STATE OF NEW JERSEY v. JOHANNS CUADROS

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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2954-18

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOHANNS CUADROS,

     Defendant-Appellant.
_______________________

                   Submitted January 21, 2021 – Decided March 1, 2021

                   Before Judges Ostrer and Enright.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment Nos. 99-01-0382
                   and 99-01-0383.

                   Adam W. Toraya, attorney for appellant.

                   Theodore N. Stephens II, Acting Essex County
                   Prosecutor, attorney for respondent (Matthew E.
                   Hanley, Special Deputy Attorney General/Acting
                   Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Johanns Cuadros appeals from a January 29, 2019 denial of his

post-conviction relief (PCR) petition following an evidentiary hearing. We

affirm.

      Defendant was charged under separate indictments with two counts of

second-degree sexual assault,  N.J.S.A. 2C:14-2(5). His victims were fourteen

years old. Defendant pled guilty to amended charges of fourth-degree criminal

sexual contact,  N.J.S.A. 2C:14-3(b), regarding each victim. In exchange for his

pleas, the State recommended that he receive a county jail sentence not to exceed

364 days, as a condition of probation, that he undergo counseling and not have

contact with his victims. On May 26, 1999, he was sentenced in accordance

with the plea agreement to five years of probation, a 364-day jail term, no

contact with his victims and counseling, along with the mandatory assessments.

Defendant filed no direct appeal from his conviction or sentence.

      On November 28, 2016, while facing deportation, defendant collaterally

challenged his seventeen-year-old judgment of conviction by filing a pro se

petition for PCR. Defendant alleged he was denied effective assistance of

counsel, "as he was not advised of potential immigration consequences" r elated

to his guilty pleas. PCR counsel amended defendant's petition in July 2018,

alleging trial counsel was ineffective because he misadvised defendant about the


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consequences of his guilty pleas. Specifically, defendant asserted his trial

attorney told him not to worry about being deported since he was a lawful

permanent resident and would be serving county jail, versus prison, time under

his recommended sentence.

        In his amended petition, defendant also argued his guilty pleas were

defective under Rule 3:9-2, because he did not realize his guilty pleas would

lead to deportation, and he claimed his pleas resulted from the "the coercive

conduct of trial counsel." Further, defendant contended he was entitled to

withdraw his pleas under the Slater test1 and that the time bar on his petition

should be relaxed, due to excusable neglect and because enforcement of the time

bar would result in a fundamental injustice.

        In November 2018, the PCR judge conducted an evidentiary hearing to

address defendant's claims. Trial counsel testified at the evidentiary hearing.

He stated his testimony was based on his recollection, as he no longer possessed

defendant's file, except for a copy of defendant's plea and sentencing transcripts.

Trial counsel affirmed he had practiced law since 1976, and had "an active

criminal practice," but also handled immigration and real estate cases when he

represented defendant. Trial counsel testified he was aware of defendant's


1
    State v. Slater,  198 N.J. 145 (2009).
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citizenship status at the time of the plea, and that it was his practice to "go over

every item on the plea form" with a client. Therefore, he would have reviewed

the citizenship question at Question 17. Further, trial counsel stated he would

have circled "N/A" on Question 17, if immigration consequences were not

relevant to the defendant. In this instance, trial counsel confirmed Question 17

was answered by circling "Yes" and testified what when a client's response to

this question was answered in the affirmative, it was his practice to "go over the

possibilities or the potential of any dire consequences" resulting from the plea.

Trial counsel also confirmed that at sentencing, he told the judge, "there is an

immigration situation that may come up in the future. My client is a permanent

resident. He's not a citizen of the United States. These charges may cause a

problem with his status here, may eventually cause a deportation problem."

Further, trial counsel stated he knew when he was negotiating defendant's plea

agreement that defendant faced exposure for consecutive ten-year prison terms

and mandatory compliance with the requirements of Megan's Law,  N.J.S.A.

2C:7-1 to -23, on his second-degree charges.

      Defendant also testified at the evidentiary hearing. On direct examination,

he claimed he relied on his trial attorney's assurances he would not suffer

immigration consequences as a result of his pleas. Additionally, he stated that


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when he was "picked up by Immigration and Customs [Enforcement]" (ICE), he

was unaware he "could be picked up by them." Defendant also testified he did

not understand when he pled guilty in 1999 that there was a possibility of

deportation because he was "just told that it wouldn't be a problem." Further,

on redirect, defendant testified that if he had known he would be deported, or

there was a possibility of deportation, he would not have entered his plea. He

explained, "[i]f there was a certainty that I was going to be deported, I would

have rather taken my chances and not build a life here, do everything that I did

here . . . . I might as well have started somewhere else when I was younger."

      Defendant attested he was currently married, had two children, was

gainfully employed and paid taxes. When defendant was asked by PCR counsel

how he came to be picked up by ICE, the assistant prosecutor objected. The

PCR judge ruled, "it doesn't make any difference why or how he was picked up"

by ICE. However, the judge also acknowledged defendant had "no subsequent

record after this conviction." Following a brief discussion between counsel and

the judge, PCR counsel concluded his direct examination by stating his client

had "lived a law-abiding life" and he had wanted the court to "hear it from"

defendant.




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      On cross-examination, defendant conceded he was well aware of his

charges under the original indictments. Further, he admitted he "had an intimate

situation with [his fourteen-year-old victim, S.S.]"2 which "involved her

genitals" and him. When defendant was asked about his second victim, C.J., the

following exchange occurred:

            Assistant Prosecutor: Alright, and isn't it a fact that you
            vaginally penetrated C.J.?

            Defendant: Yes.

                   ....

            Assistant Prosecutor: And if that witness, C.J. took the
            stand at . . . trial and said that you vaginally penetrated
            her, she'd be telling the truth, right?

            Defendant: Yes.

            Assistant Prosecutor: So - - and as to the other victim,
            S.S., if she got on the stand and she said that you
            vaginally penetrated her . . ., that would be the truth,
            wouldn't it?

            Defendant: It depends on what you mean by . . .
            penetration - - again going back 20 years if, 19-years-
            old, not understanding the legal system and having
            someone tell me that you have to go before the judge
            and say that you did this for your gratification—you
            know I just followed procedure. So, if you're asking
            me if that would be true, no, but I had to take a plea.

2
  We reference the victims in this case by their initials to protect their privacy.
R. 1:38-3(c)(9) and (12).
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             And in order to take a plea, I had to make certain
             statements.
             Assistant Prosecutor: But you just told this judge that
             you vaginally penetrated C.J.

             Defendant: I - - I did, because I'm not going to tell you
             something that's not true.

             Assistant Prosecutor: So you got a good deal. You
             were facing minimally ten years in State Prison for
             vaginally penetrating C.J. and you got 364 days as a
             condition of probation, correct?

             Defendant: That's - - that was the term that I got,
             correct.

      Additionally, on cross-examination, defendant acknowledged that trial

counsel bargained down the State's original plea offer from a ten-year prison

term, to a five-year term, before he obtained the State's offer for a 364-day jail

term. Asked if that was a "pretty good" deal, defendant answered, "[y]es, it

was." Defendant also conceded that when he answered Question 17 on his plea

form, he could "speak and read English perfectly." The assistant prosecutor

inquired if the "real reason why" defendant petitioned the court was "because

you do not want to be deported, correct?" Defendant answered, "[o]f course I

don't; that's right."

      The PCR judge posed additional questions to defendant. The judge asked

whether trial counsel discussed defendant's potential immigration consequences


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with him. Defendant answered in the negative, adding, "[n]o consequence at all

was discussed." The judge then referred to PCR counsel's memorandum wherein

he represented defendant's trial counsel inaccurately advised him he would not

be deported.    Defendant then shifted his testimony to state trial counsel

misinforming him about the potential consequences of his plea. Finally, the

PCR judge asked if defendant recalled trial counsel saying at sentencing that

defendant's charges "may cause a problem with his status here" and "may

eventually cause a deportation problem."           Defendant acknowledged he

remembered trial counsel making these statements.

      Following defendant's testimony, the PCR judge reserved his decision.

On January 29, 2019, the judge denied defendant's PCR petition, finding it was

time barred under Rule 3:22-12. The judge determined defendant failed to

establish the seventeen-year delay in filing his petition was due to "excusable

neglect" and there was "a reasonable probability that, if his factual assertions

[were] true, enforcement of the time bar would result in a fundamental

injustice." Additionally, referencing State v. Mitchell,  126 N.J. 565, 579-80

(1992), the judge noted that the time bar should not be relaxed absent

"'exceptional circumstances' such that strict adherence to the five-year time bar

of [Rule] 3:22-12 would result in an injustice."


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      The judge also found defendant's defective plea and Slater arguments

could have been raised on direct appeal, so they were procedurally barred under

Rule 3:22-4. Lastly, the judge concluded that even if defendant's petition was

neither time barred nor procedurally barred, defendant failed to demonstrate his

trial counsel was ineffective, pursuant to the two-pronged test set forth in

Strickland v. Washington,  466 U.S. 668 (1984) (holding that in order to establish

ineffective assistance of counsel, a defendant must demonstrate substandard

representation by counsel and prejudice to the outcome as a result).

      On appeal, defendant raises the following arguments:

            POINT ONE

            THE COURT ERRED IN DENYING DEFENDANT
            THE RIGHT TO TESTIFY AT HIS EVIDENTIARY
            HEARING ABOUT THE REASON FOR HIS
            DELAYED FILING OF HIS PCR AND THEN
            DENIED HIS PETITION BY SPECIFICALLY
            FINDING THAT HE HAD NOT GIVEN ANY
            EXPLANATION ON WHICH THE COURT COULD
            FIND A BASIS TO RELAX THE PROCEDURAL
            TIME BAR UNDER [RULE] 3:22-12.

            POINT TWO

            THE PCR COURT'S ORDER SHOULD BE
            REVERSED AND THE MATTER REMANDED TO
            THE TRIAL COURT TO ALLOW THE DEFENDANT
            TO VACATE HIS GUILTY PLEA BECAUSE THE
            PCR COURT ERRED IN DETERMINING THAT
            DEFENDANT DID NOT MEET HIS BURDEN

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                                       9
            UNDER THE STRICKLAND STANDARD                         OF
            INEFFECTIVE ASSISTANCE OF COUNSEL.

      We find these arguments unconvincing, in light of the record and

applicable legal standards.

      Our review following an evidentiary hearing for PCR "is necessarily

deferential to a PCR court's factual findings based on its review of live witness

testimony." State v. Nash,  212 N.J. 518, 540 (2013). Where an evidentiary

hearing has been held, we should not disturb "the PCR court's findings that are

supported by sufficient credible evidence in the record." State v. Pierre,  223 N.J. 560, 576 (2015) (citation omitted). We review any legal conclusions of the

court de novo. Nash,  212 N.J. at 540-41.

      Regarding Point I, we note that Rule 3:22-12(a)(1)(A) generally requires

that absent a defendant's "excusable neglect" and the "reasonable probability"

that a "fundamental injustice" would result if "defendant's factual assertions

were found to be true," a first PCR petition must be filed no more than five years

"after the date of entry . . . of the judgment of conviction that is being

challenged."   When a PCR petition is filed more than five years after the

Judgment of Conviction,

            a PCR judge has an independent, non-delegable duty to
            question the timeliness of the petition, and to require
            that defendant submit competent evidence to satisfy the

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              standards for relaxing the rule's time restrictions
              pursuant to Rule 3:22-12. Absent sufficient competent
              evidence to satisfy this standard, the court does not
              have the authority to review the merits of the claim.

              [State v. Brown,  455 N.J. Super. 460, 470 (App. Div.
              2018).]

        A claim of excusable neglect requires "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 avoid application of

the time bar in Rule 3:22-12(a)(1), the defendant must show the failure to file a

petition within the time required was due to "compelling, extenuating" or

"exceptional circumstances." State v. Brewster,  429 N.J. Super. 387, 400 (App.

Div. 2013) (quoting State v. Milne,  178 N.J. 486, 492 (2004)). In determining

whether the defendant has made the required showing for relaxation of the rule,

the court must consider: (1) "the extent and cause of the delay"; (2) "the

prejudice to the State"; and (3) "the importance of the petitioner's claim in

determining whether there has been an 'injustice' sufficient to relax the time

limits." State v. Afanador,  151 N.J. 41, 52 (1997) (quoting Mitchell,  126 N.J.

at 580).

        Seeking relaxation of the five-year time bar, defendant contends the PCR

judge


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            erred by continuously cutting off PCR counsel's line of
            questioning and preventing testimony that would have
            specifically addressed when and how he first learned he
            was facing deportation consequences. This is directly
            relevant to the issue of excusable neglect. The fact that
            he never encountered any law enforcement for fifteen
            years supports his claim that he had no idea he was
            facing immigration consequences.

We are not persuaded.

      The transcript from the evidentiary hearing reveals that as soon as PCR

counsel asked defendant how he came to be detained by ICE, the State objected.

PCR counsel made clear he wanted to illustrate to the court that defendant had

no contact with law enforcement after his 1999 conviction, until he was detained

by ICE.    The PCR judge promptly accepted the fact defendant had "no

subsequent record after this conviction" so he had no contact with law

enforcement from the time he was convicted until he was detained by ICE. But,

as the judge correctly found, defendant's lack of contact with law enforcement

following his conviction did not establish excusable neglect for the delayed

filing of his PCR petition.

      As the plea form and sentencing transcript reflect, defendant was notified

of the immigration consequences of his plea long before removal proceedings

were commenced. Not only did defendant's answer to Question 17 on the plea

form acknowledge his status, but at sentencing, trial counsel specifically noted

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his concern that defendant could be deported once convicted.                  More

importantly, as the PCR judge observed, even if trial counsel did not provide

defendant with correct advice about the immigration consequences of his plea,

defendant's assertions of ineffective assistance of counsel claims were

insufficient to overcome the Rule 3:22-12 time bar. Referring to Brewster,  429 N.J. Super. at 400, the PCR judge aptly noted inaccurate advice at the time of

the plea does not establish excusable neglect, for 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." Also, "[a] defendant cannot decide to remain intentionally ignorant of

the legal consequences of his decision as a means of establishing excusable

neglect." Brown,  455 N.J. Super. at 471.

      We also are satisfied the PCR judge correctly found defendant failed to

establish that enforcing the five-year time bar would result in a fundamental

injustice. As our Supreme Court has stated, "[o]ur courts will find fundamental

injustice when the judicial system has denied a 'defendant with fair proceedings

leading to a just outcome' or when 'inadvertent errors mistakenly impacted a

determination of guilt or otherwise wrought a miscarriage of justice.'" Nash,

 212 N.J. at 546 (quoting Mitchell,  126 N.J. at 587). However, here, the PCR


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judge concluded defendant's purported lack of awareness of his immigration

consequences did not implicate his guilt of the charges. See Brewster,  429 N.J.

Super. at 401 (no "fundamental injustice" where defendant's "knowledge of the

risk of deportation did not affect the truth-finding function of the court").

      Regarding Point II, we also are convinced the PCR court properly rejected

defendant's ineffective assistance of counsel and Slater arguments. However,

we part ways with the PCR judge's conclusion that defendant's Slater argument

was procedurally barred, because a motion to withdraw a plea may be made at

any time. State v. O'Donnell,  435 N.J. Super. 351, 368 (App. Div. 2014).

However, we affirm the court's denial of the plea withdrawal for different

reasons. See State v. Heisler,  422 N.J. Super. 399, 416 (App. Div. 2011)

(recognizing that an appellate court is "free to affirm the trial court's decision

on grounds different from those relied upon by the trial court").

      As a threshold matter, we observe that different rights are implicated by a

petition for PCR based on ineffective assistance of counsel and an application

to withdraw a guilty plea. O'Donnell,  435 N.J. Super. at 368. "To establish a

prima facie claim of ineffective assistance of counsel, a defendant must

demonstrate [a] reasonable likelihood of succe[ss] under the test set forth in

Strickland[],  466 U.S. . . . at 694 . . ., which we adopted in State v. Fritz, 105


                                                                                A-2954-18
                                        14 N.J. 42, 58 (1987)." State v. Preciose,  129 N.J. 451, 463 (1992). Under the first

Strickland prong, a "defendant must show that [defense] counsel's performance

was deficient."   Strickland,  466 U.S.  at 687.      Under the second prong, a

defendant must demonstrate "a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different."

Id. at 694. In demonstrating that counsel's performance was deficient under the

first prong of Strickland, a defendant must overcome "a strong presumption that

counsel's conduct falls within the wide range of reasonable professional

assistance." Fritz,  105 N.J. at 52 (quoting Strickland,  466 U.S. at 689). Further,

because prejudice is not presumed, ibid., a defendant must demonstrate "how

specific errors of counsel undermined the reliability" of the proceeding, United

States v. Cronic,  466 U.S. 648, 659 n.26 (1984).

      To justify vacating a guilty plea premised on ineffective assistance of

counsel, a defendant must satisfy a modified Strickland standard.

            When a guilty plea is part of the equation, . . . a
            defendant must show that (i) counsel's assistance was
            not "within the range of competence demanded of
            attorneys in criminal cases" and (ii) "that 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."




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            [State v. Nunez-Valdez,  200 N.J. 129, 139 (2009)
            (quoting State v. DiFrisco,  137 N.J. 434, 457 (1994)
            (alteration in original)).]

Moreover, "a petitioner must convince the court that a decision to reject the plea

bargain would have been rational under the circumstances."             Padilla v.

Kentucky,  559 U.S. 356, 372 (2010).

      On the other hand, defendant's motion to withdraw his plea must be

separately considered under the standard enunciated in Slater. The Court held:

            trial judges are to consider and balance four factors in
            evaluating motions to withdraw a guilty plea: (1)
            whether the defendant has asserted a colorable claim of
            innocence; (2) the nature and strength of defendant's
            reasons for withdrawal; (3) the existence of a plea
            bargain; and (4) whether withdrawal would result in
            unfair prejudice to the State or unfair advantage to the
            accused.

            [Slater,  198 N.J. at 157-58 (citations omitted).]

      The Slater Court further held:

            The same factors are to be used for motions filed either
            before or after sentencing, but the timing of the motion
            will trigger different burdens of proof for the movant:
            pre-sentence motions to withdraw a plea are governed
            by the "interest of justice" standard in Rule 3:9-3(e),
            while post-sentence motions are subject to the
            "manifest injustice" standard in Rule 3:21-1.

            [Id. at 158.]



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      Guided by these distinct principles, we first address defendant's claim of

error regarding the PCR judge's analysis of his ineffective assistance of counsel

claims. As we have noted, the PCR judge considered the merits of defendant's

ineffective assistance of counsel claims, notwithstanding the fact defendant's

application was time barred. Finding defendant's case was "governed by pre-

Padilla law," the judge noted defendant was required under the first Strickland

prong to demonstrate that trial counsel affirmatively misled him about the

immigration consequences of his guilty pleas. The judge determined defendant's

proofs fell short in this regard, pointing to defendant's plea form answer at

Question 17, as well as his testimony at the plea hearing when he confirmed he

had no questions for his attorney, he was satisfied with counsel's services, and

was not promised anything that was not placed on the record. Further, the judge

credited trial counsel's testimony that he discussed defendant's immigration

consequences with him and also noted those consequences on the record at

sentencing. Further, the judge found defendant failed to satisfy the second

Strickland prong. The judge concluded defendant's claim that he would have

rejected the State's offer had he known of his immigration consequences of his

plea was a "bald assertion." He added that rejecting the State's offer would have

been "absolutely irrational under the circumstances," in light of the seriousness


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                                      17
of the charges pending against him, his exposure for significant prison time, and

"certain deportation upon completion of any custodial sentence." We perceive

no basis to disturb the judge's decision in this regard, as it was amply supported

by the credible evidence in the record.

        Finally, in considering defendant's motion to withdraw his plea, although

the PCR judge did not extensively analyze the Slater factors in his opinion, he

explicitly found defendant did not assert a colorable claim of innocence. This

finding is supported by defendant's own admissions during the evidentiary

hearing, in terms of his criminal acts against his victims. Moreover, the nature

and strength of defendant's reasons for withdrawing his pleas were not

convincing. Indeed, the judge found defendant's allegations "not credible" and

his testimony "unsupported," given what was set forth in the face of

"documentary evidence – e.g. the plea form; plea transcript; and sentencing

transcript." Further, defendant candidly admitted on cross-examination that the

"real reason why" he petitioned the court was "because [he did] do not want to

be deported." Also, the judge noted defendant's knowledge of his deportation

risk did not affect the "truth-finding function" of the court when it accepted his

plea.




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      Regarding the third Slater factor, there is no question but that a plea

bargain existed in this matter. As to the final Slater factor, the PCR judge noted

that "[a]s time passes, justice becomes more elusive and the necessity for

preserving finality and certainty of judgments increases." The judge also found

that "allowing the Petitioner to proceed, seventeen years post-conviction, would

greatly prejudice the State." Additionally, without holding defendant to the

more rigorous "manifest injustice" standard contemplated for post-sentencing

Slater motions, the judge concluded defendant failed to demonstrate an

"injustice" would result "if relief from [a] procedural bar was not obtained."

Under these circumstances and given the credible testimony trial counsel

presented at the evidentiary, we perceive no basis to second-guess the judge's

decision to deny defendant's Slater application.

      To the extent we have not specifically addressed any of defendant's

remaining arguments, we find them to be without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




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