State of New Jersey v. Shawn M. Simpson

• Court: New Jersey Superior Court Appellate Division
• Decided: January 31, 2024
• Docket: A-2525-21/A-3189-21
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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 NOS. A-2525-21 A-3189-21

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAWN M. SIMPSON, a/k/a SEAN SIMPSON, SHAWN A. SIMPSON, SHAWN MELVIN ALEXANDER SIMPSON, and MELVIN SIMPSON, JR.,

Defendant-Appellant. _______________________

Submitted October 16, 2023 (A-2525-21) and November 13, 2023 (A-3189-21) – Decided January 31, 2024

Before Judges Gilson and Bishop-Thompson.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-04-0376, and Bergen County, Indictment No. 04-10-1974.

Joseph E. Krakora, Public Defender, attorney for appellant (John Vincent Molitor, Designated Counsel, on the briefs). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent in A-2525-21 (Leandra L. Cilindrello, Assistant Prosecutor, of counsel and on the brief).

Mark Musella, Bergen County Prosecutor, attorney for respondent in A-3189-21 (K. Charles Deutsch, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

We address two related appeals in a single opinion. Defendant Shawn

Simpson, who is not a citizen of the United States of America, appeals from two

March 9, 2022 orders denying his petitions for post-conviction relief (PCR) from

two different convictions without an evidentiary hearing. Judge Ralph E.

Amirata concluded defendant's PCR petitions were time-barred under Rule 3:22-

12(a)(1), procedurally deficient under Rule 3:22-4(a) and Rule 3:22-5, and

lacked merit. Having conducted a de novo review, we affirm both orders.

I.

Defendant's two PRC petitions involve convictions arising out of charges

form two separate incidents, one of which occurred in Passaic County in 2003

and the other in Bergen County in 2004.

A. Passaic County Criminal Case

A-2525-21 2 In February 2003, defendant and T.L., the mother of defendant's child, had

a "heated argument in their home in Paterson, New Jersey." During the

argument, defendant allegedly strangled T.L. "by putting his hands around her

neck and applying pressure" and "threatened to kill" her. Their three-year-old

child was present during the assault but was not injured.

In April 2003, defendant was indicted for third-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(7); second-degree endangering the welfare of a child,

N.J.S.A. 2C:24-4a; and third-degree terroristic threats, N.J.S.A 2C:12-3a and

N.J.S.A. 2C:12-3b.

In September 2003, defendant pleaded guilty to third-degree terroristic

threats in accordance with the terms of a negotiated plea agreement.

Before accepting defendant's plea, the trial judge questioned defendant

regarding his citizenship. Defendant gave sworn testimony that he was a citizen

of the United States. He further testified that he was born in Paterson, New

Jersey. Defendant's "circled '[N/A]'" in response to Question 17 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?"

Defendant also testified that he reviewed the plea terms with plea counsel.

And he was satisfied with his attorney's services. Lastly, defendant testified that

A-2525-21 3 he was entering the guilty plea "freely and voluntarily" and "without force,

threats, or coercion." He did not have any questions concerning the plea hearing.

Satisfied with the responses, the judge accepted defendant's plea.

In October, the judge sentenced defendant to two years of probation,

entered a no-victim contact order, ordered defendant to enter domestic violence

counseling arranged by probation, and imposed various statutory fees.

Defendant did not file a direct appeal.

Approximately eighteen years later, on February 9, 2021, defendant filed

a PCR petition. Defendant claimed ineffective assistance of counsel because his

attorney failed to advise him that entering a guilty plea could have immigration

consequences. However, in defendant's unsigned certification submitted in

support of his petition, he admitted that he was a citizen of Jamaica.

On October 22, 2021, defense counsel filed a second unsigned

certification in support of defendant's petition. Defendant stated plea counsel

was ineffective because counsel failed to advise him of deportation

consequences, knew he was born in Jamaica and his parents were United States

Citizens, and never addressed his citizenship status or referred him to an

immigration attorney. Defendant also claimed that his "[N/A]" response to 17

A-2525-21 4 should have "prompted" plea counsel to inquire about his immigration status and

advise him regarding deportation.

B. Bergen County

In July 2004, defendant was charged with seven theft offenses: five

counts of third-degree forgery, N.J.S.A. 2C:21-1(a)(3), and two counts of third-

degree theft by deception, N.J.S.A. 2C:20-4.

In October 2007, defendant pleaded guilty in Bergen County to one count

of third-degree theft by deception. At the plea hearing, defendant testified that

he was not a United States citizen. He also testified that he understood an entry

of a guilty plea could affect his immigration status and lead to deportation.

Defendant circled "Yes" and "N/A" in response to Question 17 on his plea form.

The plea form also included a handwritten notation, "advised to seek legal

advice re: immigration issues." Defendant admitted to discussing the

immigration consequences with his counsel. Plea counsel also represented to

the court that she advised defendant that any crime "punishable by more than

one year could potentially subject [him] to deportation." When asked if he

understood the consequences and still wanted to enter a guilty plea, defendant

said, "Yes."

A-2525-21 5 Two months later, defendant was sentenced to three years of probation as

a condition of time served with a reverse split of 364 days in jail, full restitution

of $13,541.65 payable at a rate of $100 per month, and the remaining counts

were dismissed pursuant to the terms of the negotiated plea agreement.

Defendant completed probation on January 8, 2016. He did not file a direct

appeal.

Thirteen years later, on March 9, 2021, defendant filed a PCR petition. In

an unsigned and undated certification, defendant stated he was a Jamaican

citizen, "coerced into accepting the plea as a juvenile," and "[n]either the Judge

nor [his] attorney inform[ed him] that [he] was subject to mandatory removal

for aggravated felony under Immigration and Nationality Act (INA) by

accepting the plea for [theft by deception,] NJSA 2C:20-4."

Defendant's PCR counsel filed a supplemental certification on November

7, 2021. Defendant asserted that he was "misled" by plea counsel's advice that

he would be deported "only if" he were sentenced to more than one year in jail.

Based on plea counsel's advice, he "believed" he would not face deportation

because that plea deal "called for either straight probation or probation with 364

days jail." Defendant claimed plea counsel advised him that "[he] would need

A-2525-21 6 to consult an immigration attorney if an issue were to come up as a result of

[his] plea."

Defendant further alleged that his theft by deception conviction was an

aggravated felony, which subjected him to deportation, and that he would not

have pleaded guilty had he known of the potential deportation. Lastly, defendant

alleged that he learned immigration officials were investigating him based on

his conviction "[a]round 2019 or 2020."

In two separate March 9, 2022 orders, Judge Amirata denied defendant's

petitions in oral opinions accompanied by written orders. Central to both

petitions, the judge concluded the petitions were "clearly" time-barred under

Rule 3:22-12 and rejected defendant's contention that the exceptions contained

in Rule 3:22-12(a)(1) applied. He further found the claims were barred by Rule

3:22-4(a) because defendant failed to raise the issues in a direct appeal, failed

to demonstrate that the issues could not reasonably have been raised, and failed

to demonstrate how "enforcement of the time-bar would not result in a

fundamental injustice because . . . [he] sat on his rights to seek a remedy despite

the contradictory statement[s] made during the plea offering[s]." See State v.

Mitchell, 126 N.J. 565, 587 (1992). Lastly, the judge also determined that some

A-2525-21 7 of defendant's claims were barred by Rule 3:22-5, having been previously

adjudicated on the merits in prior proceedings.

Regarding the Passaic County guilty plea, the judge explained that

defendant failed to show excusable neglect because he was made aware of the

immigration consequences on the plea form and during the plea hearing. The

judge rejected defendant's argument that he "recently became aware" of his

"non-citizenship status" when agents were "at his home around 2019 or 2020"

because it was contradicted by defendant's guilty plea entered in October 2007

in Bergen County. The judge likewise rejected defendant's argument that he

was pressured into pleading guilty based on defendant's admission that he was

satisfied with the services rendered by plea counsel.

In a separate oral opinion addressing the Bergen County plea, the judge

rejected defendant's claim that he accepted the plea because he lacked

knowledge of the immigration consequences. The judge similarly found

defendant failed to show excusable neglect to relax the five-year rule because

he (1) failed to provide any specifics regarding his trial counsel’s alleged

deficiencies and (2) "circled" and "initialed" the bottom of the plea form that he

understood he would be deported if he was not a United States citizen.

Moreover, the judge highlighted defendant's contradictory testimony that during

A-2525-21 8 the Passaic County plea colloquy, he testified that he was a United States citizen.

Based on the plea colloquy and the plea forms, the judge concluded "there was

no evidence in the record that plea [c]ounsel mis[]advised defendant" regarding

deportation.

Judge Amirata also noted defendant's pleas predated Padillo v. Kentucky,

129 S. Ct. 1317 (2009) and State v. Nunez-Valdez, 200 N.J. 129 (2009). The

judge explained plea counsel was not required to give any advice about the

deportation consequences of pleading guilty. Therefore, neither the Passaic nor

Bergen County judge was not obliged to advise defendant of immigration

ramifications based on his testimony and the law.

Finally, the judge noted that defendant failed to make a motion to

withdraw his guilty plea. Nonetheless, the judge addressed the merits and

determined defendant was not entitled to withdraw his plea under State v. Slater,

198 N.J. 145 (2009).

II.

On appeal, defendant argues:

POINT I

THIS COURT SHOULD REVERSE THE LOWER COURT'S DECISION TO ENFORCE THE FIVE- YEAR TIME BAR BECAUSE THE DEFENDANT ESTABLISHED EXCUSABLE NEGLECT AND

A-2525-21 9 RELAXATION OF THE TIME BAR IS IN THE INTERESTS OF JUSTICE.

POINT II

THIS COURT SHOULD REVERSE THE LOWER COURT'S DECISION TO DENY DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AND ORDER AN EVIDENTIARY HEARING BECAUSE THE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT III

THIS COURT SHOULD REVERSE THE LOWER COURT'S DECISION TO DENY THE DEFENDANT'S PETITION FOR POST- CONVICTION RELIEF BECAUSE THE DEFENDANT ESTABLISHED HE WOULD NOT HAVE PLED GUILTY IF HIS ATTORNEY HAD NOT MISADVISED HIM ABOUT THE IMMIGRATION CONSEQUENCES OF HIS GUILTY PLEA.

We affirm substantially for the reasons set forth in Judge Amirata's

thorough and cogent oral opinion, which addressed the procedural deficiencies

and merits of defendant's PCR petitions. Accordingly, we need not re-address

defendant's arguments at length. We add the following comments.

"Post-conviction relief is New Jersey's analogue to the federal writ of

habeas corpus." State v. Pierre, 223 N.J. 560, 576, (2015) (quoting State v.

Preciose, 129 N.J. 451, 459 (1992)). Post-conviction relief provides "a built-in

A-2525-21 10 'safeguard that ensures that a defendant was not unjustly convicted.'" State v.

Nash, 212 N.J. 518, 540 (2013) (quoting State v. McQuaid, 147 N.J. 464, 482

(1997)). A petition for post-conviction relief is not a substitute for a direct

appeal. State v. Mitchell, 126 N.J. 565, 583 (1992).

We apply a de novo standard of review when a PCR court does not conduct

an evidentiary hearing. State v. Blake, 444 N.J. Super. 285, 294 (App. Div.

2016) (citing State v. Harris, 181 N.J. 391, 420-21 (2004)). When petitioning

for PCR, a defendant must establish entitlement to "PCR by a preponderance of

the evidence." State v. O'Donnell, 435 N.J. Super. 351, 370 (App. Div. 2014)

(citing Preciose, 129 N.J. at 459).

Rule 3:22-12 prescribes the time limitations for filing first PCR petitions.

Generally, the rule provides that "no petition shall be filed . . . more than [five]

years after the date of the entry . . . of the judgment of conviction that is being

challenged." R. 3:22-12(a)(1). The five-year time limitation of Rule 3:22-12

runs from the date of the conviction or sentencing, whichever the defendant is

challenging. State v. Milne, 178 N.J. 486, 491 (2004); State v. Goodwin, 173

N.J. 583, 594 (2002).

Here, defendant challenges the validity of his guilty pleas that resulted in

his convictions. Defendant's PCR petition concerning the Passaic County plea

A-2525-21 11 was filed in February 2021, nearly eighteen years after the 2003 conviction and

sentence. Similarly, the PCR petition concerning the Bergen County plea was

filed in March 2021, nearly thirteen years after the 2007 conviction and

sentence. When measured from either the 2003 or the 2007 date, defendant's

petitions are well beyond the five-year period for a first PCR petition. See R.

3:22-12(a)(1).

We are satisfied the judge properly weighed "the extent of the delay," "the

purposes advanced by the five-year rule," "the nature of defendant's claim[,] and

the potential harm . . . realized" by defendant. See State v. Murray, 162 N.J.

240, 251 (2000). The judge also considered the "cause of the delay, the

prejudice to the State, and the importance of the [defendant's] claim in

determining whether there has been an 'injustice' sufficient to relax the time

limits," State v. Norman, 405 N.J. Super. 145, 159 (App. Div. 2009). We agree

with Judge Amirata that defendant's "[i]gnorance of the law and rules of court

does not qualify as excusable neglect," State v. Merola, 365 N.J. Super. 203,

218 (Law Div. 2002), aff'd, 365 N.J. Super. 82 (App. Div. 2003) (citing Murray,

162 N.J. at 246). Nor does defendant's decision to "remain intentionally

ignorant of . . . legal consequences" after entry of the plea in 2007 support a

A-2525-21 12 finding of excusable neglect. State v. Brown, 455 N.J. Super. 460, 471 (App.

Div. 2018).

Based on the record, we are persuaded defendant failed to make a prima

facie showing of excusable neglect supporting the filing of his PCR petitions

under the five-year time bar in Rule 3:22-12(a)(1)(A). We hold that defendant

had no vested right to file two petitions wholly out of time, and therefore, the

petitions were time-barred.

Rule 3:22-4(a)(2) permits the court to hear an otherwise barred claim if

"enforcement of the bar . . . would result in fundamental injustice[.]" We agree

with the judge's conclusions that defendant's claims are barred by Rule 3:22-4.

Defendant could have raised his ineffective-assistance claims involving trial

counsel on direct appeal. Yet, he elected not to do so. Therefore, we need not

address defendant's claim that he was entitled to an evidentiary hearing.

Further, the transcripts of the plea proceedings did not support defendant's

contention that the trial court failed to explain the plea or the immigration

consequences of entering pleas. As such, these arguments warrant no further

discussion. See R. 3:22-5. Defendant does not identify any new rule of

constitutional law or other facts that would excuse his failure to raise these

issues on a timely basis.

A-2525-21 13 Affirmed.

A-2525-21 14