                                      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                                NOT FOR PUBLICATION WITHOUT THE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-3140-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CARLOS R. LUGO,

     Defendant-Appellant.
__________________________

                   Submitted April 27, 2020 – Decided May 21, 2020

                   Before Judges Fasciale and Mitterhoff.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Passaic County, Indictment No. 08-08-
                   1148.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Ruth Ann Harrigan, Designated Counsel, on
                   the briefs).

                   Camelia M. Valdes, Passaic County Prosecutor,
                   attorney for respondent (Ali Y. Ozbek, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Carlos R. Lugo appeals from a December 18, 2018 order

denying his petition for post-conviction relief (PCR) without an evidentiary

hearing. We affirm.

      We glean the following facts from the record. In August 2007, police

arrested defendant for the sexual assault of a minor. On August 21, 2008, a

Passaic County grand jury indicted defendant for second-degree sexual assault,

N.J.S.A. 2C:14-2(c)(4) (count one), and for third-degree endangering the

welfare of a child, N.J.S.A. 2C:24-4(a) (count two).

      On April 20, 2009, defendant pleaded guilty to an amended charge of

fourth-degree sexual contact, N.J.S.A. 2C:14-3. In the course of the allocution

at defendant’s plea hearing, defendant testified as to his understanding of the

immigration consequences of his plea. Defendant was asked “[y]ou also know

that this charge could impact on your immigration status?”      He responded

under oath, “Yeah.” Defendant’s trial attorney also confirmed with defendant

on the record that he was not a United States citizen, and he then asked

defendant whether they had discussed “that this could have some impact on

your ability to seek to be a citizen.” Again, defendant responded under oath,

“Yes.”




                                                                      A-3140-18T4
                                      2
      After reiterating that defendant’s plea could negatively affect his

immigration status, the State’s attorney also asked defendant, “Do you

understand that [it] is not up to this [c]ourt here, that [it] is up to the federal

immigration authorities to decide that; do you understand that, sir?”

Defendant again responded under oath, “Yes.”           Further, the judge asked

defendant at the plea hearing, “But you must understand that you could, and I

just emphasize could, not necessarily will, but could be just deported for an

offense like this; do you understand that?”       Defendant replied under oath,

“Yeah.   Yes.”    Additionally, on defendant’s plea form, in response to the

question, “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,” he circled

“Yes.”

      At defendant’s sentencing hearing, the trial judge again questioned

whether defendant was aware that his plea agreement could impact his

citizenship status and lead to his deportation. Under oath, defendant again

responded affirmatively to both queries. Further, the judge stated:

            [I]f this offense is considered . . . an aggravated
            felony, now we're still waiting to get a list from . . .
            the Immigration Custom Enforcement to see what
            aggravated felonies are [so] that . . . defendants know
            what they are when they plead.


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                                       3
             If it's considered an aggravated felony, then you will
             be deported, okay? . . . If it's not, then something else
             may happen, I don't know, all right? I just need you to
             know that. Okay?

No verbal response from defendant to this statement was transcribed in the

record. However, after the judge rendered his sentence, the parties further

discussed the issue of immigration, and the State’s attorney stated,

“Anecdotally, I would say because of Megan’s Law, [defendant] probably will

face deportation.” The judge reaffirmed this on the record.

      Consistent with the terms of the plea agreement, the judge sentenced

defendant to three years’ probation, no victim contact, and registration

pursuant to Megan’s Law, N.J.S.A. 2C:7-1 to -23, but without parole

supervision for life.

      On February 2, 2018, defendant, acting pro se, filed a petition for PCR

based on ineffective assistance of counsel. On February 8, 2018, defendant

was assigned counsel to represent him. Defendant asserted that despite filing

his PCR petition more than five years after the entry of final judgment,

contrary to Rule 3:22-12, his delay constituted excusable neglect because he

filed his petition immediately after discovering that he was subject to

mandatory deportation. Defendant alleged that he was afforded ineffective



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                                       4
assistance of counsel because his trial attorney affirmatively misadvised him

about the immigration consequences of his guilty plea.

      On December 18, 2018, Judge Sohail Mohammed found that defendant

failed to raise a prima facie case of ineffective assistance of counsel, and

entered an order denying his petition without an evidentiary hearing. Judge

Mohammed found that defendant's appeal for PCR was barred by the five-year

statute of limitations imposed by Rule 3:22-12.          The judge found that

defendant filed his PCR petition more than five years after the date final

judgment was entered, and that no exceptional circumstances warranted

relaxation of the Rule.

      Judge Mohammed also found that defendant’s application was otherwise

without merit. The judge emphasized:

            Defendant acknowledged not only that he was not a . .
            . citizen, but also answered in the affirmative when he
            was asked and further acknowledged the reality that
            his immigration status . . . could likely be jeopardized
            if such a plea was entered into . . . nevertheless he
            proceeded. Nothing in the record supports the notion
            that . . . [d]efendant was not on notice as to the
            potential negative immigration consequences that
            were looming after he decided to enter into and accept
            a guilty plea.

Consequently, the judge held that defendant failed to satisfy the first prong of

Strickland v. Washington, 466 U.S. 668, 687 (1984) because defendant’s

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                                      5
attorney “in conjunction with . . . the State and the [c]ourt, all discussed with

and outlined for . . . [d]efendant, on repeated occasions, how taking the instant

plea could encumber [his] immigration status and even lead to his eventual

deportation.” On December 18, 2018, the trial judge entered an order denying

defendant’s application for PCR. This appeal ensued.

      On appeal, defendant presents the following arguments:

            POINT I
            THE     [PCR]  JUDGE   ERRED   IN    HIS
            DETERMINATION THAT TRIAL COUNSEL
            PROVIDED EFFECTIVE ASSISTANCE SINCE SHE
            GAVE      DEFENDANT   MISLEADING   AND
            INACCURATE      ADVICE    ABOUT     THE
            IMMIGRATION     CONSEQUENCES   OF    HIS
            GUILTY PLEA.

            POINT II
            THE [PCR] JUDGE ERRED BY DENYING
            DEFENDANT'S CLAIM THAT HIS PLEA WAS
            DEFECTIVE DUE TO THE FAILURE OF BOTH
            TRIAL COUNSEL AND THE TRIAL [JUDGE] TO
            EXPLAIN THE IMMIGRATION CONSEQUENCES
            OF DEFENDANT'S GUILTY PLEA.

            POINT III
            THE [PCR JUDGE] ERRED IN DENYING . . .
            DEFENDANT'S PETITION FOR [PCR] WITHOUT
            AFFORDING HIM AN EVIDENTIARY HEARING
            TO FULLY ADDRESS HIS CONTENTION THAT
            HE FAILED TO RECEIVE ADEQUATE LEGAL
            REPRESENTATION FROM TRIAL COUNSEL.



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                                      6
            POINT IV
            THE    [PCR]   JUDGE    ERRED  IN  HIS
            DETERMINATION THAT DEFENDANT FAILED
            TO ESTABLISH EXCUSABLE NEGLECT TO
            EXTEND THE FIVE-YEAR TIME BAR UNDER
            [RULE] 3:22-12(a)(1) AND HIS CLAIM OF
            INEFFECTIVE ASSISTANCE OF COUNSEL
            FALLS WITHIN THE EXCEPTION TO [RULE]
            3:22-4 SINCE IT WAS A DENIAL OF HIS
            CONSTITUTIONAL RIGHTS.

We conclude defendant's arguments lack sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons

set forth by the judge in his well-reasoned decision. We add the following

brief remarks.

      A defendant is entitled to an evidentiary hearing only when he "has

presented a prima facie [case] in support of [PCR]," meaning that a defendant

must demonstrate "a reasonable likelihood that his . . . claim will ult imately

succeed on the merits."    State v. Marshall, 148 N.J. 89, 158 (1997) (first

alteration in original) (quoting State v. Preciose, 129 N.J. 451, 462-63 (1992)).

To obtain relief based on ineffective assistance grounds, a defendant must

demonstrate not only that counsel's performance was deficient, but also that

the deficiency prejudiced his right to a fair trial. Strickland, 466 U.S. at 687;

State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in

New Jersey, now known as the Strickland/Fritz test).

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                                      7
      In connection with a PCR application alleging ineffective assistance of

counsel for failure to explain the immigration consequences of a plea bargain,

non-citizen defendants may be relieved of their burden to satisfy the Strickland

test. This occurs where counsel affirmatively misadvises a defendant as to the

immigration consequences of his guilty plea, and tells him that he will not be

deported based on his criminal conviction. State v. Gaitan, 209 N.J. 339, 346

(2012) (discussing State v. Nuñez-Valdéz, 200 N.J. 129, 140-42 (2009)).

      As the trial judge found, defendant failed to meet this standard

warranting an evidentiary hearing; he has not established a prima facie case of

ineffectiveness, but instead made unsupported bald assertions that are directly

contradicted and belied by his testimony at his plea hearing. For this same

reason, there are no exceptional circumstances permitting a PCR application

that is time-barred by Rule 3:22-12.

      To the extent that we have not specifically addressed any other issues

raised by defendant, we find they lack sufficient merit to warrant discussion in

a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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