State of New Jersey v. Alexeis Bejerano

• Court: New Jersey Superior Court Appellate Division
• Decided: July 5, 2024
• Docket: A-2913-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2913-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALEXEIS BEJERANO,

Defendant-Appellant. _______________________

Submitted June 3, 2024 – Decided July 5, 2024

Before Judges Berdote Byrne and Bishop-Thompson.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-02-0225.

Michael J. Pastacaldi LLC, attorneys for appellant (Michael J. Pastacaldi, on the briefs).

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Patrick F. Galdieri, II, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant appeals from an order of May 12, 2023 denying his petition for

post-conviction relief (PCR) without an evidentiary hearing, after the trial judge

ruled his petition was procedurally time-barred and issued an order denying his

motion to withdraw his guilty plea. We affirm for the reasons expressed by the

Honorable Maureen B. Mantineo in her well-reasoned oral opinion. We add the

following comments.

I.

Defendant was indicted in February 2005 on one count of first-degree

distribution of a controlled dangerous substance (CDS), one count of second-

degree distribution of a CDS, two counts of third-degree distribution of a CDS

within 1000 feet of school property, and one count of third-degree unlawful

possession of a loaded shotgun. On June 8, 2005, he pleaded guilty to first-

degree possession of a CDS, and the State recommended a ten-year prison term

with a twenty-seven-month parole disqualifier.

Defendant was sentenced consistent with the plea agreement on October

13, 2005. He claims he reviewed question seventeen on the plea form pertaining

to the immigration consequences of his plea, but his trial counsel told him he

had nothing to be concerned about because the United States does not deport to

A-2913-22 2 Cuba. He does not dispute he was questioned by the trial judge at the plea

hearing and stated he understood the deportation consequences.

After serving twenty-seven months, defendant was turned over to

Immigration and Customs Enforcement (ICE), which held him for 180 days

before releasing him on ICE supervision. In December 2022, he filed a petition

for PCR, claiming ineffective assistance of counsel for failing to adequately

advise him of immigration consequences and seeking to withdraw his guilty

plea. The PCR judge denied both motions on May 12, 2023. This appeal

followed.

II.

In reviewing a PCR petition, we afford deference to the PCR court's

findings of fact, but our interpretation of the law is de novo. State v. Nash, 212

N.J. 518, 540-41 (2013). Pursuant to Strickland v. Washington, 466 U.S. 668

(1984), which our Supreme Court adopted in State v. Fritz, 105 N.J. 42, 67

(1987), a defendant is entitled to PCR for ineffective assistance of counsel if he

proves "[defendant's] counsel's performance was deficient," and counsel's

"deficient performance prejudiced the defense." Id. at 52 (quoting Strickland,

466 U.S. at 687). In addition, where a guilty plea is involved, the defendant

must prove "a reasonable probability [exists] that, but for counsel's errors, [the

A-2913-22 3 defendant] would not have [pleaded] guilty and would have insisted on going to

trial." State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (second alteration in

original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).

As Judge Mantineo correctly found, defendant's PCR petition is time-

barred pursuant to Rule 3:22-12(a)(1)(A). The rule requires petitions for PCR

to be brought within five years of the date of the judgment of conviction 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 . . . ." R. 3:22-12(a)(1)(A). PCR is not a substitute

for direct appeal, and its various procedural bars work to further the public

policy of promoting finality in judicial proceedings. State v. Peoples, 446 N.J.

Super. 245, 254 (App. Div. 2016) (quoting State v. Echols, 199 N.J. 344, 357

(2009)). The five-year time bar "should be relaxed only 'under exceptional

circumstances' because '[a]s time passes, justice becomes more elusive and the

necessity for preserving finality and certainty of judgments increases.'" State v.

Goodwin, 173 N.J. 583, 594 (2002) (alteration in original) (quoting State v.

Afanador, 151 N.J. 41, 52 (1997)). "[T]he extent and cause of the delay, the

prejudice to the State, and the importance of the petitioner's claim" should be

A-2913-22 4 considered in analyzing whether injustice would occur sufficient to loosen Rule

3:22-12(a)(1)(A)'s time bar. Goodwin, 173 N.J. at 594 (quoting Afanador, 151

N.J. at 52).

Defendant was required to file his PCR petition by October 13, 2010, five

years from the date of the judgment of conviction. Defendant filed his PCR

petition on December 23, 2022, over twelve years after the deadline expired.

Despite this, he argues his neglect in filing the petition was excusable and the

interests of justice permit delay due to prior counsel's failure to advise him of

the immigration repercussions of his plea.

As aptly noted by Judge Mantineo, defendant has not demonstrated

excusable neglect exists or that fundamental injustice would result if the time

bar is enforced. There are no exceptional circumstances present to justify

evading the strong policy favoring finality and certainty in criminal judgments.

See Goodwin, 173 N.J. at 594. Defendant concedes he was made aware of the

immigration consequences of his plea by the trial judge. Furthermore, his claim

that he was not advised the conviction would prevent him from becoming a

United States citizen until 2022 cannot establish the compelling extenuating

circumstances necessary to expand the time bar.

A-2913-22 5 Defendant never filed a direct appeal. His guilty plea was entered five

years before Padilla v. Kentucky, 559 U.S. 356, 374 (2010) that recognized a

pleading defendant's right to be apprised of immigration consequences, which

has only prospective effect. State v. Antuna, 446 N.J. Super. 595, 600 (App.

Div. 2016). Moreover, he concedes he was told of deportation consequences

and represented he had consulted with several immigration attorneys over the

course of the intervening years, but did not file the PCR until 2022.

To the extent we have not addressed defendant's remaining arguments on

appeal, we find they lack sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(2).

Affirmed.

A-2913-22 6