On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 95-10-1409.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 9, 2008
Before Judges Wefing, Parker and LeWinn.
Defendant Freddy Arias appeals from the order of September 11, 2006, denying his petition for post-conviction relief (PCR). We affirm.
On December 4, 1995, defendant entered a plea of guilty to third-degree conspiracy to possess cocaine, in violation of N.J.S.A. 2C:35-10(a)(1) and 2C:5-2. On January 22, 1996, defendant received a six-month probationary sentence pursuant to his plea agreement. Defendant filed no direct appeal from his conviction or sentence.
Defendant filed his PCR petition on March 4, 2004, alleging newly discovered evidence about criminal activity on the part of the police officer who had arrested him in 1995, Detective James Marshall. On April 28, 2006, defendant, through counsel, filed a supplemental PCR memorandum, raising additional allegations that he had received ineffective assistance of trial counsel based on counsel's failure to: (1) file a motion to suppress evidence; and (2) advise defendant as to the immigration consequences of his guilty plea. Defendant also argued that he did not understand the proceedings at his plea hearing because of inadequate assistance from the Spanish interpreter, and that his guilty plea was entered without an adequate factual basis. Judge Melvin Gelade heard oral argument on defendant's PCR petition on August 18, 2006. At the conclusion of argument, the judge denied defendant's petition in its entirety.
The judge rejected defendant's argument regarding Marshall, finding that no evidence of Marshall's criminal activity was known until 1998, almost three years after defendant entered his guilty plea. The judge further noted that defendant did not have a "dispute" or "argument" with Marshall at the time of his arrest or plea; PCR counsel concurred with this observation.
Regarding defendant's claim that trial counsel failed to advise him of the immigration consequences of his plea, the PCR court noted that, on his plea form, defendant had answered "yes" to the question: "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?" Defendant contended that his counsel advised him not to worry about any immigration consequences of his guilty plea.
Defendant incurred no immigration problems until April 2003, when he returned to the United States from a trip to his native Dominican Republic. Immigration officials stopped him and told him that, "due to [his] conviction for this charge[,] they wanted to deport [him]." Defendant attended a deportation hearing with counsel. It appears that defendant was not, in fact, deported.
In rejecting this contention, the trial judge stated:
Even assuming that [trial counsel] said you don't have to worry about it because it is only a six-month probation, you don't have to worry, he was right because for the next... seven and a half, almost eight years, nobody bothered this defendant. He came back to the country from a trip outside the country in 2003 and was contacted by immigration. Well, he was correctly informed that he could be deported and maybe at that time he didn't have to worry about it because he only had a short period of probation and perhaps immigration would take that into account. But regardless of what was said,... he wasn't [misled] that he couldn't be deported. He was told he could be deported. But in all likelihood won't, and... it's been almost 11 years and he hasn't been deported. So I don't find any hint of the attorney having fallen below the standards which an attorney should be held in a case such as this which would have prejudiced the defendant because if the defendant went to trial and were convicted he probably would have been deported.
The judge found that defendant's remaining arguments were time-barred under Rule 3:22-12, noting that the petition "was filed many years after" the judgment date of January 19, 1996.
The judge found no "excusable neglect" justifying relaxation of the rule, stating, "[D]efendant knew probably everything he knows ...