NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1237-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
IAN A. PERSAUD,
Defendant-Appellant. _______________________
Submitted March 17, 2021 – Decided April 20, 2021
Before Judges Alvarez and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 93-06- 0959.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Assistant Prosecutor, of counsel; Daniel J. Burzon, Legal Assistant, on the brief).
PER CURIAM Defendant Ian Persaud appeals from a September 16, 2019 order denying
his petition for post-conviction relief (PCR) without an evidentiary hearing. We
affirm.
We discern the following facts from the record. On March 21, 1993,
defendant, a Guyanese immigrant, was arrested after police found various
controlled dangerous substances (CDS) in his vehicle. On February 2, 1995, a
jury convicted defendant of fourth-degree possession of CDS, N.J.S.A. 2C:35-
10(a)(3); and third-degree possession of CDS with intent to distribute, N.J.S.A.
2C:35-5(b)(11). On March 24, 1995, defendant was sentenced to three years'
probation. Defendant did not appeal his conviction or sentence.
In 1997, defendant was convicted in North Carolina of four drug-related
offenses: possession with the intent to sell and deliver marijuana, manufacturing
marijuana, maintaining a dwelling for the keeping of drugs, and possession of
heroin. In 2002, defendant was convicted in North Carolina of conspiracy to
possess with intent to distribute fifty grams or more of cocaine and cocaine base.
Defendant was then sentenced to life imprisonment pursuant to 21 U.S.C. §§
841, 851. In 2012, defendant filed a writ of habeas corpus arguing that his
mandatory life sentence, based on the finding that he had two prior convictions
for "felony" drug offenses, was contrary to United States v. Simmons, 649 F.3d
A-1237-19 2 237, 247 (4th Cir. 2011) (en banc). Persaud v. United States, Nos. 12-cv-509,
01-cr-36-7, 2019 U.S. Dist. LEXIS 93810, at *3 (W.D.N.C. June 4, 2019). A
judge in the United States District Court for the Western District of North
Carolina agreed, finding that the highest sentence defendant could have received
for the 1997 North Carolina convictions was eight months and, therefore, they
were not "felony" drug offenses for purposes of the sentencing enhancement
statute. Id. at *6-7. In 2019, the judge accordingly vacated defendant's life
sentence and remanded the case for re-sentencing. Id. at *7.
On September 18, 2018, more than twenty years after his 1995 conviction,
defendant filed a pro se petition for PCR. Following oral argument, Judge
Dennis R. O'Brien issued a clear and cogent opinion from the bench denying
defendant's request for an evidentiary hearing as well as his petition for PCR.
He found that defendant failed to demonstrate any basis to excuse the
untimeliness of the application. R. 3:22-12(a)(1)(A). Judge O'Brien also
concluded defendant's claims that his trial counsel was ineffective in failing to
inform him of the immigration consequences of his conviction or potential
sentencing enhancements in the event of future convictions were wholly without
merit.
A-1237-19 3 On appeal, defendant raises the following arguments for our
consideration:
POINT I
[DEFENDANT] IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR MISINFORMING HIM ABOUT THE DEPORTATION AND SENTENCING ENHANCEMENT CONSEQUENCES OF HIS CASE.
POINT II
THE PCR COURT ERRONEOUSLY RULED THAT [DEFENDANT'S] PETITION WAS TIME-BARRED BECAUSE ANY DELAY IN FILING THE PETITION WAS DUE TO DEFENDANT'S EXCUSABLE NEGLECT AND 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.
Where, as here, the PCR judge "did not hold an evidentiary hearing on the
claim defendant now raises on appeal, we 'conduct a de novo review.'" State v.
Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018) (quoting State v. Harris,
181 N.J. 391, 421 (2004)); see also State v. Blake, 444 N.J. Super. 285, 294
(App. Div. 2016). The decision to proceed without an evidentiary hearing is
A-1237-19 4 reviewed for abuse of discretion. State v. Brewster, 429 N.J. Super. 387, 401
(App. Div. 2013) (citing State v. Marshall, 148 N.J. 89, 157-58 (1997)).
To establish a prima facie claim of ineffective assistance of counsel, a
defendant must satisfy the two-pronged test enumerated in Strickland v.
Washington, 466 U.S. 668, 687 (1984), which our Supreme Court adopted in
State v. Fritz, 105 N.J. 42, 58 (1987). To satisfy the first Strickland/Fritz prong,
a defendant must establish that his counsel "made errors so serious that counsel
was not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." Strickland, 466 U.S. at 687. To satisfy the second Strickland/Fritz
prong, a defendant must establish "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine the
outcome." Id. at 694.
Defendant's claims are unquestionably time-barred. Rule 3:22-
12(a)(1)(A) states that a first petition for PCR shall not be filed more than five
years after the judgment of conviction unless the petition "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
A-1237-19 5 injustice." "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. Milne, 178 N.J. 486, 492 (2004) (quoting State v. Afanador,
151 N.J. 41, 52 (1997)). Defendant's sole argument, that he was unaware he
could file a petition for PCR, is unavailing. "Ignorance 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 o.b., 365 N.J. Super. 82 (App. Div. 2003).
Regardless, we also reject defendant's argument that his trial counsel was
ineffective in failing to inform him of the immigration consequences of his
conviction. In 2009, our Supreme Court held that a defendant could show
ineffective assistance of counsel by proving that his or her guilty plea resulted
from "inaccurate information from counsel concerning the deportation
consequences of his plea." State v. Nuñez-Valdéz, 200 N.J. 129, 143 (2009). A
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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-1237-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
IAN A. PERSAUD,
Defendant-Appellant. _______________________
Submitted March 17, 2021 – Decided April 20, 2021
Before Judges Alvarez and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 93-06- 0959.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Assistant Prosecutor, of counsel; Daniel J. Burzon, Legal Assistant, on the brief).
PER CURIAM Defendant Ian Persaud appeals from a September 16, 2019 order denying
his petition for post-conviction relief (PCR) without an evidentiary hearing. We
affirm.
We discern the following facts from the record. On March 21, 1993,
defendant, a Guyanese immigrant, was arrested after police found various
controlled dangerous substances (CDS) in his vehicle. On February 2, 1995, a
jury convicted defendant of fourth-degree possession of CDS, N.J.S.A. 2C:35-
10(a)(3); and third-degree possession of CDS with intent to distribute, N.J.S.A.
2C:35-5(b)(11). On March 24, 1995, defendant was sentenced to three years'
probation. Defendant did not appeal his conviction or sentence.
In 1997, defendant was convicted in North Carolina of four drug-related
offenses: possession with the intent to sell and deliver marijuana, manufacturing
marijuana, maintaining a dwelling for the keeping of drugs, and possession of
heroin. In 2002, defendant was convicted in North Carolina of conspiracy to
possess with intent to distribute fifty grams or more of cocaine and cocaine base.
Defendant was then sentenced to life imprisonment pursuant to 21 U.S.C. §§
841, 851. In 2012, defendant filed a writ of habeas corpus arguing that his
mandatory life sentence, based on the finding that he had two prior convictions
for "felony" drug offenses, was contrary to United States v. Simmons, 649 F.3d
A-1237-19 2 237, 247 (4th Cir. 2011) (en banc). Persaud v. United States, Nos. 12-cv-509,
01-cr-36-7, 2019 U.S. Dist. LEXIS 93810, at *3 (W.D.N.C. June 4, 2019). A
judge in the United States District Court for the Western District of North
Carolina agreed, finding that the highest sentence defendant could have received
for the 1997 North Carolina convictions was eight months and, therefore, they
were not "felony" drug offenses for purposes of the sentencing enhancement
statute. Id. at *6-7. In 2019, the judge accordingly vacated defendant's life
sentence and remanded the case for re-sentencing. Id. at *7.
On September 18, 2018, more than twenty years after his 1995 conviction,
defendant filed a pro se petition for PCR. Following oral argument, Judge
Dennis R. O'Brien issued a clear and cogent opinion from the bench denying
defendant's request for an evidentiary hearing as well as his petition for PCR.
He found that defendant failed to demonstrate any basis to excuse the
untimeliness of the application. R. 3:22-12(a)(1)(A). Judge O'Brien also
concluded defendant's claims that his trial counsel was ineffective in failing to
inform him of the immigration consequences of his conviction or potential
sentencing enhancements in the event of future convictions were wholly without
merit.
A-1237-19 3 On appeal, defendant raises the following arguments for our
consideration:
POINT I
[DEFENDANT] IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR MISINFORMING HIM ABOUT THE DEPORTATION AND SENTENCING ENHANCEMENT CONSEQUENCES OF HIS CASE.
POINT II
THE PCR COURT ERRONEOUSLY RULED THAT [DEFENDANT'S] PETITION WAS TIME-BARRED BECAUSE ANY DELAY IN FILING THE PETITION WAS DUE TO DEFENDANT'S EXCUSABLE NEGLECT AND 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.
Where, as here, the PCR judge "did not hold an evidentiary hearing on the
claim defendant now raises on appeal, we 'conduct a de novo review.'" State v.
Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018) (quoting State v. Harris,
181 N.J. 391, 421 (2004)); see also State v. Blake, 444 N.J. Super. 285, 294
(App. Div. 2016). The decision to proceed without an evidentiary hearing is
A-1237-19 4 reviewed for abuse of discretion. State v. Brewster, 429 N.J. Super. 387, 401
(App. Div. 2013) (citing State v. Marshall, 148 N.J. 89, 157-58 (1997)).
To establish a prima facie claim of ineffective assistance of counsel, a
defendant must satisfy the two-pronged test enumerated in Strickland v.
Washington, 466 U.S. 668, 687 (1984), which our Supreme Court adopted in
State v. Fritz, 105 N.J. 42, 58 (1987). To satisfy the first Strickland/Fritz prong,
a defendant must establish that his counsel "made errors so serious that counsel
was not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." Strickland, 466 U.S. at 687. To satisfy the second Strickland/Fritz
prong, a defendant must establish "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine the
outcome." Id. at 694.
Defendant's claims are unquestionably time-barred. Rule 3:22-
12(a)(1)(A) states that a first petition for PCR shall not be filed more than five
years after the judgment of conviction unless the petition "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
A-1237-19 5 injustice." "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. Milne, 178 N.J. 486, 492 (2004) (quoting State v. Afanador,
151 N.J. 41, 52 (1997)). Defendant's sole argument, that he was unaware he
could file a petition for PCR, is unavailing. "Ignorance 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 o.b., 365 N.J. Super. 82 (App. Div. 2003).
Regardless, we also reject defendant's argument that his trial counsel was
ineffective in failing to inform him of the immigration consequences of his
conviction. In 2009, our Supreme Court held that a defendant could show
ineffective assistance of counsel by proving that his or her guilty plea resulted
from "inaccurate information from counsel concerning the deportation
consequences of his plea." State v. Nuñez-Valdéz, 200 N.J. 129, 143 (2009). A
year later, the United States Supreme Court clarified that counsel's duty is not
limited to avoiding providing "false or misleading information," Nuñez-Valdéz,
200 N.J. at 138, but also includes an affirmative duty to inform a defendant
entering a guilty plea of the relevant law pertaining to mandatory deportation ,
Padilla v. Kentucky, 559 U.S. 356, 368-69 (2010). The United States Supreme
Court, however, held that the rule announced in Padilla imposed a new
A-1237-19 6 obligation and announced a new rule of law. Chaidez v. United States, 568 U.S.
342, 357-58 (2013). Consequently, the holding of Padilla would be applied
prospectively and "defendants whose convictions became final prior to Padilla
therefore cannot benefit from its holding." Id. at 358. Defendant, who was
convicted in 1995, seeks PCR relief based on the allegation his trial counsel did
not inform him of the possibility of deportation. Defendant was not misadvised
or given false information. Under pre-Padilla standards, defendant cannot
satisfy the first Strickland prong.
We also conclude, as did the PCR judge, that trial counsel was not
ineffective due to his alleged failure to advise defendant of the effect of the
subject conviction on his sentencing for future crimes. See State v. Wilkerson,
321 N.J. Super. 219, 227 (App. Div. 1999) (holding there is no constitutional
requirement that a defense attorney must advise a client that if he or she commits
future criminal offenses there may be adverse consequences by way of
enhancement of punishment).
Even viewing defendant's factual assertions in the light most favorable to
him, he has failed to establish a prima facie case sufficient to warrant an
evidentiary hearing. Therefore, the PCR judge did not abuse his discretion in
denying defendant's request. See R. 3:22-10(b).
A-1237-19 7 Affirmed.
A-1237-19 8