                        NOT FOR PUBLICATION WITHOUT THE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-3327-16T4
STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

CARLOS FLAMES,

        Defendant-Appellant.

_____________________________________

              Submitted May 2, 2018 – Decided July 12, 2018

              Before Judges Fuentes and Koblitz.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Indictment No.
              10-06-1108.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Jack L. Weinberg, Designated
              Counsel, on the brief).

              Dennis Calo, Acting Bergen County Prosecutor,
              attorney for respondent (Ian C. Kennedy,
              Special   Deputy    Attorney   General/Acting
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

        Defendant Carlos Flames appeals from the order of the Criminal

Part denying his post-conviction relief (PCR) petition. We affirm.
    On October 12, 2010, defendant entered into a negotiated

agreement with the State through which he pled guilty to third

degree distribution of marijuana, in a quantity of one ounce or

more, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11).    At the

plea hearing, the judge asked defendant the following questions:

         Q. All right, Mr. Flames, are you a U.S.
         citizens?

         A. Yes, ma'am.

         Q. Those plea forms that you have before
         [you], there are some initials at the bottom.
         Who wrote those initials?

         A. I did, ma'am.

         Q. What about the last page? There's two pages
         with signatures on them. Whose signatures are
         those?

         A. That's my signature, ma'am.

         Q. Did you sign these plea forms and initial
         them after going through each and every
         question with your attorney?

         A. Yes, Your Honor.

         Q. Do you have any questions you want to ask
         him?

         A. No, Your Honor.

         Q. Are you satisfied with his services?

         A. Yes, Your Honor.

    The standard Plea Form referred to by the judge in the plea

hearing contained a total of twenty-five questions.   Question 17a

                               2                            A-3327-16T4
asked defendant: "Are you a citizen of the United States?"        The

Form provided a two-option response: "[Yes]" or "[No]." Defendant

circled "[Yes]."       At the plea hearing, defendant provided a

factual basis for his guilty plea in which he admitted that on

January 5, 2010, he sold an ounce or more of marijuana to an

undercover detective.

     On January 7, 2011, defendant appeared before a different

judge for sentencing.    The Adult Presentence Investigation Report

prepared by the vicinage's Probation Department pursuant to Rule

3:21-2(a), identified defendant's place of birth as North Bergen,

New Jersey.     At the sentencing hearing, the judge asked defense

counsel: "All right.     So, any changes in the presentence report

there, counsel?"    Defense counsel responded: "No, Your Honor.   The

presentence report has been reviewed by myself and my client and

is accurate."    The judge sentenced defendant to a three-year term

of probation.    The judge signed the Judgment of Conviction (JOC)

on January 11, 2011.    Defendant did not appeal.

     On January 25, 2013, defendant appeared before another judge

in response to the charge of violating the terms of probation by

failing to report to his probation officer and being charged and

arrested for a new indictable offense.       The judge found, by a

preponderance of the evidence, that defendant had violated the



                                  3                         A-3327-16T4
terms of his probation. The judge terminated defendant's probation

as "unimproved."

     On January 16, 2016, defendant filed a pro se PCR petition

alleging ineffective assistance of trial counsel based on the

following facts:

            Counsel misinformed me about the consequences
            of my plea agreement pertaining to the effect
            of immigration policies on my alien status. I
            was cajoled into accepting a plea agreement
            without being informed of the pros and cons
            of trial.   Counsel failed to investigate my
            case and did not go over my discovery or
            explain my legal options fully.        Counsel
            failed to file pre-trial motions. Excusable
            Neglect: Petitioner is filing the petition
            five (5) years beyond the time prescribed by
            this rule.

     By order dated February 3, 2016, the Criminal Part assigned

counsel to represent defendant in the presentation of the PCR

petition.   PCR counsel filed a brief and submitted a certification

from defendant in which he again alleged his trial attorney had

been ineffective by failing to apprise him of the immigration

consequences of his guilty plea.      In this undated certification,

defendant stated that he had a "pending case in Elizabeth wherein

the State of New Jersey is seeking to deport me."

     On March 8, 2017, defendant's PCR petition came for oral

argument before Judge Christopher R. Kazlau.      After considering

the arguments of counsel, Judge Kazlau found defendant's petition


                                  4                          A-3327-16T4
was   procedurally     barred   as   untimely   under   Rule   3:22-12(a)(1)

because: (1) it was filed on January 16, 2016, more than 5 years

after the trial court entered the JOC on January 11, 2011; and (2)

defendant did not provide any grounds for relaxing the five-year

restriction.    Independent of this procedural bar, Judge Kazlau

also found defendant's claim of ineffective assistance of trial

counsel based on his immigration status was without merit because

the   record   shows     defendant    consistently      misrepresented    his

immigration status to the court at both the plea and sentencing

hearings.

      Defendant now appeals raising the following arguments.

            POINT I
            THE MOTION COURT ERRED IN DENYING THE
            DEFENDANT'S   PETITION  FOR   POST-CONVICTION
            RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
            HEARING.   THE DEFENDANT ESTABLISHED A PRIMA
            FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL
            COUNSEL. THE FILING OF THE PETITION FIVE DAYS
            OUT OF TIME SHOULD NOT BAR THE DEFENDANT
            CONSIDERATION OF HIS PETITION ON THE MERITS.

                A. The Defendant was Entitled to an
                Evidentiary Hearing.

                B. The Petition Should Not Be Time-
                Barred by R. 3:22-12.

            POINT II
            THE COURT ERRED WHEN IT DENIED THE DEFENDANT
            AN EVIDENTIARY HEARING ON THE CLAIM THAT THE
            DEFENDANT'S PLEA WAS NOT KNOWINGLY AND
            VOLUNTARILY ENTERED. ENFORCEMENT OF THE PLEA
            IS FUNDAMENTALLY UNFAIR.   (Partially raised
            below)

                                       5                             A-3327-16T4
     We reject these arguments and affirm substantially for the

reasons expressed by Judge Kazlau in his oral opinion delivered

from the bench on March 8, 2017.       We review a claim of ineffective

assistance of counsel under the two-prong test established by the

United States Supreme Court in Strickland v. Washington, 466 U.S.

668 (1984), and subsequently adopted by our Supreme Court in State

v. Fritz, 105 N.J. 42 (1987).      First, defendant must demonstrate

that defense counsel's performance was deficient.      Strickland, 466

U.S. at 687. Second, he must show there exists "a reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different."       Id. at 694.

"[T]o set aside a guilty plea based on ineffective assistance of

counsel, a defendant must show that (i) counsel's assistance was

not 'within the range of competence demanded of attorneys in

criminal cases'; and (ii) 'that there is a reasonable probability

that, but for counsel's errors, [the defendant] would not have

pled guilty and would have insisted on going to trial."       State v.

Nunez-Valdez, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco,

137 N.J. 434, 457 (1994))

     The record shows defendant intentionally and unequivocally

misrepresented his immigration status to the trial court as well

as the probation officer who prepared the presentence report.        The

certification defendant submitted in support of his PCR petition

                                   6                            A-3327-16T4
does     not    provide    any   explanation   for   this    material

misrepresentation of his immigration status.     Defendant cannot now

claim he received ineffective legal representation based on his

failure to disclose his immigration stats to both his attorney and

the court.      With respect to the timeliness of defendant's PCR

petition, the record shows defendant "signed" the pro se petition

on Saturday, January 16, 2016.

       Rule 1:3-1 provides, in pertinent part:

           In computing any period of time fixed by rule
           or court order, the day of the act or event
           from which the designated period begins to run
           is not to be included. The last day of the
           period so computed is to be included, unless
           it is a Saturday, Sunday or legal holiday, in
           which event the period runs until the end of
           the next day which is neither a Saturday,
           Sunday nor legal holiday.

           [Ibid. (emphasis added).]

The appellate record does not include a "filed" stamped copy of

the petition.      Assuming the petition was received by the court on

Monday, January 18, 2016, the petition was filed five years and

seven days after the court signed the JOC on January 11, 2011,

rendering it untimely under Rule 3:22-12(a)(1).        We also agree

with Judge Kazlau that defendant did not present any grounds to

relax the time restrictions under the Rule.

       Affirmed.



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