NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0222-18T1 A-0226-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BOBSEUS WILLIAMS, a/k/a DENNIS SIMPSON,
Defendant-Appellant.
Submitted November 12, 2019 – Decided December 12, 2019
Before Judges Geiger and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 90-10-4782 and 91-02-0795 and Accusation Nos. 90-12-2548 and 90-12-2549.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth E. Hunter, Designated Counsel, on the briefs).
Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the briefs).
PER CURIAM
Defendant Bobseus Williams, a non-citizen of the United States, appeals
from June 13, 2018 and June 28, 2018 Law Division orders denying his petitions
for post-conviction relief (PCR) without evidentiary hearings. We have
calendared these two appeals back-to-back and affirm both orders.
I.
Defendant pled guilty on December 19, 1990 to one count of third-degree
possession of a controlled dangerous substance (CDS), one count of third-degree
burglary, and one count of third-degree resisting arrest. Approximately two
months later, on February 15, 1991, defendant also pled guilty to one count of
third-degree possession of CDS with intent to distribute on school property,
charged in a separate indictment. That same day, the court sentenced defendant
in accordance with the plea agreement to an aggregate four-year sentence (the
1991 convictions).
Approximately ten years later, on February 9, 2001, defendant pled guilty
to two counts of second-degree assault, and one count of third-degree possession
of a weapon with an unlawful purpose. On March 16, 2001, the court sentenced
defendant, again in accordance with his plea agreement, to a nine-year aggregate
A-0222-18T1 2 custodial term with an eighty-five percent period of parole ineligibility, pursuant
to the No Early Release Act, N.J.S.A. 2C:43-7.2 (the 2001 convictions). The
sentencing court also ordered that the 2001 convictions run concurrent to a
federal sentence defendant was then serving.
Defendant did not file a direct appeal of his convictions or sentences.
Instead, on June 7, 2017 and July 19, 2017, approximately twenty-six years after
his 1991 convictions and sixteen years after his 2001 convictions, defendant
filed two PCR petitions in which he primarily alleged his plea counsel was
constitutionally deficient for failing to advise him of the immigration
consequences of his pleas.
Specifically, in his June 7, 2017 petition related to his 1991 convictions,
defendant alleged that at "the time of [his] plea negotiation, [his] [a]ttorney
failed to inform [him] or [advise] [him] about any [i]mmigration consequences
that would affect [him]" and had he been correctly advised, he "would have
spoken to an [i]mmigration attorney before [he] took [his] [p]lea." Further, in
his supplemental certification defendant attested that "had [he] known of the
collateral consequences of the guilty plea, [he] would never have accepted it and
would have taken the case to trial as [he] had originally intended."
A-0222-18T1 3 Defendant also certified that neither his attorney nor the court advised him
that he "had the ability to file a direct appeal of [his] conviction or that [he]
could file a petition for [PCR] and that if [he] did not file within [five] years of
[his] conviction that [he] could lose [his] ability to do that." He stated that "[i]t
was not until [he] was arrested and incarcerated by [U.S. Immigration and
Customs Enforcement (ICE)] that [he] learned of [his] rights and filed this
petition," which he contended "show[ed] excusable neglect for not filing within
the [five] year time period," prescribed in Rule 3:22-12(a)(1).
In his July 19, 2017 petition related to his 2001 convictions, defendant
similarly claimed that "[a]t the time of [his] plea negotiation[,] [he] was denied
the effective assistance of counsel" because his attorney "failed to inform or
[advise] [him] about the [i]mmigration [c]onsequences of [his] [g]uilty plea. "
Defendant further stated that he "would not have entered [the guilty plea], but
for the lack of advice [from] [his] attorney," and would have consulted with an
immigration attorney prior to pleading guilty.
In his March 1, 2018 supplemental certification, defendant added that had
he known his plea would get him deported, he would not have pled guilty and
would have pursued the affirmative defense of self-defense because he "was
injured in the attack . . . [and] had a broken nose and missing tooth," and he
A-0222-18T1 4 "relied on [his] lawyer's advice that [the guilty plea] was better than pursuing
the defense." Defendant also noted that he "was denied [a]sylum in 2017 and
filed [his] PCR [petition] shortly thereafter."
In a June 13, 2018 written opinion and order, the court denied defendant's
petition related to his 1991 convictions. The court held that defendant's petition
was time-barred under Rule 3:22-12(a)(1)(A) because "[it] was not timely filed,
and because [d]efendant fail[ed] to demonstrate fundamental [in]justice and
excusable neglect." The court acknowledged that the issues raised by defendant
in his petition fell within the purview of Rules 3:22-2 and 3:22-4, but held that
"Rule 3:22-12 . . . bar[red] [d]efendant's petition, since he submitted it long after
the expiration of the five-year filing deadline, and has presented no 'exceptional
circumstances' that would trigger its extension."
The court explained that under the rule defendant "must [establish] both
excusable neglect for the delay and a reasonable probability that his assertions,
if true, would render the enforcement of the conviction a 'fundamental
injustice,'" but that defendant "failed to sustain either burden." The court noted
that defendant attempted to explain his belated filing by claiming he did not
learn of the immigration consequences of his 1991 convictions until he was later
detained by immigration officials but "never indicate[d] when he was
A-0222-18T1 5 incarcerated by [i]mmigration and processed for deportation, or how long after
that point he filed his PCR petition" and that "[i]t is entirely possible . . . that
[d]efendant did not file his PCR petition within five years of the initiation of the
deportation proceedings against him."
The court further stated, relying on State v. Norman, 405 N.J. Super 149,
159 (App. Div. 2009), that defendant's explanation of excusable neglect was
"wholly unsupported by evidence, vague, and barely even the 'plausible
explanation for a failure to file a timely PCR petition' that courts explicitly warn
against." The court also reasoned that in the twenty-six years between his
convictions and filing the PCR petition, defendant "[c]learly . . . had ample
opportunity to learn of his immigration consequences." The court noted that
"[t]his extensive and unjustified delay serve[d] to heighten [d]efendant's burden
of demonstrating a fundamental injustice."
The court also held that defendant "ha[d] not shown that [his trial
attorney's] purported errors 'played a role in the determination of guilt,' and so
[defendant] [could not] establish that that a miscarriage of justice took place. "
In this regard, the court noted that defendant "never claimed that he [was]
innocent of the charges" and thus, "[defendant's] knowledge of the risk of
A-0222-18T1 6 deportation did not . . . affect the truth-telling function of the [c]ourt when it
accepted his plea."
Furthermore, the court reasoned that defendant "ha[d] not met the first
prong of [the Strickland 1 test]." The court explained that because defendant's
convictions "predated the Supreme Court's seminal 2010 opinion in Padilla2 . . .
concerning deportation consequences to a criminal defendant," defendant's
claims were governed by pre-Padilla standards where "a defendant seeking relief
based upon post-conviction deportation consequences [could] only prevail if he
demonstrate[d] that his prior counsel affirmatively provided him with
misleading advice about such consequences flowing from a guilty plea." The
court concluded defendant failed to establish his counsel made such an
affirmative misrepresentation. Finally, the court ruled that defendant did not
establish the prejudice prong of the Strickland test.
1 To establish ineffective assistance of counsel, a convicted defendant must satisfy the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984), by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense.. The Strickland test has been adopted in New Jersey. See State v. Fritz, 105 N.J. 42, 58 (1987). 2 Padilla v. Kentucky, 559 U.S. 356 (2010) (finding ineffective assistance of counsel in failure to advise defendant before guilty plea about risk of deportation). A-0222-18T1 7 In its June 28, 2018 written opinion addressing defendant's 2001
convictions, the court similarly concluded that defendant's petition was time-
barred by Rule 3:22-12(a)(1)(A). It noted that defendant's certification "[made]
no attempt to demonstrate excusable neglect for failing to file a PCR petition
within five years of his conviction" as defendant "fail[ed] to specify when the
asylum claim was filed, when it was denied, when removal proceedings were
initiated against him, or how long after he filed for asylum he filed the present
petition." Furthermore, the court explained that defendant admitted he was
arrested in 2012 and was held for deportation proceedings which "suggest[ed]
that he knew about the risk of deportation at least as early as 2012."
The court also reasoned that defendant's plea form signed on February 9,
2001, was conclusive proof that he was aware of the risk of deportation well
before filing his PCR petition in 2017 because defendant answered "yes" to
question seventeen, which asked, "[d]o you understand that if you are not a
United State[s] citizen or national, you may be deported by virtue of your plea
of guilty?" The court observed that defendant had sixteen years "free from [his
trial attorney's] influence," but "made no effort to investigate his potential
immigration consequences during that time." Thus, the court rejected
A-0222-18T1 8 defendant's claim he established excusable neglect because "'[i]gnorance of the
law and rules of court does not qualify as excusable neglect.'"
The court also held that defendant failed to make a prima facie showing
of ineffective assistance of counsel that would entitle him to either PCR or an
evidentiary hearing. As to the first Strickland prong, the court re-iterated that
defendant's trial attorney's duty before Padilla was decided "was not to
affirmatively advise [d]efendant of the immigration consequences of his plea
[but] it was only to not materially misadvise [d]efendant."
The court reasoned it was "impossible to find . . . that [defendant's trial
attorney] materially misadvised [d]efendant as to his immigration
consequences," and thus, the court could not find that his trial attorney "made
errors 'so serious that counsel was not functioning as "counsel" guaranteed by
the Sixth Amendment.'" The court concluded that "[b]ecause [d]efendant does
not even claim that [his trial attorney] gave him material misadvice, there [was]
also no material issue of fact that would require an evidentiary hearing to
resolve."
The court also rejected defendant's contention that his trial attorney should
have investigated and raised the affirmative claim of self-defense. The court
held that defendant's claim failed to satisfy the first prong of Strickland because
A-0222-18T1 9 he "provide[d] no information about what [his trial attorney] would have
supposedly uncovered with a more thorough investigation."
In addition, the court held that defendant failed to meet his burden under
the second Strickland prong because he could not prove that he "'would have not
pled guilty and would have insisted on going to trial' if he had known he might
be deported." According to the court, defendant "received the benefit of the
bargain through pleading guilty" because, "[he] was advantaged by having [three
counts] . . . dismissed, and having his sentence run concurrently to a federal
sentence he was already serving."
The court also noted that defendant's argument "that but for [his trial
attorney's] purported errors, he would have proceeded to trial on the theory of
self-defense . . . neglect[ed] to account for the [fact that] . . . it would confirm
that [d]efendant was indeed the person who struck the victims." That fact
combined with "the copious amounts of evidence in the possession of the State
[including] three eyewitnesses, the weapon, medical records, and an explanation
for [d]efendant's motive" meant that defendant "was facing a real prospect that
he would be convicted of and sentenced to up to twenty-five years in prison."
The court explained that defendant "shed no light on the real possibility
that he was already facing deportation as a consequence of his federal
A-0222-18T1 10 conviction." The court stated that defendant did not "clarify whether he was
removable for this offense, nor [did] he submit any paperwork related to his
immigration claim at all" which is "his burden in demonstrating ineffective
assistance." Finally, the court held that defendant failed to satisfy the four-factor
"manifest injustice" standard under Slater3 to allow for withdrawal of his guilty
plea pursuant to Rule 3:21-1. These appeals followed.
With respect to the court's denial of defendant's PCR petition related to
his 1991 convictions, defendant argues the following points under the appeal
bearing docket no. A-0222-18:
POINT ONE
THE COURT BELOW ERRED IN FINDING THAT DEFENDANT'S PCR PETITION WAS TIME- BARRED BECAUSE DEFENDANT FILED HIS PCR PETITION WHEN HE DISCOVERED THE FACTUAL PREDICATE FOR HIS PCR PETITION. SEE [R.] 3:22-12(a)(2)(B).
POINT TWO
THIS COURT SHOULD REMAND THE MATTER FOR AN EVIDENTIARY HEARING DUE TO THE
3 State v. Slater, 198 N.J. 145, 157-58 (2009) (holding "trial judges are to consider and balance four factors in evaluating motions to withdraw a guilty plea: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused"). A-0222-18T1 11 PCR COURT'S INCORRECT FACTUAL FINDINGS REGARDING THE SPECIFIC ASSERTIONS MADE BY DEFENDANT IN HIS PETITIONS.
As to the court's denial of his PCR petition related to his 2001 convictions,
defendant raises the following points for our consideration under the appeal
bearing docket no. A-0226-18:
THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT'S PCR PETITION WAS TIME- BARRED BECAUSE DEFENDANT FILED HIS PCR PETITION WHEN HE DISCOVERED THE FACTUAL PREDICATE FOR HIS PCR PETITION. SEE [R.] 3:22-12(a)(2)(B).
THE PCR COURT ERRED IN DENYING THE PCR PETITION WITHOUT AN EVIDENTIARY HEARING BECAUSE DEFENSE COUNSEL DID NOT INFORM DEFENDANT OF THE IMMIGRATION CONSEQUENCES AND ADVISED HIM TO ACCEPT A GUILTY PLEA RATHER THAN PURSUE SELF-DEFENSE AT TRIAL.
POINT THREE
THE PCR COURT IMPROPERLY APPLIED STATE v. SLATER, 198 N.J. 145 (2009), TO THIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL. SEE STATE v. O'DONNELL, 435 N.J. SUPER. 351 (App. Div. 2014).
A-0222-18T1 12 We affirm substantially for the reasons expressed by the court in its June
13, 2018 and June 28, 2018 written opinions. We add the following additional
comments.
II.
To prove ineffective assistance of plea counsel, a defendant must show
that counsel's performance was deficient and but for counsel's errors, there is a
reasonable probability that defendant would not have pled guilty. Strickland,
466 U.S. at 687, 694; State v. DiFrisco, 137 N.J. 434, 457 (1994). The court
must consider the facts in the light most favorable to the defendant to determine
if a defendant has established a prima facie claim. State v. Preciose, 129 N.J.
451, 462-63 (1992).
A first petition for PCR must be filed within five years of the date of the
judgment of conviction. R. 3:22-12(a)(1). A late filing may be considered if
the petition itself shows excusable neglect for the late filing and that a
fundamental injustice will result if defendant's claims are not considered on their
merits. State v. Brewster, 429 N.J. Super. 387, 400 (App. Div. 2013); R. 3:22-
12(a)(1)(A). In addition, Rule 3:22-12(a)(2)(B) allows for a petition to be filed
within one year of the "date on which the factual predicate for the relief sought
A-0222-18T1 13 was discovered, if that factual predicate could not have been discovered earlier
through the exercise of reasonable diligence."4
In determining 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. McQuaid, 147 N.J. 464, 485 (1997)
(quoting State v. Mitchell, 126 N.J. 565, 580 (1992)). Absent compelling
extenuating circumstances, the burden to justify filing a petition after the five -
year period will increase with the extent of the delay. State v. Afanador, 151
N.J. 41, 52 (1997). "Where the deficient representation of counsel affected 'a
determination of guilt or otherwise wrought a miscarriage of justice, ' a
procedural rule otherwise barring post-conviction relief may be overlooked to
4 Although subsection (a)(2) of Rule 3:22-12 specifically refers to a "second or subsequent petition," we held in Brewster, 429 N.J. Super. at 399 n.4, that the "one-year supplemental period should apply as well to a first petition filed beyond the five-year limitation period of subsection (a)(1)" as it "would be anomalous if it deemed timely a second or third PCR petition based on a new constitutional right or a factual predicate newly-discovered but did not afford the same time period for a first PCR petition raising the same ground for relief." The Brewster court noted, however, that "[t]o determine whether the one-year supplemental period applies to a particular PCR petition, the trial court would have to make a threshold finding that the petition shows violation of a "constitutional right . . . newly recognized" or a new "factual predicate" that could not have been discovered earlier through the exercise of reasonable diligence." Ibid. A-0222-18T1 14 avoid a fundamental injustice." Brewster, 429 N.J. Super. at 400 (quoting
Mitchell, 126 N.J. at 587).
III.
We first address defendant's arguments, raised in point one of both
appeals, that the court committed error because it failed to apply correctly Rule
3:22-12(a)(2)(B) with respect to his 1991 and 2001 convictions and concluded
his petitions were time-barred. We disagree because defendant's arguments are
both procedurally and substantively without merit.
Procedurally, defendant failed to allege in the trial court that he filed his
petition within one year of discovering the factual predicate for relief, as
prescribed in Rule 3:22-12(a)(2)(B). Instead, he maintained only that he
complied with Rule 3:22-12(a)(1)(A). We generally decline to consider
questions or issues not first presented in the trial court when an opportunity for
such a presentation is available, unless the issues raised on appeal concern
jurisdiction or matters of great public interest. State v. Robinson, 200 N.J. 1, 20
(2009) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234, 300 (1973)).
Defendant's contentions do not satisfy either of the Nieder exceptions. Although
we could reject defendant's reliance on Rule 3:22-12(a)(2)(B) on that basis
A-0222-18T1 15 alone, we nevertheless address defendant's claims under both sections of Rule
3:22-12, and determine they are substantively without merit.
We agree with the court that defendant's PCR petitions related to his 1991
and 2001 convictions were untimely and defendant failed to establish that those
belated filings should be excused.5 We initially note that before the court,
defendant provided different explanations to establish excusable neglect and
justify his belated filings. Defendant certified with respect to his 1991
convictions he learned of the facts necessary to file his PCR petition when he
was arrested and incarcerated by ICE. In neither his certification nor his PCR
brief did defendant indicate specifically when he was arrested by ICE or when
he learned of those rights. In his brief supporting his PCR petition for the 2001
convictions, however, he admitted that "[h]e was arrested in 2012 on warrants
and finished his [New Jersey State Prison] time and was held for deportation
proceedings [and] [h]e was released on ICE federal bail in 2016." He also
5 With respect to his 1991 convictions, defendant does not argue on appeal that he complied with Rule 3:22-12(a)(1), or that his belated filing should be excused under Rule 3:22-12(a)(1)(A). "[A]n issue not briefed is deemed waived." Pressler and Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2019); Telebright Corp. v. Dir., N.J. Div. of Taxation, 424 N.J. Super. 384, 393 (App. Div. 2012). For purposes of completeness, we have nevertheless considered the merits of whether defendant's petition satisfied that Rule and agree with the court's conclusions in its June 13, 2018 written opinion that the petition is time- barred and defendant failed to establish excusable neglect. A-0222-18T1 16 alleged that he filed his petitions shortly after his asylum claim was denied in
2017.
Further, when he pled guilty in 2001, defendant answered "yes" to the
question that asked, "[d]o you understand that if you are not a United State[s]
citizen or national, you may be deported by virtue of your plea of guilty? "
Defendant further told the court during the plea hearing that he had sufficient
time to address the questions with his attorney, that he would have given the
same answers to each of the questions if he were asked in open court under oath,
and that his attorney satisfactorily explained and answered all of his questions.
Thus, defendant's contention that he complied with either Rule 3:22-12(a)(2)(B)
or Rule 3:22-12(a)(1)(A) is unsupported by the record, as he clearly knew about
the risk of deportation well before 2017.
We likewise concur with the court that there was no excusable neglect for
defendant's failure to file a timely claim and therefore no injustice would result
in not relaxing the five-year time bar under Rule 3:22–12(a)(1)(A). With respect
to defendant's claims of excusable neglect, we considered and rejected a similar
argument in Brewster. In that case, we rejected defendant's argument that plea
counsel's inaccurate deportation advice constituted excusable neglect. We held
that imparting allegedly deficient immigration advice does not equate with
A-0222-18T1 17 excusable neglect because, if it did, "long-convicted defendants might routinely
claim they did not learn about the deficiencies in counsel's advice on a variety
of topics until after the five-year limitation period had run." Brewster, 429 N.J.
Super. at 400. Thus, defendant's argument on appeal that "the cause of [his]
delay was not knowing about the dire immigration consequences . . . due to his
attorney's advice" does not justify a finding of excusable neglect under Rule
3:22-12(a)(1).
In rejecting defendant's claims of excusable neglect, we also consider the
prejudice to the State caused by the significant passage of time and incomplete
record caused by defendant's grossly belated filing. For example, the plea and
sentencing related to the 1991 convictions took place over twenty-six years ago,
and defendant now states that "[t]he [1990] plea and [1991] sentencing hearing
transcripts were destroyed pursuant to a records retention schedule" and that
"[t]he plea forms and Indictment No. 90-10-4782 are missing from the file."
Thus, the State would be unfairly prejudiced in having to re-litigate this case as
"memories have dimmed . . . and evidence is lost or unattainable." Mitchell,
126 N.J. at 575.
IV.
A-0222-18T1 18 We also reject defendant's claims raised in point two of both appeals that
his plea counsel was constitutionally ineffective because he failed to give
defendant accurate advice about the immigration consequences of his guilty
plea.6 Because defendant's convictions predated the Supreme Court's opinion in
Padilla, his claims are governed by the standards of State v. Nunez-Valdez, 200
N.J. 129, 143-44 (2009). As noted, under those pre-Padilla standards, a
defendant seeking relief based upon post-conviction deportation consequences
can only prevail upon a demonstration that counsel affirmatively provided
misleading advice about such consequences flowing from a guilty plea. Id. at
139-43; see also State v. Santos, 210 N.J. 129, 143 (2012).
Accordingly, defendant's counsel's representation would be deemed
constitutionally ineffective only if he affirmatively misinformed defendant
about the immigration consequences of pleading guilty. State v. Gaitan, 209
N.J. 339, 375 (2012). At no point in either his petitions or certifications does
defendant explicitly state that his counsel affirmatively misinformed him of the
immigration consequences of his pleas.
6 We acknowledge that with respect to defendant's petition related to his 1991 convictions, the court incorrectly stated that defendant alleged his trial counsel advised him to consult with an immigration attorney. Based on our review of the record, that error by the court was harmless and does not affect our conclusion that defendant's petition was substantively meritless. A-0222-18T1 19 Indeed, defendant submitted no evidence that his plea counsel, "assure[d]
defendant that he would not be deported . . . [and d]efendant has not shown . . .
[that he received any] advice [that] deviated from the 'prevailing professional
norms' . . . for a criminal defense attorney." Brewster, 429 N.J. Super. at 396
(quoting Padilla, 559 U.S. at 366-67). Also, defendant has not alleged that he
did not understand the plea forms or failed to review them with plea counsel.
Cf. State v. Antuna, 446 N.J. Super. 595, 602-03 (App. Div. 2016) (finding
ineffective assistance even though plea counsel did not misadvise about
immigration consequences because defendant did not understand English and
counsel "fail[ed] to have defendant review every question on the plea form").7
7 As noted, in the certification related to his 1991 convictions, defendant also maintained that neither the court nor his plea counsel advised him that "[he] had the ability to file a direct appeal of [his] conviction or that [he] could file a petition for [PCR] and that if [he] did not file within [five] years of [his] conviction that [he] could lose [his] ability to do that." Defendant does not argue on appeal that the aforementioned purported failures by plea counsel support a claim for ineffective assistance of counsel. We, accordingly, consider any such argument waived. Woodlands Cmty. Ass'n v. Mitchell, 450 N.J. Super. 310, 318-19 (App. Div. 2017); see also Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2019). In any event, defendant's claims are without merit. First, defendant has not identified with the necessary specificity, see R. 3:22-8, what meritorious arguments he could have raised on direct appeal. See Roe v. Flores-Ortega, 528 U.S. 470, 471-72 (2000) (finding that the presence of "nonfrivolous grounds for appeal" is "highly relevant" in determining whether the defendant was prejudiced under Strickland). Nor has defendant certified specifically why any such claim of ineffectiveness could not have been filed (continued) A-0222-18T1 20 Moreover, under the circumstances, there is no evidence that had
defendant been provided additional information about the possibility of being
deported, it would have been rational for him to forego the plea offers and face
trial and the risk of an increased sentence. See Lee v. United States, ___ U.S.
___, 137 S.Ct. 1958, 1967 (2017) (holding "[c]ourts should not upset a plea
solely because of post hoc assertions from a defendant about how he would have
pleaded but for his attorney's deficiencies" and "[j]udges should instead look to
contemporaneous evidence to substantiate a defendant's expressed
preferences"); Strickland, 466 U.S. at 687, 694; State v. DiFrisco, 137 N.J. at
457.
Here, with respect to the 1991 plea, defendant was facing seventeen counts
including numerous drug charges, a weapons charge, burglary, aggravated
assault, resisting arrest, and obstruction, but pled guilty to only four charges
with the State agreeing to dismiss the remaining counts. As to his 2001 plea,
according to the court, defendant was facing "up to twenty-five years in prison"
for six counts including aggravated assault, resisting arrest, and a weapons
charge.
within the time periods prescribed in Rule 3:22-12(a)(1) or Rule 3:22- 12(a)(2)(B), or why those periods should be relaxed for those specific claims. A-0222-18T1 21 V.
We also reject defendant's argument in point two of his appeal related to
the 2001 convictions that his counsel provided ineffective assistance because he
advised defendant to accept a guilty plea rather than pursue the affirmative claim
of self-defense at trial. That claim is time-barred and substantively without
merit.
First, defendant's claim is clearly time barred. Defendant was a
participant in the altercation that led to his claimed injuries and attested in his
petition that he made counsel aware of that potential defense, yet failed to raise
any claims regarding his counsel's ineffectiveness until over a decade after his
convictions. Defendant clearly failed to satisfy the requirement of either Rule
3:22-12(a)(1) or Rule 3:22-12(a)(2)(B), or establish a basis to relax those time
deadlines.
Moreover, defendant's claims are bald assertions and are insufficient to
establish a claim of ineffective assistance of counsel under Strickland, in any
event. See State v. Cummings, 321 N.J. Super. 154, 169-71 (App. Div. 1999).
Finally, as the court correctly concluded, any claim of self-defense and
innocence is contradicted by both his plea form and colloquy during the plea
A-0222-18T1 22 hearing wherein defendant admitted his guilt, and specifically that he intended
to cause serious bodily injury to the victim with a knife.
VI.
Finally, we reject defendant's claim in point three of his brief related to
his 2001 convictions that the court improperly applied the four-factor "manifest
injustice" standard for withdrawing pleas under Slater to his ineffective
assistance claim, as it is clear that the court properly analyzed defendant's PCR
claims under the Strickland test. The court also reviewed defendant's claims
related to his 2001 convictions under Slater because defendant's petition
specifically claimed that "his plea was not informed and thus he should be
allowed to withdraw his plea."
VII.
In sum, we conclude defendant's PCR claims are time-barred and
substantively without merit. Consequently, defendant was not entitled to an
evidentiary hearing. To the extent we have not specifically addressed any of
defendant's remaining arguments, it is because we find insufficient merit in these
arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-0222-18T1 23