On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 92-08-01217.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 29, 2010
Before Judges A.A. Rodriguez and LeWinn.
Defendant appeals from the December 16, 2008 order denying his petition for post-conviction relief (PCR) as time-barred under Rule 3:22-12(a)(1). We affirm
On October 26, 1992, defendant pled guilty in Bergen County to one count of third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(5). He gave a factual basis indicating that on April 1, 1992, he drove from Ridgefield to New York City and "picked up" cocaine to bring back to New Jersey for "somebody else." Pursuant to a negotiated plea agreement, he was sentenced, on December 18, 1992, to a three-year term of probation. Because defendant was a resident of Union County, probation supervision was transferred to that county. It appears that, at the time of his plea and sentence, defendant, a native of Haiti, had been in the United States on a tourist visa since July 1989.
Defendant was arrested in Union County in 1993 and, on January 13, 1994, entered a guilty plea to possession of a controlled dangerous substance within 1000 feet of school property. Sentencing was scheduled for April 15, 1994; defendant failed to appear on that date and a bench warrant was issued for his arrest.
On September 9, 1994, defendant was charged with violation of probation (VOP) in Bergen County for (1) his arrest, guilty plea and the issuance of a bench warrant in Union County; (2) his failure to pay mandatory fines and assessments; and (3) his failure to report to his probation officer. For reasons that are not clear in the record, defendant did not appear for sentencing on the VOP in Bergen County until October 12, 2007. At that hearing it was disclosed that defendant had been in custody since the preceding July on an immigration detainer, which is discussed below. Defendant pled guilty to all of the VOP charges. The judge terminated probation as unsuccessful and ordered defendant to pay the outstanding balance on his fines and assessments.
Defendant filed his PCR petition on March 28, 2008, alleging ineffective assistance of his original plea counsel for failing to advise him of possible immigration consequences of his guilty plea. Defendant asserted that on July 18, 2007, the Department of Homeland Security, Immigration and Customs Enforcement (ICE) detained him and initiated removal proceedings, adding: "[ICE] asserts that the Union County [c]onviction . . . makes [defendant] eligible for deportation under 8 U.S.C.A[.] section 237(a)(2)(A)(ii)*fn1 , as amended . . . on [sic] 1996 as a person [c]onvicted of charges alleged [from 1992]." Defendant also claimed counsel was ineffective for failing to file a motion to suppress; he further sought to withdraw his plea "and have his charges dismissed on the grounds of racial profiling[,]" and claimed he was innocent of the charges.
The same judge who had sentenced defendant on his VOP heard oral argument on his PCR petition. At that proceeding, the transcript of defendant's 1992 plea was unavailable. The judge had the prosecutor read into the record the plea form defendant completed and signed at that time. In that form, defendant acknowledged he was guilty of the charge to which he was pleading; he was proceeding voluntarily and knowingly; he understood the rights he was waiving; he was satisfied with his attorney's services; and, particularly pertinent to this appeal, he understood that if he was not a United States citizen or national, he might be subject to deportation as a result of his plea.
The State moved to dismiss the PCR petition as out of time. Defense counsel requested an opportunity to file a supplemental brief addressing "the issue of excusable neglect to get around the five[-]year time bar [in Rule 3:22-12(a)(1)]."
The judge granted the State's motion and denied the PCR petition. On December 5, 2008, defense counsel wrote to the judge to advise that the 1992 plea transcript had been located and asked for reconsideration of the denial of defendant's PCR petition and to allow defendant "to go forward and file a brief in support of [PCR]." No further correspondence ensued on this point and, on December 16, 2008, the judge entered the order denying PCR.
On appeal, defendant raises the following contentions for our consideration:
POINT ONE: DEFENDANT WAS DEPRIVED OF A FAIR HEARING BY THE TRIAL COURT'S SUMMARY DENIAL OF HIS PETITION FOR POST-CONVICTION RELIEF POINT TWO[:] DEFENDANT'S POST-CONVICTION RELIEF COUNSEL PROVIDED INEFFECTIVE ASSISTANCE TO DEFENDANT Having considered these contentions in light of the record and the controlling legal principles, we ...