September 30, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FREDDY ARIAS, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 today back in 1996 when he pled."
Notwithstanding the time bar ruling, the judge reviewed the transcript of defendant's plea and concluded:
The interpreter interpreted fine. He asked a few questions as all interpreters do to make sure that they interpreted with precision. But there is nothing in this plea that in any way is contraindicative of a factual basis for the plea.
My findings are that the defendant knowingly entered into the plea. He understood the consequences of the plea.... That the interpreter translated all the proceedings fairly and adequately for the defendant. He was aware of what they were. He was aware of what he was pleading to. He gave a cogent factual basis for that plea.... I find as a matter of fact that defendant is time barred by the rule. That he did not file without good reason due to any excusable neglect this petition within the timely fashion.... In order for this Court to find that defendant is entitled to post-conviction relief I would have to find that the lawyer who represented him was derelict in his responsibilities.... I don't find that in this case the attorney did anything deficient in pursuing his responsibilities as a defense attorney. I also do not find that defendant suffered any prejudice as result of anything the attorney did. The petition is dismissed.
On appeal, defendant raises the following issues for our consideration:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF OR, IN THE ALTERNATIVE, IN FAILING TO AFFORD HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AS A RESULT OF TRIAL COUNSEL'S CONDUCT WHICH ERRONEOUSLY LED THE DEFENDANT TO BELIEVE HE WOULD NOT FACE DEPORTATION AS A RESULT OF HIS GUILTY PLEA.
C. THE DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AS A RESULT OF TRIAL COUNSEL'S FAILURE TO FILE A MOTION TO SUPPRESS.
THE TRIAL COURT ERRED IN DENYING THAT ASPECT OF THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF MAINTAINING THE DEFENDANT SHOULD BE ENTITLED TO WITHDRAW HIS GUILTY PLEA BECAUSE IT LACKED AN ADEQUATE FACTUAL BASIS.
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF PURSUANT TO RULE 3:22-12 SINCE EXCUSABLE NEGLECT EXISTED TO PERMIT AN ADJUDICATION ON ITS MERITS OF THE PETITION FILED BEYOND THE FIVE YEAR FILING DEADLINE.
Having reviewed the entire record, we conclude the trial judge properly denied defendant's PCR petition without holding a plenary hearing. Therefore, we affirm substantially for the reasons stated by Judge Gelade in the decision he placed on the record on August 18, 2006. We add only the following comments It was defendant's burden to establish his right to relief "by a preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459 (1992). We concur with the PCR judge's conclusion that defendant failed to meet his burden with respect to the issues involving Marshall and immigration concerns, for the reasons stated.
The trial judge properly rejected defendant's two remaining contentions as time-barred pursuant to Rule 3:22-12(a).
In the context of post-conviction relief, a court should only relax the bar of Rule 3:22-12 under exceptional circumstances.... Absent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay. As time passes, justice becomes more elusive and the necessity for preserving finality and certainty of judgment increases.
[State v. Afanador, 151 N.J. 41, 52 (1997).]
Defendant provided no "compelling [or] extenuating circumstances" to warrant consideration of his claims regarding trial counsel's failure to file a motion to suppress and the purportedly inadequate factual basis for his guilty plea, more than eight years after he was sentenced. The record is devoid of any evidence that "the delay... was due to defendant's excusable neglect." R. 3:22-12(a).
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