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State v. Douglas

Superior Court of New Jersey, Appellate Division

October 15, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
BOBBY DOUGLAS, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 4, 2013

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-07-3133.

Carl J. Herman, attorney for appellant.

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jo-Ann Teng, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Before Judges Graves and Guadagno.

GRAVES, J.A.D.

Defendant Bobby Douglas appeals from an order entered on March 28, 2012, denying his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.

Defendant is not a citizen of the United States. He was born in Jamaica in 1973 and entered the United States in 1988 when he was fifteen years old. Defendant graduated from high school in 1991. Following his graduation, he served in the United States Navy and was honorably discharged in 1993.

In July 1998, an Essex County grand jury indicted defendant for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count two); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(5) (count three); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count four). The charges alleged that defendant had sexual relations with a minor in July 1996 and December 1997.

On July 15, 1999, when he was twenty-five years old, defendant pled guilty to count four, endangering the welfare of a minor. In exchange for the plea, the State agreed to dismiss the remaining charges and to recommend that any custodial sentence not exceed three years in prison. The assistant prosecutor explained that even though the victim, her father, and her grandmother had provided written statements outlining the offenses, the State was "willing to recommend such a lenient disposition" because the victim was "doing very well in school now, and the family wants to try to put this behind her."

Additionally, defense counsel advised the court that he had discussed the victim's reluctance to testify with defendant:

[DEFENSE COUNSEL]: . . . I just want to also put on the record that in going over the offer of the State with [defendant], I also advised him, however, in knowing [the assistant prosecutor] for over ten years, that if he rejected the plea, the case wouldn't just go away, that in all likelihood [the assistant prosecutor] would, through the power of subpoena, get the people here and even if they recanted on the witness stand, I advised him that there still was a risk of conviction of serious offenses because of the prior statements that would come into, ultimately, evidence substantively; and knowing all of that, he has decided to take the plea as offered.

While under oath, defendant testified he was entering the plea voluntarily and understood the terms of the plea agreement. Defendant also confirmed that his attorney had reviewed the plea forms with him before he signed them, and he provided the answers to the questions on the forms:

THE COURT: Were those forms initialed and signed by you today?
THE DEFENDANT: Yes, ma'am.
THE COURT: Did you sign and initial after reviewing each of these forms with your attorney?
THE DEFENDANT: Yes, ma'am.
THE COURT: Did you read the forms before you provided your signatures?
THE DEFENDANT: Yes, ma'am.
THE COURT: And did you discuss this with [your attorney]?
THE DEFENDANT: Yes, ma'am.
THE COURT: Did you sign it voluntarily?
THE DEFENDANT: Yes, ma'am.
THE COURT: Did he answer all of your questions regarding the information contained on these forms?
THE DEFENDANT: Yes, ma'am.
THE COURT: If I were to ask every question now that you're under oath, would your answers be the same?
THE DEFENDANT: Yes, ma'am.
THE COURT: On the first plea form, your copy is pink in front of you, you have X'd out certain answers. Were these answers to the questions on this form provided by you?
THE DEFENDANT: Yes, ma'am.
THE COURT: In other words, [your attorney] and you read the question, and then you provided the answer that's crossed out on this form?
THE DEFENDANT: Yes, ma'am.

Defendant admitted during the plea hearing that in July 1996, when he spoke to the victim named in the indictment, he knew she was under the age of sixteen. Defendant also admitted that he attempted "to encourage and persuade her . . . to have sexual intercourse with [him] while in the City of Newark."

In addition, when questioned by the court, defendant testified as follows:

THE COURT: Why are you pleading guilty, because you are guilty or for some other reason?
THE DEFENDANT: Because I'm guilty.
THE COURT: I'm sorry?
THE DEFENDANT: Because I'm guilty..
THE COURT: Has [your attorney] reviewed the discovery with you?
THE DEFENDANT: Yes, ma'am.
THE COURT: Has he discussed your option with you regarding taking a guilty plea or going to trial?
THE DEFENDANT: Yes, ma'am.
THE COURT: Has he discussed the potential outcome of a trial with you?
THE DEFENDANT: Yes, ma'am.
THE COURT: Has he answered all of your questions?
THE DEFENDANT: Yes.
THE COURT: Explained your rights to you?
THE DEFENDANT: Yes, ma'am.
THE COURT: Are you satisfied with his services?
THE DEFENDANT: Yes, ma'am.
THE COURT: Do you have any questions of [your attorney] or the court before we conclude today?
THE DEFENDANT: No, ma'am.

On November 19, 1999, defendant was sentenced to five years' probation. Mandatory penalties and assessments, and Megan's Law conditions were also imposed. Defendant served his probationary sentence and did not file a direct appeal.

Defendant's PCR petition was filed in April 2011, more than eleven years after he was sentenced. In a certification dated March 30, 2011, defendant stated he was arrested by immigration officers in June 2005 and "placed in immigration detention because of [his] guilty plea." Defendant also said, "In May 2006, I was deported to Jamaica due to my criminal conviction for endangering the welfare of a child. I am now a resident of Jamaica." Defendant stated he told his attorney he was a Jamaican citizen, but his attorney "never discussed . . . the immigration consequences of a guilty plea." In addition, defendant certified as follows:

I was never informed by my attorney or the judge that deportation was possible or mandatory as a result of my guilty plea. If I had been so informed I would have taken my case to trial, in that I would not have jeopardized my residency in the United States. I also was aware that the charges were not true and that the alleged victim would not testify against me. I am married to an American Citizen and I served honorably in the United States Navy prior to being charged in this case. I am eager to return to the United States to resume life with my wife and family.

In a letter brief dated April 11, 2011, defendant's PCR attorney noted defendant was represented by a pool attorney with the Office of the Public Defender, who is now deceased. Defendant's PCR attorney argued that trial counsel was ineffective because he "never discussed the immigration consequences of [the] plea with [defendant]." According to PCR counsel, defendant "received absolutely no legal guidance on the deportation issue. As such, there can be no doubt that [defendant] received ineffective representation of counsel in this matter."

The PCR court denied defendant's petition for relief. In a written decision, the court concluded that defendant's ineffective-assistance-of-counsel claim is time-barred:

A petition for post-conviction relief must be filed within five years after the judgment of conviction unless the defendant alleges facts showing (1) that the delay was due to the defendant's excusable neglect, and (2) that there is a reasonable probability that, if the defendant's factual assertions were found true, then enforcement of the time bar would result in a fundamental injustice. R. 3:22-12(a)(1). In deciding whether to relax the time bar, a "court should 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. Mitchell, 126 N.J. 565, 580 (1992). Defendant does not address the time-bar issue in his brief.
Defendant does not establish excusable neglect for failing to file his PCR in a timely fashion. Defendant was convicted on November 19, 1999, and filed this PCR more than eleven years later, on April 11, 2011. Even assuming that it would be excusable neglect for defendant to not file a PCR until after he was notified by federal immigration authorities about the immigration consequences of his plea, defendant did not file his PCR within five years of that notification: defendant was arrested by immigration officers in June 2005 and did not file his PCR until nearly six years later, in April 2011. The State argues that a plea withdrawal would cause the State prejudice by requiring it to try a case that it settled more than a decade earlier, and defendant does not address this argument in his brief.
In sum, defendant's claim is time-barred because it was not filed within the applicable time limit under the Court Rules, and because defendant has not established that the time bar should be relaxed. The State convincingly argues that it would be prejudiced by having to litigate a claim ten years after it was settled.

On appeal from the order denying his petition, defendant argues:

POINT I
THE TRIAL COURT'S REFUSAL TO GRANT AN EVIDENTIARY HEARING, EVEN THOUGH PETITIONER MADE A PRIMA FACIE SHOWING THAT HIS ATTORNEY DEPRIVED HIM OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN THE ATTORNEY ERRONEOUSLY TOLD PETITIONER THAT HE WOULD NOT BE SUBJECT TO DEPORTATION, REQUIRES A REVERSAL AND REMAND.

Based on our review of the record and the applicable law, we reject this argument and affirm substantially for the reasons expressed by the PCR judge in her written decision. We add only the following comments.

The standard to establish an ineffective-assistance-of-counsel claim is well settled and need not be repeated here. In the context of a guilty plea, a defendant must show that counsel's performance was objectively deficient and also "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 210 (1985); accord State v. DiFrisco, 137 N.J. 434, 457 (1994). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984).

In State v. Nuñez-Valdéz, 200 N.J. 129, 143 (2009), the Court allowed the defendant to withdraw his guilty plea because he received "inaccurate information from counsel concerning the deportation consequences of his plea." Moreover, in State v. Gaitan, 209 N.J. 339, 375 (2012), cert. denied, __U.S. __, 133 S.Ct. 1454, 185 L.Ed.2d 361 (2013), the Court held that Nuñez-Valdéz is applicable retroactively. In this case, however, defendant submitted two separate certifications in support of his request for PCR, and he never claimed he received incorrect advice from his attorney with regard to his immigration status. Instead, he stated in paragraph four of his March 30, 2011 certification: "Potential deportation was never discussed." Under these circumstances, defendant failed to establish a prima facie claim of affirmative misinformation.[1]

It is also clear that defendant's petition is time-barred. Defendant's judgment of conviction is dated November 19, 1999, and he filed his petition for PCR on April 11, 2011, more than eleven years later. Rule 3:22-12(a)(1) establishes a five-year time limitation for filing a PCR petition, unless the petition alleges facts showing the delay "was due to defendant's excusable neglect" and a reasonable probability that if defendant's factual assertions are true, "enforcement of the time bar would result in a fundamental injustice." As the PCR court recognized, there has been no such showing in this case.

Affirmed.


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