NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 26, 2012
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 02-09-1944.
Meehan & Quirk, LLC, attorneys for appellant (William Quirk, on the briefs).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief).
Before Judges Fasciale and Maven.
Defendant Rod McDonald appeals the Law Division order dated March 11, 2011, denying him post-conviction relief (PCR). We affirm.
At the time of his guilty plea, defendant was twenty-one years old and an illegal alien who came to the United States in 1990, at age nine with his parents. He is a native of Trinidad.
The facts as adduced from the record indicate that on December 3, 2002, defendant pled guilty to count three of the indictment, third-degree possession of a controlled dangerous substance (CDS) with intent to distribute within 1000 feet of a school, contrary to N.J.S.A. 2C:35-7. Defendant was sentenced in September 2003 to five years of probation, with long-term inpatient drug treatment. Defendant did not appeal, nor did he file a PCR motion during the five-year statutory period.
Defendant subsequently violated the terms of his special probation on numerous occasions. On June 10 2010, Immigration and Customs Enforcement (ICE) officers arrested and detained defendant, pending immigration removal proceeding due to the drug conviction.
Defendant, through counsel, filed a petition for PCR on October 8, 2010, seeking to set aside his guilty plea and sentence due to assertions of ineffective assistance of counsel for failing to advise him of the deportation consequences resulting from his guilty plea. Defendant argued that the plea was not entered knowingly and voluntarily due to the ineffective assistance of counsel. Alternatively, he contended that the failure to file a timely petition for PCR was not due to neglect.
Following oral argument, the Honorable Lourdes I. Santiago, J.S.C., issued an oral and written opinion. First, the judge considered the timeliness of the petition. The court noted that defendant was sentenced on September 26, 2003 and the judgment of conviction was entered on October 2, 2003. The PCR petition was filed on October 8, 2010, more than seven years later, outside the time prescribed under Rule 3:22-12. The judge explained that "[t]he five-year time period commences when the judgment of conviction is entered and is not stayed nor tolled by any appellate or other review proceedings."
See State v. Dugan, 289 N.J.Super. 15, 19 (App. Div.), certif. denied, 145 N.J. 373 (1986). The judge found that defendant had not presented any arguments for "exceptional circumstances" to support relaxing the time bar rule.
See State v. Afanador, 151 N.J. 41, 52 (1997). Ultimately, the court found that the petition was time barred, having been filed beyond five years of the conviction.
Next, the court considered the merits of the petition, particularly defendant's claim that his trial counsel had not advised him as to the collateral consequences of his plea prior to entering into the agreement. Counsel argued that trial counsel was dilatory in not inquiring further into defendant's immigration status given that the pre-sentence investigation report indicated in several places that defendant was born in Trinidad. The State countered that defendant answered "N/A" to Question 17 on the plea form that asked "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?" Also, during the plea hearing defendant testified to the court, under oath, that he was a United States citizen. Counsel retorted that, notwithstanding defendant's answer to Question 17 and his comments to the court, had trial counsel questioned defendant further, his true immigration status would have been revealed. The judge rejected counsel's argument that defendant may have believed that since his parents had become ...