On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 00-04-0349.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Baxter.
Defendant Kennedy Hall appeals from the denial of his petition for post-conviction relief (PCR). On appeal, defendant argues:
THE LAW DIVISION JUDGE IMPROPERLY DENIED DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS OUT-OF-TIME, DECLARING INCORRECTLY THAT HE HAD NO AUTHORITY UNDER THE COURT RULES TO RELAX THE APPLICABLE TIME BAR, WHEN IN FACT DEFENDANT HAD MET THE EXCUSABLE-NEGLECT STANDARD OF THE RULE, AS INTERPRETED BY THIS COURT IN STATE V. TELFORD; ONCE STATE V. GAITAN IS DECIDED IN THE STATE SUPREME COURT, THE MATTER SHOULD BE REMANDED TO ADDRESS THE SUBSTANCE OF THE PCR CLAIMS, LIKELY WITH AN EVIDENTIARY HEARING, AS ORDERED IN GAITAN.
We agree and reverse and remand for an evidentiary hearing.
On September 25, 2000, pursuant to a plea agreement, defendant, a Jamaican national, pled guilty to two counts of first-degree armed robbery, N.J.S.A. 2C:15-1, and was sentenced to concurrent terms of ten years in state prison subject to an 85-percent period of parole ineligibility, as mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2, and a five-year period of parole supervision upon release. The remaining charges in the indictment were dismissed in accordance with the plea agreement.
On March 19, 2009, defendant was released from state custody. However, he was immediately transferred to federal Immigration Customs Enforcement (ICE), pursuant to an immigration detainer, pending deportation proceedings.
On June 8, 2010, defendant filed a PCR petition, alleging counsel was ineffective because he failed to warn defendant about the deportation consequences of his guilty plea. In support of his PCR petition, defendant attached the plea agreement form, which reflected the answer "N/A" in response to Question 17, asking: "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?" Further, the verified PCR petition stated: "Each answer on the [p]lea [f]orm was circled by counsel. Counsel read the [p]lea [f]orm questions to the [p]petitioner. The [p]petitioner did not read the questions himself." Finally, the record from defendant's plea hearing includes no discussion of question seventeen or deportation consequences of a conviction.
The PCR judge denied the PCR request without a hearing, concluding defendant's petition was time-barred. See R. 3:22-12(a)(1). The PCR judge did not consider the merits of defendant's request.
Rule 3:22-12(a)(1) provides that, subject to certain exceptions not relevant to defendant's application, no petition for PCR shall be filed . . . more than 5 years after the date of entry . . . of the judgment of conviction that is being challenged unless it alleges facts showing that the delay . . . was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement . . . would result in a fundamental injustice.
In assessing whether excusable neglect justifies the delay, courts 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." State v. Afanador, 151 N.J. 41, 52 (1997) (citations omitted). "Absent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay." Ibid.
On appeal, defendant argues his PCR request, filed more than five years after his conviction, was not time-barred because the immigration consequences of his plea were not revealed until his 2009 release from prison, followed by the effectuation of the immigration detainer. He then consulted with counsel who advised he was subject to deportation based upon his prior ...