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State v. Bennett

February 27, 2009

STATE OF NEW JERSEY, PLAINTIFF-DEFENDANT,
v.
ROHAN BENNETT, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 92-01-1388.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 2, 2009

Before Judges Carchman and Sabatino.

Defendant Rohan Bennett appeals an order of the Law Division denying his petition for post-conviction relief ("PCR") arising out of his guilty plea in 1994 to a drug offense. Defendant claimed that his trial attorney was ineffective in allegedly failing to advise him of the potential deportation consequences of his guilty plea. The Law Division ruled that defendant's PCR application, which he did not file until twelve years after his 1994 plea, was inexcusably late, and therefore dismissed it under Rule 3:22-12. We affirm.

The relevant background may be briefly stated. On May 13, 1992, defendant was arrested by the Hackensack Police Department for the illegal distribution and possession of cocaine, a controlled dangerous substance ("CDS"). On September 30, 1992, a Bergen County Grand Jury indicted defendant, charging him with third-degree distribution of CDS, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3), and third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1).

Pursuant to a plea agreement, defendant pled guilty on February 28, 1994, to the CDS distribution count in exchange for the State waiving a potential extended term on that charge and dismissing the possession count. He signed a written plea form, which had been prepared with the participation of his attorney. Question #17 of the plea form asked, in standard language, "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's response was circled "N/A", signifying not applicable. The court accepted defendant's plea, without any specific discussion on the record about his citizenship or Question #17.

Thereafter, on June 3, 1994, the court sentenced defendant to five years of imprisonment with two and a half years of parole ineligibility. The sentence imposed was consistent with the plea agreement. Defendant served that sentence.

On March 1, 2006, the United States Department of Homeland Security, Immigration and Customs Enforcement Office began an investigation to determine whether defendant, who apparently was born abroad*fn1 and is not a United States citizen, should be deported.*fn2 After learning of the federal investigation, defendant filed a PCR petition in the Law Division on September 13, 2006.

Defendant claimed in his PCR petition that his criminal attorney in 1994 was ineffective by allegedly failing to advise him that his guilty plea could lead to his deportation. He seeks to have that case now reopened and to vacate his plea.

After hearing oral argument, Judge Lois Lipton denied defendant's PCR petition, finding it untimely. This appeal ensued.

We have previously recognized that a criminal defense attorney "during the plea process can provide inadequate assistance by misinforming his or her client" about the consequences of the plea. State v. Garcia, 320 N.J. Super. 332, 339 (App. Div. 1999). That principle does not, however, eliminate the obligation of a defendant to present such claims of ineffective assistance to the court in a timely manner, particularly after receiving information that would be sufficient to alert a reasonable person that he or she may have been harmed by the prior representation.

Rule 3:22-12 requires that, apart from claims to correct an illegal sentence, a PCR application must be filed within five years. The only exception to that five-year deadline is where the defendant demonstrates that his or her delay in filing the PCR petition resulted from "excusable neglect":

General Time Limitations. A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that ...


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