                                NOT FOR PUBLICATION WITHOUT THE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-0514-17T4



STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

JOSE RODRIGUEZ, a/k/a JOSE
ESTEBAN RODRIGUEZ GUZMAN,

     Defendant-Appellant.
_______________________________

                   Submitted January 8, 2019 - Decided January 25, 2019

                   Before Judges Accurso and Vernoia.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Hudson County, Indictment No. 96-08-1429.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Lee March Grayson, Designated Counsel, on
                   the brief).

                   Esther Suarez, Hudson County Prosecutor, attorney for
                   respondent (Erin M. Campbell, Assistant Prosecutor,
                   on the brief).
PER CURIAM

      This post-conviction relief (PCR) matter returns to us following our

remand for a limited evidentiary hearing to address defendant Jose Rodriguez's

criminal record and his reasons for waiting seventeen years to file a first PCR

petition following his 1996 guilty plea to a third-degree, 1000-foot offense,

N.J.S.A. 2C:35-7. Now having the benefit of the record of that evidentiary

hearing, we affirm the denial of his PCR petition.

      Defendant is a citizen of Guatemala. He has been a permanent resident of

the United States since the age of fourteen. In 1996 when he was twenty years

old, he was arrested in Jersey City and indicted on charges of aggravated assault,

possession of a weapon for an unlawful purpose, unlawful possession of a

weapon, a box-cutter, possession of a controlled dangerous substance with intent

to distribute and intent to distribute six grams of marijuana within 1000 feet of

a school.1 He had no prior criminal record. He pleaded guilty to the third-

degree, 1000-foot offense pursuant to a negotiated agreement and was sentenced

to two years' probation.




1
  The marijuana was found in twenty-two heat-sealed plastic bags contained in
a pouch hidden in the car defendant was driving.
                                                                         A-0514-17T4
                                        2
      In April 2013, defendant was detained by Immigration and Customs

Enforcement officials on the basis of that criminal conviction and at least one

other, a 2007 conviction for unlawful possession of a nine millimeter Glock

handgun. Immigration authorities thereafter instituted removal proceedings

against him. After several missteps, detailed in our prior order of November 28,

2016, defendant succeeded in having those proceedings delayed while he

pursued a PCR application.

      Defendant filed a pro se PCR petition in April 2014. Although counsel

refers to a certification by defendant purportedly attached to a brief he filed in

May 2014 in support of a motion to withdraw his plea, the certification is no t

included in the appendix. 2 There is, however, a certification from defendant

dated October 23, 2014 in which he claims his "trial counsel did not discuss with

[him] anything regarding the pre-trial intervention program" prior to his plea,

and that he "would have wanted [counsel] to pursue that application." In the



2
  This omission is despite direction in our prior order that the failure to submit
defendant's PCR petition "is to be corrected in any further filings in this court."
Defendant states in his PCR petition that he "was misrepresented and plead[ed]
guilty without fully understanding the consequences," and further states he
"[has] attached more details." Nothing is attached to the petition included in the
appendix. Defendant's pro se brief in support of his motion to withdraw his plea
also references an attached certification, which also is not included in the
appendix.
                                                                          A-0514-17T4
                                        3
same certification, defendant claims he "did discuss the immigration

consequences of [his] plea with [his] attorney," and represents the lawyer told

him "that [he would] not have any problems with that since [he was] receiving

probation."

      The PCR court heard argument on the petition and issued a written opinion

finding it time-barred and without merit under the two-prong test formulated by

the United States Supreme Court in Strickland v. Washington, 466 U.S. 668

(1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58

(1987). Noting defendant answered "yes" to former Question 17 on the plea

form confirming he understood his guilty plea might result in his deportation,

the court also noted defendant was arrested ten times following the entry of his

plea and convicted of two indictable offenses, "unlawful possession of a

handgun in 2004 and endangering the welfare of a child in 2005." The court

found defendant was "subject to deportation on separate convictions unrelated

to this case, and has other subsequent interactions with attorneys and the

criminal justice system" leaving it "wholly unconvinced that the Petitioner was

unaware of his potential for deportation until now."

      The court further noted the federal "Notice to Appear" for removal

proceedings that defendant claims he received at the time of his arrest by federal


                                                                         A-0514-17T4
                                        4
authorities in 2013 was dated September 30, 2011.         The court concluded

defendant put forth no "meaningful argument" to refute that he "waited almost

3 years to file this PCR after affirmative notice of his deportation hearing, and

. . . has two other convictions upon which he can be deported," including a "1st

degree conviction for endangering the welfare of a child." Because the court

found that even viewing the facts most favorably to defendant he could not

establish a prima facie claim for relief, it deemed an evidentiary hearing

unnecessary.

      Defendant appealed, arguing the trial court made critical factual errors

about the record in the absence of an evidentiary hearing. Specifically, he

claimed he was never convicted of first-degree child endangerment and was not

served with the 2011 notice to appear until his arrest by immigration authorities

in 2013, both of which he argued weighed heavily in the PCR court's assessment

of the proofs. Although noting defendant never raised the alleged factual errors

to the PCR court and only raised them to us by way of a motion to supplement

the record, as well as "the formidable challenge presented for prevailing on a

PCR petition filed seventeen years after entry of the plea," we concluded those

alleged factual issues required a remand for an evidentiary hearing, the scope of

which we left to the PCR court.


                                                                         A-0514-17T4
                                       5
      The court conducted an evidentiary hearing to address defendant's

criminal record and his seventeen-year-delay in filing his petition. It clarified

defendant's criminal record, with the parties agreeing defendant had two

indictable convictions following his 1996 plea:           second-degree unlawful

possession of a handgun in 2004 and third-degree endangerment of a child in

2005. Defendant testified he was not aware of the federal notice to appear for

removal proceedings dated September 30, 2011, until his arrest by federal

authorities on April 18, 2013. He further testified the lawyer his family retained

to file a PCR petition for him failed to do so, necessitating defendant's pro se

filing in April 2014.

      Following the evidentiary hearing, Judge Venable issued a written

decision denying defendant's petition. She found the case indistinguishable

from State v. Brewster, 429 N.J. Super. 387, 397-98 (App. Div. 2013), in which

we held a defendant pleading guilty to a 1000-foot offense in 1998, whose

counsel predicted the defendant would not have an immigration issue, in

conjunction with the warning contained in Question 17 of the plea form that the

defendant may be deported, had not presented prima facie proof of ineffective

assistance of counsel.     In addition to finding Brewster's petition factually

insufficient, we further concluded his failure to file it until his arrest by federal


                                                                            A-0514-17T4
                                         6
immigration authorities nearly twelve years after his conviction did not

constitute excusable neglect, noting Brewster "had both the opportunity and the

incentive to learn whether he might be deported before the time of his arrest by

federal immigration authorities in April 2010" but failed to act. Id. at 401.

      Judge Venable likewise found defendant's ten arrests and two indictable

convictions following his 1996 plea provided him ample opportunity and

incentive to determine whether he was at risk of deportation, even accepting as

true, as he testified, that he was not served with the September 30, 2011 notice

to appear until his arrest in 2013. She thus found defendant's petition time-

barred without excusable neglect for the late filing.

      Turning to the merits, the judge rejected defendant's claim that his

attorney was deficient for failing to apply for pre-trial intervention. The judge

noted defendant provided no proof the prosecutor would have recommended him

for PTI, rendering his claim no better than a bare assertion insufficient to

establish a prima facie case of ineffectiveness. See State v. Cummings, 321 N.J.

Super. 154, 171 (App. Div. 1999). Moreover, she noted defendant was charged

with the second-degree offense of aggravated assault making him presumptively

ineligible for PTI. See N.J.S.A. 2C:43-12(b); R. 3:28-4(b)(1); State v. Roseman,

221 N.J. 611, 622 (2015).


                                                                         A-0514-17T4
                                        7
      The judge further found, as in Brewster, that counsel's advice to defendant

as to the immigration consequences of the plea did not fall below established

norms and that defendant's "knowledge of the risk of deportation did not affect

the truth-finding function of the court when it accepted his plea." Brewster, 429

N.J. Super. at 398, 401. The judge noted the plea transcript clearly indicated

defendant was guilty of the 1000-foot offense and nothing in the record

suggested he was prejudiced by his counsel's advice, and thus that defendant

could not show manifest injustice under R. 3:22-12(a)(1)(A).

      Defendant moved for reconsideration, arguing the court erred in limiting

the scope of the hearing so as to exclude the advice defense counsel gave him

regarding the immigration consequences of his plea and in concluding he could

not show prejudice because his other two convictions would render him

deportable in any event. Judge Venable denied the motion, explaining she

referred to defendant's other convictions

            not to establish that regardless of the outcome of this
            PCR, he would still have a deportable offense, but
            rather to note that his record reflected several
            subsequent interactions with attorneys and the criminal
            justice system after the conviction that is the subject of
            this PCR motion that would have provided him the
            opportunity to become aware of his risk of potential
            deportation.

      Defendant appeals, raising the following issues:

                                                                         A-0514-17T4
                                        8
POINT I

THE PCR COURT'S DECISION DENYING
PETITIONER'S INEFFECTIVE ASSISTANCE OF
COUNSEL CLAIM AS TIME-BARRED WITHOUT
CONDUCTING A FULL EVIDENTIARY HEARING
THAT EXAMINED THE PERFORMANCE OF PLEA
COUNSEL AND THE ISSUE OF HIS INCORRECT
LEGAL     ADVICE     REGARDING     THE
IMMIGRATION CONSEQUENCES OF PLEADING
TO THE THIRD-DEGREE CDS OFFENSE HAS
RESULTED IN FUNDAMENTAL INJUSTICE,
WHICH REQUIRES REMAND TO THE PCR COURT
BEFORE A DIFFERENT JUDGE FOR A NEW
HEARING.

POINT II

THE PCR COURT ERRED IN DENYING THE
DEFENDANT'S     PETITION   FOR    POST-
CONVICTION RELIEF WITHOUT AFFORDING
HIM A FULL EVIDENTIARY HEARING THAT
INCLUDED TESTIMONY FROM PLEA COUNSEL
TO FULLY ADDRESS THE ISSUE OF HIS
ATTORNEY PROVIDING HIM WITH INCORRECT
LEGAL     ADVICE      REGARDING     THE
IMMIGRATION CONSEQUENCES OF PLEADING
GUILTY TO THE THIRD-DEGREE CDS OFFENSE.

POINT III

THE PCR COURT ERRED IN DENYING THE
DEFENDANT'S   PETITION  FOR    POST-
CONVICTION RELIEF WITHOUT AFFORDING

                                          A-0514-17T4
                   9
            HIM A FULL EVIDENTIARY HEARING THAT
            INCLUDED TESTIMONY FROM PLEA COUNSEL
            TO FULLY ADDRESS THE ISSUE OF HIS
            ATTORNEY PROVIDING HIM WITH INCORRECT
            LEGAL ADVICE REGARDING HIS ELIGIBILITY
            FOR DIVERSION THROUGH THE PRETRIAL
            INTERVENTION PROGRAM .

We reject those arguments as without sufficient merit to warrant extended

discussion in a written opinion. R. 2:11-3(e)(2).

      Defendant's arguments about the limited scope of the evidentiary hearing

on remand are misplaced because the judge assumed the truth of defendant's

assertion that his counsel told him he would "not have any problems" with his

immigration status because he was receiving a probationary sentence. The judge

found, as we did in Brewster, that the advice in conjunction with his affirmative

response to Question 17 on the plea form that defendant "may be deported by

virtue of [his] plea" did not constitute material misadvice at the time of the plea

in 1996.3 See Brewster, 429 N.J. Super. at 397-98.


3
  In his pro se brief filed in 2014, defendant claimed he asked his counsel about
Question 17 and was assured it "was perfunctory, and [did] not mean he would
have immigration problems." Defendant argued in that brief that his counsel

            had a duty to advise [him], beforehand, that he would
            in fact be deported if he entered a guilty plea. Counsel
            offered no such advice prior to pleadings (sic). Counsel
            at one point admitted that he was "not an immigration


                                                                          A-0514-17T4
                                       10
      More important, however, is Judge Venable's finding, as a result of the

evidentiary hearing afforded defendant, that his ten subsequent arrests and two

convictions provided him extensive contact with the criminal justice system and

ample opportunity to become aware of the immigration consequences of his

1996 plea before his 2013 arrest by immigration authorities. We agree with



            lawyer," yet he managed to convey incorrect
            immigration advice in this matter (citing paragraph 16
            of defendant's certification not included in the record).

      In Brewster, we disagreed "with defendant's contention that competent
representation required advice from his attorney that he 'would' be deported as
a result of his conviction" in 1998. 429 N.J. Super. at 397. We noted that

            [i]n fact, it might have been incorrect at that time for
            defense counsel to have advised defendant he would
            surely, or likely, be deported and thus potentially have
            caused defendant to forego a favorable plea offer and
            to accept the likelihood of a longer term in state prison
            by conviction at trial. A longer prison sentence would
            not have saved defendant from deportation.

            [Ibid.]

       Defendant notes much the same in his 2014 pro se filing, writing that his
counsel's "misleading advice may have had some basis in the lack of strict
enforcement of the immigration laws" in 1996 at the time of defendant's guilty
plea. He explained that New Jersey "attorneys were not typically too concerned
with deportation consequences" when defendants pleaded guilty "since most of
their clients who were convicted for mandatory deportable offenses at the time
would avoid detection by DHS/ICE (Department of Human Services/
Immigration and Customs Enforcement) due to very weak cooperation bet ween
the State Criminal System and the DHS. Such is not the case today."
                                                                        A-0514-17T4
                                      11
Judge Venable that nothing in the record demonstrates excusable neglect for

defendant's failure to file a timely PCR petition and nothing justifies waiting

twelve years beyond the five-year period for doing so. See Brewster, 429 N.J.

Super. at 400 ("Defendant cannot assert excusable neglect simply because he

received inaccurate deportation advice from his defense counsel.").

      Because we agree defendant's petition was factually insufficient to

warrant the relief he seeks, and he is barred from pursuing his claims because

he did not file a timely PCR petition, we affirm the denial of defendant's petition

substantially for the reasons expressed by Judge Venable in her written opinions

of March 21, 2017 and August 17, 2017.

      Affirmed.




                                                                          A-0514-17T4
                                       12
