                                       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                                NOT FOR PUBLICATION WITHOUT THE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-2251-17T4

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

PRAMOD BHAGAT,

     Defendant-Appellant.
___________________________

                    Submitted December 11, 2018 – Decided January 11, 2019

                    Before Judges Geiger and Firko.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Bergen County, Accusation No. 08-10-1614.

                    Michael S. Allongo, attorney for appellant (Michael J.
                    Cennimo, 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 Pramod Bhagat appeals the denial of his second petition for

post-conviction relief (PCR) without an evidentiary hearing. We affirm.

                                        I.

      In August 2007, defendant engaged in online communications in a Yahoo

chatroom with an undercover officer whom defendant believed to be a fourteen-

year-old girl named "Sam" or "Samantha." During the course of the online

conversations, defendant and the undercover officer discussed meeting for a

movie date, kissing, and touching Sam underneath her shirt and skirt. Defendant

intended to touch the vagina of the person he believed to be a fourteen -year-old

girl. On August 23, 2007, defendant travelled to Upper Saddle River to meet

Sam for the previously discussed movie date. Upon arrival to the address

supplied by the undercover officer, defendant was arrested and found to have

condoms on his person.

      Defendant is not a citizen of the United States; he is a citizen of India. He

resided in the United States as a permanent resident alien. He is fluent in English

and highly educated, having obtained a master's degree in mathematics.

      During a pre-indictment plea conference on October 22, 2008, the State

offered defendant a plea agreement of pleading guilty to a single count of fourth-

degree attempted criminal sexual contact with a victim at least thirteen but less


                                                                           A-2251-17T4
                                        2
than sixteen years of age and a perpetrator more than four years older, N.J.S.A.

2C:14-3(b) and 2C:5-1, in exchange for a recommended sentence of non-

custodial probation, undergoing a psychological evaluation, registration as a sex

offender under Megan's Law, N.J.S.A. 2C:7-2, prohibition from visiting social

media websites, and applicable fines and penalties. The plea offer did not

include parole supervision for life. Defendant waived his right to an indictment

and entered into the plea agreement during the conference, pleading guilty to an

accusation.

      During the plea hearing, defendant testified he reviewed, understood, and

answered each question on the plea forms with the assistance of counsel.

Specifically, question seventeen prompted: "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?" Defendant circled "Yes" in response to that question. Question

twenty-three asked: "Are you satisfied with the advice you have received from

your lawyer?" Defendant circled "Yes" in response to that question.

      Defendant was asked by the court, "do you understand that as a result of

this guilty plea, you could be deported or have some other negative consequence

impact your immigration status?" He answered, "Yes." The court also asked

defendant: "Have you had enough time to talk to your attorney . . . about


                                                                         A-2251-17T4
                                       3
everything, including the immigration consequences and everything else?" He

answered, "Yes." The court further asked defendant if he was satisfied with his

attorney's representation of him. He again replied, "Yes."

      Defendant's testimony confirmed he had signed or initialed all eight pages

of the plea forms, had read every question carefully and understood every

question, and had enough time to discuss the matter with his attorney. When

asked if he was "pleading guilty because you really are guilty," defendant

answered, "Yes, I'm guilty."

      During his plea allocution, defendant testified he "chatt[ed] on Yahoo"

with a person who identified herself as a fourteen-year-old and who defendant

reasonably believed was fourteen years old. Defendant admitted that during his

chat room conversations with Sam, "some of the things that were said involved

sexual acts or sexual activity." At the time of the conversations defendant was

thirty-six years old.   Defendant travelled to Upper Saddle River where he

arranged to meet Sam with the purpose of going on a date, kissing, and touching

the child's private parts, including her vagina. He admitted if "that had actually

happened it could have impaired or humiliated a fourteen-year-old girl."

      Defendant was initially hesitant to admit the full extent of his crime when

he provided the factual basis for his plea, stating at one point, "I'm not that kind


                                                                            A-2251-17T4
                                         4
of person."   Appropriately, the prosecutor stated he could not accept that,

expressing concern defendant might later attack the factual basis for the plea.

The prosecutor stated defendant "has to plead to the elements of the crime."

Defendant then admitted to committing the elements of attempted sexual contact

by acknowledging his purpose in travelling to Saddle River "was to potentially

touch the private parts of Samantha," and that at the time he arrived there it was

his "intention" to "touch her vagina."

      Defendant has no other criminal history. He was sentenced in accordance

with the plea agreement on January 30, 2009. The judgment of conviction was

entered on February 2, 2009. Defendant did not move to withdraw his plea

either before or after sentencing. He did not appeal his conviction or sentence.

Defendant subsequently violated probation (VOP) and was re-sentenced on

December 14, 2012, to probation conditioned upon 180 days in jail. Defendant

did not appeal his VOP conviction or sentence.

      On April 4, 2016, defendant was served with a notice to appear by the

Department of Homeland Security stating its intent to commence deportation

proceedings based on defendant's "aggravated felony" conviction pursuant to 8

U.S.C. § 1227.




                                                                          A-2251-17T4
                                         5
      On July 21, 2016, defendant filed his first PCR petition. On November

28, 2016, the petition was dismissed without prejudice "pursuant to Rule 3:22-

6A(3) for counsel's failure to file an amended petition establishing excusable

neglect within 120 days." Through counsel, defendant filed his second PCR

petition and supporting certification on March 31, 2017. Defendant asserted his

plea counsel improperly advised him of the immigration consequences of his

guilty plea because he was only told he "might be put in removal proceedings,

not that [he] was pleading to an [a]ggravated [f]elony and that it was mandatory

that [he] be deported." In addition, defendant certifies he also consulted with an

immigration attorney regarding his immigration situation and was advised he

would not be deported.

      Defendant further certified that subsequent to his plea, he met with eleven

immigration attorneys about renewing his permanent resident card and pursuing

citizenship and none advised him to pursue PCR or that deportation was

mandatory in light of his guilty plea. During oral argument, defendant expressed

his intent to adduce testimony from his plea counsel and all eleven immigration

attorneys he consulted. He also claimed he had an entrapment defense.

      The PCR court heard oral argument on September 14, 2017, took the

matter under advisement, and issued a December 8, 2017 order and ten -page


                                                                          A-2251-17T4
                                        6
written decision denying defendant's second PCR petition without an

evidentiary hearing. This appeal followed.

     Defendant argues:

           POINT I
           THE COURT ERRED IN RULING THAT
           APPELLANT   FAILED   TO   DEMONSTRATE
           EXCUSABLE NEGLECT SUFFICIENT TO JUSTIFY
           RELAXATION OF THE TIME BAR AT ISSUE.

           POINT II
           THE COURT ERRED IN RULING THAT
           PETITIONER FAILED TO ESTABLISH A
           COLORABLE CLAIM OF INNOCENCE BECAUSE
           THE COURT INCORRECTLY RULED THAT
           PETITIONER’S STATEMENTS CONSTITUTED AN
           ADMISSION OF GUILT, AND IMPLICIT[]LY
           RULED THAT THE FACTUAL BASIS FOR THE
           GUILTY PLEA WAS ADEQUATE, DESPITE
           FAILING   [TO]   ADDRESS    PETITONER'S
           ARGUMENT THAT A NECESSARY ELEMENT OF
           THE OFFENSE, NAMELY THE INTENT TO HAVE
           SEXUAL CONTACT, WAS NOT ADMITTED IN
           THE CONTEXT OF THE GUILTY PLEA.

           POINT III
           THE COURT ERRED IN RULING THAT
           PETITIONER    DEMONSTRATED     NEITHER
           INEFFECTIVE ASSISTANCE OF COUNSEL NOR
           SUFFICIENT    REASONS    TO     JUSTIFY
           WITHDRAWAL OF THE GUILTY PLEA DESPITE
           FAILING    TO   ADDRESS    PETITIONER'S
           ARGUMENTS REGARDING THE ISSUE OF
           ENTRAPMENT.



                                                             A-2251-17T4
                                      7
            POINT IV
            THE COURT COM[M]ITTED PLAIN ERROR BY
            INCORRECTLY STATING IN THE WRITTEN
            OPINION THAT THE COURT'S DECISION WAS
            BASED IN PART ON "TESTIMONY ELICITED AT
            THE HEARING" WHEN NO HEARING ACTUALLY
            TOOK     PLACE,   THUS    CAUSING   ANY
            REASONABLE PERSON TO QUESTION THE
            ENTIRE DECISION. (NOT RAISED BELOW)

                                       II.

      PCR petitioners are not automatically entitled to an evidentiary hearing.

State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999); R. 3:22-10(b).

A PCR court need not grant an evidentiary hearing unless "a defendant has

presented a prima facie case in support of PCR." State v. Jones, 219 N.J. 298,

311 (2014) (citing State v. Marshall, 148 N.J. 89, 158 (1997)). "To establish

such a prima facie case, the defendant must demonstrate a reasonable likelihood

that his or her claim will ultimately succeed on the merits." Marshall, 148 N.J.

at 158. The court must view the facts "in the light most favorable to defendant."

Ibid. (quoting State v. Preciose, 129 N.J. 451, 462-63 (1992)); accord R. 3:22-

10(b). We conduct a de novo review when the PCR court did not hold an

evidentiary hearing on the claim defendant now raises on appeal.        State v.

Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018).




                                                                         A-2251-17T4
                                       8
      The PCR court held defendant's second petition was time-barred. After a

careful review of the arguments in light of the record and the applicable

principles of law, we affirm, but for different reasons than stated by the PCR

court.1 We affirm the denial of defendant's petition without an evidentiary

hearing because this is his second petition for PCR and he fails to assert a

cognizable claim for relief under Rule 3:22-12(a)(2).

      Defendant's first petition for PCR was dismissed without prejudice on

November 28, 2016. Defendant had ninety days to amend and refile his petition

for it to "be treated as a first petition for [the] purposes of these rules." R. 3:22-

12(a)(4). Defendant filed this petition on March 31, 2017. However, the ninety

days afforded to defendant to refile his petition expired on February 27, 2017.

R. 1:3-1. Thus, this petition must be evaluated under the rules for second or

subsequent PCR petitions.

      Rule 3:22-4(b)(1) mandates the dismissal of a "second or subsequent"

PCR petition unless "it is timely under Rule 3:22-12(a)(2)[.]"           Rule 3:22-

12(a)(2) states:




1
   See State v. Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011) (stating an
appellate court is "free to affirm the trial court's decision on grounds different
from those relied upon by the trial court").
                                                                              A-2251-17T4
                                          9
            Notwithstanding any other provision in this rule, no
            second or subsequent petition shall be filed more than
            one year after the latest of:

            (A) the date on which the constitutional right asserted
            was initially recognized by the United States Supreme
            Court or the Supreme Court of New Jersey, if that right
            has been newly recognized by either of those Courts
            and made retroactive by either of those Courts to cases
            on collateral review; or

            (B) the date on which the factual predicate for the relief
            sought was discovered, if that factual predicate could
            not have been discovered earlier through the exercise
            of reasonable diligence; or

            (C) the date of the denial of the first or subsequent
            application for post-conviction relief where ineffective
            assistance of counsel that represented the defendant on
            the first or subsequent application for post-conviction
            relief is being alleged.

            [Ibid.]

      Defendant's second PCR petition is procedurally barred because he claims

no newly recognized constitutional right. R. 3:22-12(a)(2)(A). Under the Sixth

Amendment of the United States Constitution, a criminal defendant is

guaranteed the effective assistance of legal counsel in his defense. Strickland

v. Washington, 466 U.S. 668, 687 (1984). To establish a deprivation of that

right, a convicted defendant must satisfy the two-part test enunciated in

Strickland by demonstrating that: (1) counsel's performance was deficient, and


                                                                         A-2251-17T4
                                       10
(2) the deficient performance actually prejudiced the accused's defense. Id. at

687; accord State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-

part test in New Jersey).

      "Before deciding whether to plead guilty, a defendant is entitled to 'the

effective assistance of competent counsel.'" Padilla v. Kentucky, 559 U.S. 356,

364 (2010) (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970);

Strickland, 466 U.S. at 686). Our Supreme Court adopted the following test for

ineffective assistance of counsel claims in the context of a plea agreement:

            To 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,"
            Tollett v. Henderson, 411 U.S. 258, 266 (1973); 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." Hill
            v. Lockhart, 474 U.S. 52, 58 (1973).

            [State v. DiFrisco, 137 N.J. 434, 457 (1994) (alteration
            in original).]

Defendant must also show a decision to reject the plea would have been rational

under the circumstances. See State v. Maddon, 422 N.J. Super. 475, 486 (App.

Div. 2011) (stating defendant must show "had he been properly advised, it would

have been rational for him to decline the plea offer and insist on going to trial

and, in fact that he probably would have done so").

                                                                         A-2251-17T4
                                      11
      In Padilla, the United States Supreme Court held the Sixth Amendment's

guarantee of a right to counsel requires defense counsel to advise their clients

whether a guilty plea carries a risk of deportation. 559 U.S. at 374. Generally,

trial counsel "need do no more than advise a noncitizen client that pending

criminal charges may carry a risk of adverse immigration consequences." Id. at

369. "But when the deportation consequence is truly clear" because "the terms

of the relevant immigration statute are succinct, clear, and explicit," such that

the removal consequences of a plea can "easily be determined from reading the

removal statute," "the duty to give correct advice is equally clear." Id. at 368-

69.

      Upon review, our Supreme Court concluded Padilla established a new rule

of constitutional law within the pre-existing ineffective assistance of counsel

framework, which does not retroactively apply to cases on collateral review.

State v. Gaitan, 209 N.J. 339, 371-72 (2012). In Chaidez v. United States, the

United States Supreme Court also held Padilla does not have retroactive effect

to cases on collateral review. 568 U.S. 342, 344, 347 (2013).

      Defendant pleaded guilty and was sentenced prior to the decision in

Padilla. He did not file a direct appeal. Instead, he seeks collateral review of

his plea and conviction through PCR. Thus, by the clear edicts of Gaitan and


                                                                         A-2251-17T4
                                      12
Chaidez, the new constitutional right adopted in Padilla does not apply to

defendant's petition.

      Defendant's second PCR petition was filed within one year of the notice

of his immigration detainer.       Thus, defendant's petition was arguably filed

within one year of discovery of "the factual predicate for the relief sought." R.

3:22-12(a)(2)(B); see also State v. Brewster, 429 N.J. Super. 387, 399-400 (App.

Div. 2013) (holding the defendant's PCR petition was time-barred under Rule

3:22-12(a)(2)(B) because he "consulted an attorney in 2007 and was advised that

his 1998 conviction 'could be a problem'" yet waited until 2010 to seek post -

conviction relief).     Nevertheless, defendant's claim does not warrant relief

because his plea counsel was not ineffective.

      Since defendant's case reached finality prior to the Supreme Court's ruling

in Padilla, collateral review of his conviction based on claims of ineffective

assistance of counsel involving immigration consequences of a guilty plea falls

under the standard adopted by our Supreme Court in State v. Nuñez-Valdéz, 200

N.J. 129 (2009). Gaitan, 209 N.J. at 373-74. Nuñez-Valdéz held an ineffective

assistance of counsel claim could be based on the provision of "misleading,

material information" about the immigration consequences of a defendant's

guilty plea. 200 N.J. at 139-40.


                                                                         A-2251-17T4
                                        13
      Defendant claims his plea counsel provided misleading advice because

she did not advise him that pleading to an offense that constituted an aggravated

felony under federal immigration law would trigger mandatory deportation. We

disagree.

      Under federal immigration law, "[t]he term 'aggravated felony' means . . .

murder, rape, or sexual abuse of a minor[.]" 8 U.S.C. § 1101(a)(43)(A). However,

as this court has noted, it "d[oes] not define the phrase 'sexual abuse of a minor.'"

State v. Telford, 420 N.J. Super. 465, 472 (App. Div. 2011). Notably, in Telford,

this court held, even under the more stringent Padilla standard, it was "hardly

'clear,' 'explicit,' 'succinct' or 'straightforward'" defendant's deportation would

"inexorably" result from his guilty plea to third-degree endangering the welfare of

a child, N.J.S.A. 2C:24-4(a), for sex offenses committed against a thirteen-year

old girl, especially when this court's "review of the case law . . . regarding the

meaning of 'sexual abuse of a minor' . . . reveal[ed] a very definite split among

the circuits."   Id. at 467, 472, 475.       "When the law is not succinct and

straightforward[,] . . . a criminal defense attorney need do no more than advise

a noncitizen client that pending criminal charges may carry a risk of adverse

immigration consequences." Padilla, 559 U.S. at 369. Thus, in Telford, we

concluded it was not ineffective assistance of counsel for the defendant's


                                                                             A-2251-17T4
                                        14
attorney to advise him "that he 'might' rather than 'would' be deported." 420 N.J.

Super. at 467.

      We further note the defendant in Nuñez-Valdéz was subject to deportation

as a result of his plea to fourth-degree criminal sexual contact of a seventeen-

year-old girl.   200 N.J. at 140.    In this case, defendant pleaded guilty to

attempted criminal sexual contact.

      More fundamentally, unlike in Nuñez-Valdéz, 200 N.J. at 141, plea

counsel here did not did not assure defendant he would not be deported. On the

contrary, according to defendant's own certification, plea counsel told him he

"might be put in removal proceedings." This statement was not affirmatively

misleading, particularly when viewed in conjunction with the language of the

plea forms and the questions the judge posed to defendant during the plea

hearing regarding immigration consequences. Nuñez-Valdéz "did not hold that

advising a client he may be deported was incorrect or deficient legal advice."

Brewster, 429 N.J. Super. at 397 (citing Nuñez-Valdéz, 200 N.J. at 138). Given

these circumstances and this court's conclusion in Telford regarding the




                                                                          A-2251-17T4
                                       15
ambiguity of the definition of "sexual abuse of a minor," plea counsel did not

provide affirmatively misleading advice under the Nuñez-Valdéz standard.2

      Defendant's second PCR petition is also procedurally barred because he

does not allege ineffective assistance of prior PCR counsel. R. 3:22-12(a)(2)(C).

      Defendant argues he established excusable neglect and enforcement of the

time bar would result in a fundamental injustice. However, as discussed above,

this is defendant's second PCR petition and that exception to the time limitations

no longer applies to second PCR petitions. Jackson, 454 N.J. Super. at 294.

      We reject defendant's claim that he did not provide an adequate factual

basis for his plea. A perpetrator is guilty of criminal sexual contact if he

purposefully and intentionally touches a victim's intimate parts, either directly

or through clothing, intending to either degrade or humiliate the victim, or

sexually arouse or gratify himself, N.J.S.A. 2C:14-1(d), and the victim is at least

thirteen years old but less than sixteen years old and the perpetrator is at least

four years older than the victim, N.J.S.A. 2C:14-2(c)(4).        "Intimate parts"

includes the genital area, groin, or breast of a person. N.J.S.A. 2C:14-1(e). In


2
  Although defendant alleges the first immigration attorney he consulted told
him he would not be deported, incorrect advice by immigration counsel does not
constitute ineffective assistance of criminal defense counsel. Nor does the
advice given by immigration counsel after the plea was entered and defendant
was sentenced.
                                                                           A-2251-17T4
                                       16
the context of this case, a person is guilty of criminal attempt if they

purposefully do anything which is an act "constituting a substantial step in a

course of conduct planned to culminate in his commission of the crime."

N.J.S.A. 2C:5-1(a)(3).

      Defendant admitted to engaging in conversations with Sam, a person he

believed to be a fourteen-year-old girl, for the purpose of meeting and engaging

in sexual activities with her. He admitted driving to Saddle River to meet with

Sam with the intention to touch her vagina. He admitted if that had actually

happened it could have impaired or humiliated a fourteen-year-old girl. He was

thirty-six years old at the time.    We conclude the factual basis given by

defendant was adequate.

      Defendant also argues he had a potentially meritorious entrapment

defense that was never raised by his trial counsel. We disagree. In State v.

Davis, this court affirmed the defendant's conviction on "several counts of

attempting to endanger the welfare of a child, endangering the welfare of a child,

and attempted sexual assault" "after an undercover investigation revealed that

he had conversed on the internet about sex and masturbation with an undercover

officer who had portrayed herself as a fourteen-year-old girl." 390 N.J. Super.

573, 580 (App. Div. 2007). We rejected the defendant's entrapment defense


                                                                          A-2251-17T4
                                       17
because "[n]othing prohibits the police from creating characters to conduct

undercover investigations. Rather, 'decoys, traps, and deceptions properly may

be used to apprehend those engaged in crime or to obtain evidence of the

commission of crime.'" Id. at 593 (quoting State v. Rockholt, 96 N.J. 570, 575

(1984)).

      Defendant participated in a series of chat room conversations with Sam,

discussing in detail the sexual activities he sought to engage in with her. The

record does not reflect that Sam controlled or directed the commission of the

crime, or that Sam resorted to "'excessive inducements' to lure defendant." Ibid.

(quoting State v. Johnson, 127 N.J. 458, 479 (1992)).        Defendant has not

demonstrated an entrapment defense would have carried any probability of

success on these facts.

      Finally, defendant also argues the PCR court's inaccurate statement

regarding "having heard the testimony at the hearing" undermines its entire

decision. We disagree. We consider the misstatement to be a mere scrivener's

error that escaped detection.    The PCR court noted it had conducted oral

argument – not a testimonial hearing – on September, 14, 2017, the only day it

conducted a proceeding in this matter.




                                                                         A-2251-17T4
                                      18
      To the extent they are unaddressed, defendant's remaining arguments lack

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




                                                                         A-2251-17T4
                                      19
