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State v. Bennett


February 27, 2009


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

Per curiam.


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 the delay beyond said time was due to defendant's excusable neglect.

[R. 3:22-12.]

This codified time limitation "strongly encourages those believing they have grounds for post-conviction relief to bring their claims swiftly, and discourages them from sitting on their rights until it is too late for a court to render justice." State v. Mitchell, 126 N.J. 565, 576 (1992).

As the Supreme Court instructed in Mitchell, the five-year deadline should be relaxed "only under exceptional circumstances." Id. at 580. The court must "consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an 'injustice' sufficient to relax the time limits." Ibid. A court should determine that the procedural rule as applied is unjust "only when a significant liberty interest is at stake and the petitioner has offered something more than a bare allegation that that is so." Ibid.

Defendant's petition, which he filed more than a dozen years after his 1994 guilty plea, plainly is well beyond the five-year limit of Rule 3:22-12. He contends that he satisfies the prerequisites for "excusable neglect" to relax the time bar because he allegedly did not realize until 2006 that the federal government could use his drug conviction as a basis to deport him.

As Judge Lipton recognized, defendant's claim of protracted ignorance about deportation consequences is belied by his entry of another guilty plea in an unrelated matter in 1995, a little more than a year after his plea was entered in the present case. Specifically, the record reflects that on April 4, 1995, defendant pled guilty to fourth-degree unauthorized use of a vehicle, N.J.S.A. 2C:20-10(b), arising out of a different criminal incident. On this subsequent plea form, defendant responded "Yes" to question #17, attesting to his understanding that "if [he is] not a United States citizen or national, [he] may be deported by virtue of [his] plea of guilty."

As Judge Lipton rightly observed from this sequence of events:

So, this [c]court has to conclude that in 1995, this [d]efendant was aware that there was a possibility he could be deported. He pleaded guilty to that offense. And, just common sense dictates that he had to have addressed the question of whether deportation was a possibility for the first offense [in 1994], which was [a third-degree crime] even more serious [than his fourth-degree plea in 1995].

Given this chronology, the judge concluded that defendant had not demonstrated a "significant deprivation" that could excuse his delay of more than a decade in seeking PCR relief arising out of the 1994 plea. We agree.

Defendant should have known by 1995 that he had grounds to challenge the effectiveness of the attorney who handled his 1994 plea when he responded in 1995, this time affirmatively, to the very same question about deportation consequences on the standard plea form. His contentions of prolonged obliviousness ring hollow. Moreover, the prejudice to the State in having to muster trial proofs from a stale narcotics case is also manifest.

In sum, defendant's 2006 petition for PCR was submitted far too late. None of the cases cited in his brief compel a different conclusion. In particular, the main case on time relaxation relied upon by defendant, State v. Afanador, 151 N.J. 41 (1997), is distinguishable. There, the Court allowed the five-year procedural bar to be relaxed because of several idiosyncratic factors. Those factors included, among other things, a supervening opinion of the Court in another case adopting a new rule of law that cast doubt upon the propriety of the jury charge at defendant's own trial, and the Court's determination on defendant's direct appeal to defer his challenge to the jury charge until that other case was decided. Id. at 48-49. No such post-conviction changes in our state law with possible retroactive effects are implicated here.

We affirm the denial of defendant's petition, substantially for the sound reasons expressed in Judge Lipton's oral opinion.*fn3


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