                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-4322-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CHRISTIAN SOLORZANO,

     Defendant-Appellant.
__________________________

                   Submitted April 21, 2020 – Decided June 12, 2020

                   Before Judges Yannotti and Currier.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Atlantic County, Indictment No. 07-02-0406.

                   Edward Crisonino, attorney for appellant.

                   Damon G. Tyner, Atlantic County Prosecutor, attorney
                   for respondent (Nicole Lynn Campellone, Assistant
                   Prosecutor, on the brief).

PER CURIAM

          Defendant Christian Solorzano appeals from the May 9, 2019 denial of his

petition for post-conviction relief (PCR) without an evidentiary hearing.
Defendant argues the PCR court erred by finding the petition was untimely under

Rule 3:22-12 and that he was not entitled to an evidentiary hearing. We affirm.

      Defendant was born in Peru and came to the United States with his parents

when he was fifteen years old. He attended high school and completed some

college courses in the United States. At the time of oral argument on defendant's

petition, he was married, employed, and had two children who were United

States citizens.

      In April 2007, an Atlantic County grand jury indicted defendant with four

counts of third-degree invasion of privacy in violation of N.J.S.A. 2C:14-9(b);

four counts of fourth-degree endangering the welfare of a child in violation of

N.J.S.A. 2C:24-4(b); and third-degree attempt in violation of N.J.S.A. 2C:5-1

and N.J.S.A. 2C:14-9. The charges arose from incidents that took place in

March and November 2006. At the time, defendant was living with his girlfriend

and her thirteen-year-old daughter. On those dates, he hid a camera in the girl's

bathroom so he could observe her undressed.

      On December 3, 2007, defendant pled guilty to two counts of third-degree

invasion of privacy and two amended charges of fourth-degree abuse of a child

in violation of N.J.S.A. 9:6-3. At the time of the plea hearing, defendant was

thirty-two years old. He used the services of a translator during the hearing.


                                                                         A-4322-18T1
                                       2
      While under oath, represented by counsel, defendant acknowledged he

understood his rights, was pleading guilty voluntarily and without any threats,

coercion or pressure, and had truthfully answered all of the questions on the plea

form. Question seventeen asked whether defendant understood that by pleading

guilty, he "may be deported by virtue of [his] plea of guilty" if "[he was] not a

United States citizen or national . . . ." Defendant circled "yes."

      Defendant was sentenced in March 2008 to five years of probation,

conditioned on serving 270 days in jail, which could be served by day reporting.

He did not appeal and successfully completed probation.

      Ten years later, in June 2018, defendant was arrested by the United States

Immigration and Customs Enforcement (ICE) and faced removal proceedings as

a result of the 2008 convictions. He was released on bail pending the outcome

of his PCR application.

      In September 2018, defendant filed a counseled PCR petition.              He

challenged his plea and sentence, stating in a certification that he "was not told

of the immigration consequences of [the] plea," and he had not agreed to the

amended charges for fourth-degree abuse of a child.

      Defendant further stated he "believed [his] attorney when he told me I

would not be deported as a result of these pleas." He certified he had no reason


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                                        3
to know the advice was wrong until he was arrested ten years later by ICE.

Defendant further alleged he would not have accepted the plea agreement had

he known it would subject him to deportation. He stated that upon his arrest and

discovery of the "true immigration consequences" of his plea, he hired counsel

and filed the petition for PCR.

      After oral argument, the PCR court entered an order and issued a written

decision on May 9, 2019 denying the petition. The court found the petition was

untimely because it was filed more than ten years after the entry of the judgment

of conviction, "well over" the five-year time limit established in Rule 3:22-12.

      The court rejected defendant's argument that he had demonstrated

excusable neglect to relax the time restriction, citing to State v. Cummings, 321

N.J. Super. 154, 165 (App. Div. 1999), for the proposition that a lack of legal

knowledge is not adequate to show excusable neglect. The court also relied on

State v. Brown, 455 N.J. Super. 460 (App. Div. 2018), and State v. Brewster,

429 N.J. Super. 387 (App. Div. 2013), to support its determination that

defendant had not demonstrated excusable neglect.

      The PCR court stated:

            Here, while the judge both at the plea and at the
            sentencing did not mention any immigration
            consequences, the judge did confirm with [defendant]
            that he had discussed the questions and answers from

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                                       4
            the plea form with his attorney. This plea form
            contained the same [q]uestion [seventeen] as that
            considered in Brewster. [Defendant] acknowledged he
            had reviewed the plea form and that he understood each
            question and answered them truthfully.

      The PCR court also held defendant was not entitled to an evidentiary

hearing because he did not satisfy the Strickland-Fritz1 test for an ineffective

assistance of counsel claim. The court reasoned there was "no evidence to

support [defendant's] claim that [plea counsel] provided false or misleading

information before he agreed to plead guilty." The court stated further that

defendant's "allegation amounts to a bald assertion, failing to reach the threshold

necessary to merit an evidentiary hearing. While [defendant] alleges that [plea

counsel] told him his plea would not at all affect his immigration status,

[defendant] provides no evidence to support this allegation."

      On appeal, defendant raises the following points for our consideration:

            I. THE TIME-BAR IN [RULE] 3:22-12 SHOULD BE
            RELAXED BECAUSE THE DELAY IN THIS CASE
            WAS NOT DUE TO ANY LACK OF EFFORT ON
            THE PART OF THE APPELLANT AND
            ENFORCEMENT OF THE TIME-BAR WOULD
            RESULT IN A FUNDAMENTAL INJUSTICE

            II. THE COURT SHOULD HAVE HELD AN
            EVIDENTIARY HEARING AS APPELLANT HAS

1
  Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J.
42, 58 (1987).
                                                                           A-4322-18T1
                                        5
              MADE A PRIME FACIE CASE FOR INEFFECTIVE
              ASSISTANCE OF COUNSEL

      The standard for determining whether trial counsel's performance was

ineffective for purposes of the Sixth Amendment was formulated in Strickland,

466 U.S. at 687, and adopted by the New Jersey Supreme Court in Fritz, 105

N.J. at 58.

      In order to prevail on a claim of ineffective assistance of counsel,

defendant must meet the two-prong test establishing both that: 1) counsel's

performance was deficient and he or she made errors that were so egregious that

counsel was not functioning effectively as guaranteed by the Sixth Amendment

to the United States Constitution; and 2) the defect in performance prejudiced

defendant's rights to a fair trial such that there exists a "reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would

have been different. " Strickland, 466 U.S. at 687, 694.

      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. 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

                                                                           A-4322-18T1
                                        6
for the relief sought was discovered, if that factual predicate could not have been

discovered earlier through the exercise of reasonable diligence . . . ."

      To establish "excusable neglect," a defendant must demonstrate "more

than simply . . . a plausible explanation for a failure to file a timely PCR

petition." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). Factors

to be considered include "the extent and 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.

Afanador, 151 N.J. 41, 52 (1997) (citation omitted).

      "Absent compelling, extenuating circumstances, the burden to justify

filing a petition after the five-year period will increase with the extent of the

delay."     Ibid.   "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

avoid a fundamental injustice." Brewster, 429 N.J. Super. at 400 (citation

omitted).

      In first addressing the procedural issue of timeliness, we are satisfied

defendant demonstrated excusable neglect as required for a late filing under

Rule 3:22-12(a)(1). He asserts the ten-year delay between the March 2008


                                                                           A-4322-18T1
                                        7
judgment of conviction to the filing of his petition was excusable because he

was affirmatively misinformed regarding the immigration consequences of his

plea. He certified he had no reason to suspect he had received the ineffective

assistance of counsel until he was arrested by ICE in June 2018 and learned he

was misinformed of the consequences of his plea. Moreover, he claimed his

green card had been renewed in 2015. 2       Immediately after defendant was

arrested, he retained counsel and filed his PCR petition.

      We disagree, however, with defendant's argument that he was entitled to

an evidentiary hearing. In his supporting certification, defendant gave

conflicting statements and made bald assertions. He stated initially that he "was

not told of the immigration consequences of [his] plea," but later said "[he]

believed [his] attorney when he told [him he] would not be deported as a result

of these pleas." These are contradictory statements. In addition, the record from

the plea hearing made it clear defendant was informed through counsel that his

guilty plea might subject him to deportation consequences.

      As defendant's conviction occurred in March 2008, he was subject to the

Nunez-Valdez standard – allowing a defendant to establish the ineffective


2
   PCR counsel made this representation regarding defendant's immigration
status to the PCR court during oral argument on the petition. The record does
not contain any information as to a green card or its renewal.
                                                                         A-4322-18T1
                                       8
assistance of counsel by proving his guilty plea resulted from "inaccurate

information from counsel concerning the deportation consequences of his plea."

State v. Nunez-Valdez, 200 N.J. 129, 143 (2009). Defendant's conflicting and

unsupported statements have not established what advice, if any, he received

from counsel. Therefore, we are satisfied defendant has not demonstrated a

reasonable likelihood that his claim will succeed on the merits. As he failed to

establish a prima facie case of ineffectiveness of counsel, we discern no error in

the denial of an evidentiary hearing.

      Affirmed.




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