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State v. Smith

April 8, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RICHARD KEITH SMITH, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 00-06-1150.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 24, 2010

Before Judges Sabatino and Newman.

Defendant Richard K. Smith appeals from an order denying his petition for post-conviction relief (PCR). We affirm.

By way of background, defendant pled guilty to third-degree possession of cocaine on February 12, 1991. On April 17, 1991, the court sentenced him to a three-year probationary term. Following a jury trial, defendant was found guilty of third-degree possession of cocaine and acquitted of possession of a controlled dangerous substance with intent to distribute and possession of a controlled dangerous substance with intent to distribute within 1000 feet of school property on October 6, 1998. The court sentenced defendant to a five-year term of probation on December 19, 1998.

Lastly, on June 3, 2001, defendant pled guilty to fourth-degree unlawful possession of a weapon (a knife) and was sentenced to a four-year term of probation on September 12, 2001. Six and one-half years later on March 10, 2008, defendant filed a petition for PCR, claiming ineffective assistance of counsel because he alleged that he was not informed that his guilty plea could result in his deportation.

In rejecting his contention, Judge Kevin Callahan found that there was no excusable neglect in not filing his PCR petition within five years of his sentence as set forth in Rule 3:22-12(a) and, therefore, his petition was time-barred. Notwithstanding, Judge Callahan considered the merits of the petition, and noted that insofar as the petition related to the offense for which a jury found him guilty of cocaine possession, there was no ineffectiveness because no plea agreement was involved.

With regard to his plea to fourth-degree unlawful possession of a weapon, defendant was asked by the court during the plea colloquy if he was a citizen of the United States and answered under oath, "Yes, sir." Not until he filed his PCR petition did defendant inform the court he was born in Trinidad and has lived in the United States since he was one year old. The court determined that defendant should "not be rewarded for his deception." Judge Callahan found that there was no showing of any errors by counsel which would have led defendant to proceed to trial rather than plead guilty.

On appeal, defendant raises the following issues for our consideration.

POINT I

THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WAS TIME-BARRED.

POINT II

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED ...


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