STATE OF NEW JERSEY v. EZEQUIEL YNGA

NOT FOR PUBLICATION WITHOUT THE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-2719-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

EZEQUIEL YNGA,

     Defendant-Appellant.
_____________________________

                   Submitted January 14, 2019 – Decided January 22, 2019

                   Before Judges Sabatino and Haas.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Passaic County, Indictment No. 89-06-0946.

                   Uri J. Roer, attorney for appellant.

                   Camelia M. Valdes, Passaic County Prosecutor,
                   attorney for respondent (Marc A. Festa, Senior
                   Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

          Defendant Ezequiel Ynga appeals the trial court's January 8, 2018 order

denying his petition for post-conviction relief ("PCR") arising out of his 1989
guilty plea and conviction of third-degree possession of heroin within a school

zone, with intent to distribute that controlled substance,  N.J.S.A. 2C:35-7. We

affirm.

      Defendant was charged in 1989 in a three-count indictment charging him

with simple possession of heroin, possession of heroin with the intent to

distribute, and possession of heroin in a school zone with the intent to distribute.

With the assistance of counsel, defendant entered into a plea agreement to the

school zone charge, with the State recommending a five-year sentence with one-

and-one-half years of parole ineligibility.       The other two counts of the

indictment were dismissed. The guilty plea was presented to, and accepted by,

the court on September 12, 1989.

      Defendant was sentenced on December 8, 1989 consistent with the plea

agreement to the negotiated custodial term of five years with a one-and-one-

half-year parole disqualifier.   Before imposing the sentence, the trial court

denied defendant's motion to withdraw his guilty plea. Defendant has completed

his sentence. Defendant did not file a direct appeal of his conviction.

      In October 2015, defendant was arrested by federal Immigration and

Customs Enforcement agents in Florida. He apparently is slated for deportation

because of his 1989 conviction. Defendant initially consulted an attorney in


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Florida to get assistance. Apparently, the attorney in Florida was unable to help

him. According to defendant, the Florida attorney claimed that he was reaching

out to find an attorney in New Jersey. Eventually defendant took it upon himself

to find his present counsel in New Jersey. The New Jersey attorney filed a PCR

petition in September 2017.

      After oral argument before Judge Marybel Mercado-Ramirez, the court

dismissed the petition as being both time-barred and also lacking in merit.

Defendant now appeals that decision. He raises the following points in his brief:

            I. THE PCR COURT ERRED WHEN IT HELD THE
            FILING OF DEFENDANT'S PCR PETITION WAS
            TIME BARRED.

            a. The PCR Court Erred When it Found Defendant Had
            Not Demonstrated Excusable Neglect.

            b. The PCR Court Erred when it Ruled that Even if the
            Delay in Filing was Due to Excusable Neglect the
            Petition Would Still be Time Barred Since Defendant
            Had Not Demonstrated a Fundamental Injustice Would
            Result in Dismissing Defendant's PCR Petition.

            II. THE PCR COURT ERRED WHEN IT FOUND
            THAT EVEN IF THE PCR PETITION WERE NOT
            TIME BARRED THE PETITIONER FAILED TO
            ESTABLISH A PRIMA FACIE CASE OF
            INEFFECTIVE ASSISTANCE OF COUNSEL TO
            WARRANT AN EVIDENTIARY HEARING.




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                                       3
            a. The PCR Court Erred when it Found the Statements
            Made by Trial Counsel to Defendant Prior to Pleading
            Guilty Didn't Constitute Affirmative Misadvice.

            b. The PCR Court Erred when it Held the Defendant
            Had Not Demonstrated a Reasonable Probability that If
            Not For Counsel's Alleged Deficiency The Defendant
            Would Have Gone to Trial.

      Defendant contends that his plea counsel in 1989 provided him with

improper advice by telling him that if went to trial, his illegal immigration status

would become known to deportation authorities. In other words, defendant

contends that his plea counsel did not inform him of the possible immigration

consequences of pleading guilty, and therefore he reasonably believed that a

plea agreement would be a safer option than going to trial and would make him

less likely to be deported. Defendant claims that this is a form of "affirmative

misadvice" entitling him to relief under the standards of State v. Nuñez-Valdéz,

 200 N.J. 129, 142-43 (2009), which preceded the United States Supreme Court's

opinion in Padilla v. Kentucky,  559 U.S. 356 (2010).

      Having considered defendant's arguments, we affirm the trial court's order

denying PCR, substantially for the sound reasons expressed in Judge Mercado-

Ramirez's oral opinion of January 5, 2018. We only add these brief comments.

      We agree with the PCR judge that defendant's petition was time-barred

under Rule 3:22-12. The petition was filed more than twenty-eight years after

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                                         4
defendant's guilty plea and judgment of conviction, well beyond the five-year

time bar mandated under Rule 3:22-12.         Defendant has not demonstrated

excusable neglect to justify relaxing that time limitation.       The delay in

immigration authorities taking action against defendant is no excuse. We noted

in State v. Brewster,  429 N.J. Super. 387, 401 (App. Div. 2013), another PCR

case arising in a deportation context, "defendant had both the opportunity and

the incentive to learn whether he might be deported before the time of his arrest

by federal immigration authorities in [here, October 2015], but he failed to seek

timely consideration of his claims."

      In addition, we discern no merit to the substance of defendant's claims of

ineffective assistance of counsel under the pre-Padilla standards set forth in

Nuñez-Valdéz.     This is plainly not a situation of affirmative misadvice.

Defendant identifies no affirmative advice given by his counsel concerning the

deportation consequences of a guilty plea. Silence is not advice. There being

no prima facie showing of ineffectiveness under the standards of Strickland v.

Washington,  466 U.S. 668, 694 (1984), there was no need here for an evidentiary

hearing. State v. Preciose,  129 N.J. 451, 462 (1992).

      Affirmed.




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