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State v. Brown

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 22, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RICARDO BROWN, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Essex County, No. 99-09-2290.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 9, 2008

Before Judges Wefing and Parker.

Defendant appeals from a trial court order denying his petition for post-conviction relief ("PCR"). After reviewing the record in light of the contentions advanced on appeal, we affirm.

In September 1999, defendant was indicted for conspiracy to commit robbery, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-1, a crime of the second degree; robbery while armed, N.J.S.A. 2C:15-1, a crime of the first degree; unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), a crime of the third degree; and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), a crime of the second degree. On November 30, 2000, defendant entered a negotiated plea of guilty to pointing a firearm at another, N.J.S.A. 2C:12-1(b)(4), a crime of the fourth degree. On January 26, 2001, the trial court sentenced defendant to a term of eighteen months incarceration. Because defendant had already served 567 days in custody, he was released shortly after sentencing.

In March 2007, more than six years after defendant's judgment of conviction was entered, he filed a PCR petition, contending that the attorney who had represented him in connection with this matter had been ineffective. He contended that his failure to file his petition within five years, as required by Rule 3:22-12, was due to his several incarcerations in the interim. He noted that he had been paroled from his latest incarceration in February 2006 and was released into the custody of the Immigration and Customs Enforcement Agency of the Department of Homeland Security.

Counsel was assigned to represent defendant in connection with this petition. Counsel argued that defendant's trial counsel was ineffective for not discussing with defendant the deportation consequences of a guilty plea. He also argued that defendant's petition was not procedurally barred.

After hearing argument, the trial court denied the petition without having a plenary hearing. The trial court gave an oral opinion in which it concluded that defendant's petition was procedurally barred for being untimely. It also discussed the substantive merits of defendant's petition and found it wanting. On appeal, defendant raises the following arguments for our consideration.

POINT I:

THE COURT ABUSED ITS DISCRETION IN FAILING TO GRANT DEFENDANT'S APPLICATION FOR POST-CONVICTION RELIEF.

POINT II:

THE COURT ERRED IN DENYING DEFENDANT'S APPLICATION FOR POST-CONVICTION RELIEF BECAUSE TRIAL COUNSEL FAILED TO PROVIDE EFFECTIVE ASSISTANCE TO DEFENDANT.

POINT III:

THE COURT ERRED IN DENYING DEFENDANT'S APPLICATION FOR POST-CONVICTION RELIEF BECAUSE PETITIONER'S FAILURE TO FILE WITHIN FIVE YEARS OF HIS CONVICTION WAS EXCUSABLE AND BECAUSE THE INTERESTS OF JUSTICE WARRANT RELAXATION OF THE TIME BAR.

We do not find it necessary to address the timeliness question because we are satisfied, as was the trial court, that defendant's petition lacks merit. Defendant relies upon State v. Garcia, 320 N.J. Super. 332, 340 (App. Div. 1999), in which we concluded that a defendant whose attorney had misinformed him about the deportation consequences of a guilty plea had established a prima facie case of ineffective assistance of counsel. Defendant stresses to us, as he did to the trial court, that the completed plea form contained the answer "N/A" to the question whether defendant understood that entering a plea of guilty could subject a non-citizen to deportation.

There is nothing in this record, however, which would support an inference that defendant was misinformed by his attorney with respect to his immigration status. As the PCR court noted, the pre-sentence report that was prepared for the 2001 sentencing stated that defendant was born in Newark. The sentencing court asked at the outset of the sentencing proceedings whether there were any corrections to be made to the pre-sentence report and defendant was silent. The sentencing court, moreover, in stating its reasons for the sentence it selected, specifically referred to the fact that defendant had been born in Newark and defendant made no effort to correct the court. The PCR court noted that defendant had been arrested five times and on each occasion reported that he had been born in Newark.

We do not find it necessary to set forth at length the principles governing claims of ineffective assistance of counsel. They are set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984); United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed. 2d 657 (1984); and State v. Fritz, 105 N.J. 42 (1987). The trial court correctly applied those principles to this matter.

The order under review is affirmed substantially for the reasons stated by Judge John C. Kennedy in his oral opinion of July 27, 2007.

Affirmed.

20090122

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