July 12, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
MAKENTON LOUIS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 11, 2013.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 93-07-1015.
Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).
Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Derek T. Nececkas, Assistant Prosecutor, of counsel and on the brief).
Before Judges Graves and Espinosa.
Defendant appeals from the denial of his petition for post-conviction relief (PCR). We affirm.
Defendant pled guilty to third-degree possession of a controlled dangerous substance with intent to distribute pursuant to a plea agreement in July 1994. He was sentenced to three years probation. He did not file a direct appeal from his convictions and sentence.
Defendant filed a PCR petition in August 2008. He argued that he was denied the effective assistance of counsel because, inter alia, his trial counsel had a conflict of interest arising out of his employment as a municipal prosecutor and had not advised defendant that he would be subject to deportation after pleading guilty.
While his petition was pending, defendant was deported.
With defendant participating by telephone, an evidentiary hearing was conducted. The hearing was limited to whether trial counsel had a conflict of interest resulting in ineffective assistance of counsel, and whether defendant had established sufficient facts to show he is entitled to vacate his guilty plea.
The PCR court denied defendant's petition by order dated December 18, 2009. Defendant presents the following issues for our consideration in his appeal.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF BECAUSE A CONFLICT OF INTEREST DEPRIVED DEFENDANT OF THE EFFECTIVE ASSISTANCE OF COUNSEL.
DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT COUNSEL MISINFORMED HIM ABOUT THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA.
DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING AND/OR POST-CONVICTION RELIEF BASED ON THE REMAINING ARGUMENTS ADVANCED BY DEFENDANT AND DEFENSE COUNSEL.
After reviewing defendant's arguments in light of the record and applicable law, we are satisfied that they lack sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(2), beyond the following comments.
Rule 3:22-12(a)(1) states, in pertinent part:
[N]o petition shall be filed pursuant to this rule more than 5 years after the date of entry pursuant to Rule 3:21-5 of the judgment of conviction that is being challenged unless it alleges facts showing that the delay beyond said time 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 of the time bar would result in a fundamental injustice.
Because defendant's petition was filed more than thirteen years after the judgment of conviction was entered, it is procedurally barred as untimely unless defendant's delay was due to excusable neglect and there is "a reasonable probability" that enforcement of the time bar would result in a fundamental injustice.
Defendant contends that he has made the requisite showing of excusable neglect because, he alleges, his trial counsel withheld the fact that he had a conflict of interest based upon the fact that he was a municipal prosecutor in Roselle Township, where defendant was arrested. However, defendant fails to provide sufficient factual detail to support the conclusion that it was excusable for him to fail to file his petition within five years of the date of entry of the judgment of conviction. In his petition, he merely stated he "found out that his counsel was also a prosecutor in the township where he was arrested[.]" In his supplemental petition, defendant stated:
I have now learned that [my defense counsel] was the Municipal Court prosecutor for the [T]ownship of Roselle from the early 1980's until 2007. . . . At no time during any of my conversations with [counsel] was I ever advised that he was the municipal court prosecutor in Roselle. As stated in my initial certification in support of my PCR, it was not until many years later I found out that [counsel] was the municipal court prosecutor in the very same township that I was arrested and charged with this crime. I now know that [counsel] was the prosecutor in Roselle and my attorney for this Roselle charge at the same time.
The fact that defendant's trial counsel was a municipal prosecutor was a matter of public record at the time he represented defendant. No facts have been presented to show that defendant did not know or could not have known this fact with the exercise of reasonable diligence within the five years that followed his conviction.
Moreover, although Rule 1:15-3(b) was amended to "prohibit municipal prosecutors from practicing criminal law as a defense attorney in the county in which he or she holds office[, ]" State v. Clark, 162 N.J. 201, 207 (2000), the Supreme Court explicitly "preclude[d] any retroactive application of the amended Rule." Id . at 208. The per se bar therefore did not apply to defendant's representation in 1993 and 1994.
Defendant has also failed to show the reasonable probability that the enforcement of the bar would result in a fundamental injustice. The thrust of his arguments is that he was not advised that there would be deportation consequences when he entered a guilty plea.
In Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), the Supreme Court held that the Sixth Amendment requires an attorney for a criminal defendant to provide advice about the risk of deportation arising from a guilty plea. Because defendant's conviction became final approximately six years earlier, the success of his argument depends upon a retroactive application of Padilla. However, the Supreme Court has since decided that Padilla does not have retroactive effect Chaidez v United States ___ U.S. ___, 133 S.Ct. 1103 1105 185 L.Ed.2d 149 154 (2013) Accordingly no fundamental injustice will result from the enforcement of the time bar.