVE YEARS SHOULD HAVE
BEEN FOUND EXCUSABLE BECAUSE IT WAS CAUSED
BY HIS ATTORNEYS MISADVICE.
I.
A PCR court does not need to grant an evidentiary hearing
unless "a defendant has presented a prima facie [case] in
support of post-conviction relief." State v. Marshall,
148 N.J.
89, 158 (1997). "To establish such a prima facie case, the
defendant must demonstrate a reasonable likelihood that his or
her claim will ultimately succeed on the merits." Ibid. The
court must view the facts "in the light most favorable to
defendant." Ibid.; see R. 3:22-10(b). As the PCR court did not
hold an evidentiary hearing, we "conduct a de novo review."
State v. Harris,
181 N.J. 391, 419 (2004). We must hew to that
standard of review.
II.
The PCR court properly denied defendant's PCR claim because
his petition was untimely. See State v Brewster, 429 N.J Super.
7 A-5155-15T2
387, 398 (App. Div. 2013). At the time of the PCR hearing, Rule
3:22-12(a)(1) provided:
no petition shall be filed pursuant to this
rule more than 5 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 found to be true enforcement
of the time bar would result in a
fundamental injustice.
Unless a defendant shows both excusable neglect and fundamental
injustice, his claim is time-barred; the time limit cannot be
relaxed. R. 3:22-12(c); see 1:3-4(c).
Here, defendant's judgment of conviction was entered on
January 18, 2006. Under Rule 3:22-12(a)(1)'s five-year limit,
defendant had until January 18, 2011 to file his PCR petition.
However, defendant filed his PCR petition on July 3, 2012,
withdrew it, and refiled it on November 7, 2014. Thus,
defendant must show excusable neglect and a fundamental
injustice. R. 3:22-12(a)(1).
A.
A PCR petitioner "must allege specific facts and evidence
supporting his allegations." State v. Porter,
216 N.J. 343, 355
(2013); see R. 3:22-8. Moreover, "[a]ny factual assertion that
provides the predicate for a claim of relief must be made by
8 A-5155-15T2
affidavit or certification[.]" R. 3:22-10(c). "A petition is
time-barred if it does not claim excusable neglect, or allege
the facts relied on to support that claim." State v. Cann,
342 N.J. Super. 93, 101-02 (App. Div. 2001) (citing State v.
Mitchell,
126 N.J. 565, 577 (1992)).
Defendant's certification made no attempt to demonstrate
excusable neglect for failing to file a PCR petition within five
years of his conviction. Defendant merely argued to the PCR
court that it was not until he recently applied to be a
permanent resident that he learned he was subject to
deportation.
On appeal, defendant claims he failed to file a timely PCR
petition because he relied on trial counsel's alleged advice if
he did not leave the country for five years he could have his
conviction expunged and avoid deportation. We have found such
assertions inadequate to show excusable neglect:
Defendant cannot assert excusable neglect
simply because he received inaccurate
deportation advice from his defense counsel.
If excusable neglect for late filing of a
petition is equated with incorrect or
incomplete advice, 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.
9 A-5155-15T2
[Brewster,
429 N.J. Super. at 400 (citing
State v. Goodwin,
173 N.J. 583, 595
(2002)).]
Defendant alleges that if he had known he was subject to
deportation, he would have filed for timely relief. But in his
plea form and at the plea colloquy, defendant was alerted to the
risk of deportation. Cf. State v. Maldon,
422 N.J. Super. 475,
478-79, 482 (App. Div. 2011) (finding excusable neglect where
neither the plea form nor the colloquy advised the defendant he
could be civilly committed).
Defendant argues he should not be punished for his trial
counsel's alleged misinformation. However, defendant had five
years free from his trial counsel's influence in which to file a
PCR petition. "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). Therefore, the trial court properly found defendant
failed to show excusable neglect.
B.
Additionally, defendant cannot show a reasonable
probability of fundamental injustice. First, "to succeed on a
claim of fundamental injustice, the petitioner must show that
the error 'played a role in the determination of guilt.'"
10 A-5155-15T2
Brewster,
429 N.J. Super. at 400-01 (quoting State v. Nash,
212 N.J. 518, 547 (2013)). "[U]nless a petitioner alleges and
demonstrates that he can provide clear evidence that an innocent
party has mistakenly pleaded guilty or has received a manifestly
improper sentence, the Rule barring petitions for post-
conviction relief more than five years after sentencing will not
be deemed to create an 'injustice[.]'" State v. Mitchell,
126 N.J. 565, 583 (1992). Here, as in Brewster, "defendant has not
claimed he was innocent of the charge[]. His knowledge of the
risk of deportation did not affect the truth-finding function of
the court when it accepted his plea."
429 N.J. Super. at 401.
Second, defendant cannot show a fundamental injustice
because he has not established a prima facie case that
ineffective assistance of counsel led to his plea deal. To show
ineffective assistance of counsel, a defendant must satisfy the
two-prong test set forth in Strickland v. Washington,
466 U.S. 668 (1984), and adopted by our Supreme Court in State v. Fritz,
105 N.J. 42 (1987).
"First, defendant must show that counsel's performance was
deficient." State v. Taccetta, 200 N.J. 183, 193 (2009).
"Second, defendant must show that the deficient performance
prejudiced the defense." Ibid. If a defendant pled guilty, he
must show "that there is a reasonable probability that, but for
11 A-5155-15T2
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) (quoting Hill v. Lockhart,
474 U.S. 52, 59
(1985)).
In 2010, the United States Supreme Court ruled that
"counsel must inform [his] client whether his plea carries a
risk of deportation." Padilla v. Kentucky,
559 U.S. 356, 374
(2010). However, Padilla is not retroactively applied to
convictions that were final when Padilla was decided. Chaidez
v. United States,
568 U.S. 342, 344 (2013); State v. Gaitan,
209 N.J. 339, 372 (2012). Because Padilla does not retroactively
apply to defendant's final conviction, counsel's alleged
ineffectiveness must be evaluated under the state of the law
before Padilla.
Prior to Padilla, counsel was not required to advise a
defendant of the risk of deportation. See State v. Chung,
210 N.J. Super. 427, 434-35 (App. Div. 1986). Counsel could only be
considered ineffective if counsel "provide[d] false or
misleading [material] information concerning the deportation
consequences of a plea of guilty." State v. Nunez-Valdez,
200 N.J. 129, 138, 141-43 (2009).
Defendant argues his attorney misinformed him about the
deportation consequences of his plea. Defendant's plea colloquy
12 A-5155-15T2
and his unsworn letter show that trial counsel merely related
his own experience: that his clients with fourth-degree
convictions had not had deportation problems. Trial counsel
also cautioned that he was "not an immigration lawyer."
However, defendant's certification alleged trial counsel
advised him he would not be subject to deportation if he had his
conviction expunged. He established a prima facie case the
alleged advice was deficient. Defendant pled guilty to
possession of over fifty grams of marijuana. Federal law makes
deportable any alien who has been convicted of violation of
State law relating to a controlled substance, except for 30
grams or less of marijuana. 8 U.S.C § 1227(a)(2)(B)(i).
Moreover, under 8 U.S.C. § 1101(a)(48) as amended in 1996, "an
expunged state conviction is a conviction for immigration
purposes." Reyes v. Lynch,
834 F.3d 1104, 1107 & n.15 (9th Cir.
2016).
However, defendant cannot show he "would not have pled
guilty and would have insisted on going to trial" if he had
known he may be deported. Nunez-Valdez,
200 N.J. at 139
(citation omitted). In response to Question 17 on the plea
form, he acknowledged he may be deported as a result of the
plea. See Gaitan,
209 N.J. at 374 (finding the defendant, "at a
minimum, was put on notice of the issue of potential immigration
13 A-5155-15T2
consequences through [Question 17 on] the plea form"). Further,
the prosecutor advised defendant he could be deported. Both the
court and the prosecutor made clear that whether defendant was
deported was out of their control. After all of this
information was provided to him, defendant assured the court he
understood the consequences and pled guilty.
Moreover, "[i]n the PCR context, to obtain relief from a
conviction following a plea, 'a petitioner must convince the
court that a decision to reject the plea bargain would have been
rational under the circumstances.'" State v. O'Donnell,
435 N.J. Super. 351, 371 (App. Div. 2014) (quoting Padilla,
559 U.S.
at 372). Defendant failed to do so.
A jury had already found defendant guilty of a second-
degree offense with a mandatory minimum sentence of ten years,
and a third-degree offense. Although those convictions were
vacated because defendant was not aware of the sentencing
consequences, he faced a real prospect he would be convicted and
get at least ten years in prison. Indeed, defendant faced a
retrial on three second-degree charges, two third-degree
charges, and a fourth-degree charge. The plea bargain gave
defendant the opportunity to dismiss all the second- and third-
degree charges including those on which he had already been
convicted, to plead guilty merely to possession of marijuana in
14 A-5155-15T2
the fourth-degree, to be sentenced to time already served, and
to immediate release without probation. Moreover, the fourth-
degree offense was expungable, and defendant's concern was to
avoid "having a criminal record for the rest of his life."
By contrast, defendant expressed no concern about
deportation. Cf. Lee v. United States, __ U.S. __,
137 S. Ct. 1958, 1967-68 (2017) (citing "the unusual circumstances of this
case" where "deportation was the determinative issue in Lee's
decision whether to accept the plea deal"). Therefore,
defendant cannot show it would have been rational to reject the
plea bargain under the circumstances. Cf. Lee, __ U.S. at __,
137 S. Ct. at 1963, 1969 (finding it would have been rational to
reject a plea offer to a year in jail which only avoided "a year
or two more of prison time"); O'Donnell,
435 N.J. Super. at 364,
377 (finding it would have been rational for the defendant to
reject the plea offer of a mandatory thirty years "that could
result in her spending the rest of her life in prison"). Thus,
defendant cannot show prejudice, let alone a fundamental
injustice.
III.
In his PCR brief, defendant argued his plea should be
vacated because "the trial court did not make any inquiry as to
the substance of counsel's advice and as to whether he was told
15 A-5155-15T2
deportation was mandatory." That claim was barred by Rule 3:22-
4(a) and was meritless, as "it is preferable that the trial
court inquire directly of defendant regarding his knowledge of
the deportation consequences of his plea," which the trial court
did. Nunez-Valdez,
200 N.J. at 144.
On appeal, defendant instead argues he was entitled to
withdraw his plea under State v. Slater,
198 N.J. 145 (2009),
claiming the trial court pressured him into accepting the plea
bargain. However, defendant did not file a motion to withdraw
his plea, did not cite Slater to the PCR court, and made no
claim of pressure by the trial court. He cannot fault the PCR
court for not ruling on a claim he never raised.
In any event, defendant's claim is without merit. "[T]he
withdraw of a guilty plea is not an 'absolute right'; it is a
matter within the broad discretion of the trial court." State
v. Simon,
161 N.J. 416, 444 (1999). Thus, an appellate court
will reverse a "trial court's denial of [a] defendant's request
to withdraw his guilty plea . . . only if there was an abuse of
discretion which renders" the trial court's decision "clearly
erroneous." Ibid.
A motion to withdraw a guilty plea after sentencing can be
granted only "to correct a manifest injustice." R. 3:21-1.
"The longer the delay in raising a reason for withdrawal . . .
16 A-5155-15T2
the greater the level of scrutiny" in evaluating the claim.
Slater,
198 N.J. at 160. The court must consider "(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 could result in unfair prejudice to the State or
unfair advantage to the accused." Id. at 157-58 (2009).
First, defendant argues he has a colorable claim of
innocence because he has consistently proclaimed his innocence
of all charges. However, Slater makes clear that a "bare
assertion of innocence is insufficient to justify withdrawal of
a plea. Defendants must present specific, credible facts and,
where possible, point to facts in the record that buttress their
claim." Id. at 158. Defendant also argues his colorable claim
of innocence is supported by the fact his previous trial
resulted in a hung jury on the fourth-degree charge. However,
the jury did find defendant guilty of second- and third-degree
charges. Additionally, in the plea colloquy he admitted facts
that he possessed over fifty grams of marijuana and acknowledged
that defendant committed the crime. Therefore, he does not have
a colorable claim of innocence.
Second, defendant asserts he has a reason for withdrawing
his plea because the trial court pressured him. He claims the
17 A-5155-15T2
court said it agreed with the jury's verdict, but the court
merely noted the jury convicted him of the assault firearm
charges.
Defendant cites the trial court's comment that it was
"very, very difficult" to understand why defendant initially
would not take the plea bargain, but the court was referencing
that defendant was "in a unique position" because he knew a jury
had found him guilty, that he was "going to be in jail for the
next ten years" if another jury agreed, and he had been offered
a "pretty generous plea offer." In any event, the court
immediately added it was "fine" with the court if defendant
rejected the plea offer, because if "you're not guilty, you're
not guilty." The court told defendant: "You do what you want to
do."
Defendant also cites the trial court's statement that, if a
trial witness became unavailable or changed her story, "I'll let
that prior testimony in." Defendant does not dispute the prior
testimony would be admissible in those circumstances. See
N.J.R.E. 803(a)(1), 804(b)(1)(A). Finally, defendant notes the
court's initial statement that it would not allow defendant to
get a private investigator before the second trial, but the
court immediately stated "you can get a private investigator"
18 A-5155-15T2
after trial counsel stated defendant "wants certain things
done."
Third, defendant entered into a highly-favorable plea
bargain that dismissed the most serious charges and promised a
time-served sentence on the remaining charge. See Slater,
198 N.J. at 160, 164 ("defendants have a heavier burden in seeking
to withdraw pleas entered as part of a plea bargain").
Lastly, defendant claims there would be a little prejudice
in this case because the transcript of the trial remains
available to the state in the event of a retrial. However, "the
passage of time has hampered the State's ability to present
important evidence," through live witnesses. Ibid. at 161. The
crimes occurred in 2002, over 16 years ago. Balancing all of
the factors, defendant is not entitled to withdrawal of his
guilty plea.
Affirmed.
19 A-5155-15T2
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