                                NOT FOR PUBLICATION WITHOUT THE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-3829-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

BAO DOAN,

     Defendant-Appellant.
________________________

                   Argued February 27, 2020 – Decided April 8, 2020

                   Before Judges Alvarez and Suter.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Atlantic County, Indictment No. 99-01-0098.

                   Timothy Scott Farrow argued the cause for appellant
                   (Dash Law, LLP attorneys; Timothy Scott Farrow, on
                   the brief).

                   Nicole Lynn Campellone argued the cause for
                   respondent (Damon G. Tyner, Atlantic County
                   Prosecutor, attorney; Nicole Lynn Campellone,
                   Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
       Defendant Bao Doan appeals the April 16, 2019 order denying his petition

for post-conviction relief (PCR) without an evidentiary hearing. For reasons

that follow, we affirm the order in part because defendant did not establish a

prima facie case of ineffective assistance of counsel. However, we reverse in

part and remand the case for the PCR court to determine defendant's request to

vacate his guilty plea.

                                     I.

       Defendant pleaded guilty on March 17, 1999 to count nine of Atlantic

County indictment 98-12-2971 charging him with third-degree theft by

deception, N.J.S.A. 2C:20-4. On the same day, he pleaded guilty under Atlantic

County indictment 99-01-0098 to count three, charging third-degree attempted

theft by deception, N.J.S.A. 2C:20-4 and count eight, charging third-degree

burglary, N.J.S.A. 2C:18-2(a)(1). He was sentenced in June 1999, to a three-

year term of incarceration on each count, to be served concurrently. Defendant

served his sentence. He did not file a direct appeal of his plea or sentence.

       In October 2018, defendant filed for post-conviction relief (PCR).1

Defendant requested to vacate his guilty plea because he alleged an adequate

factual basis was not presented at the plea hearing and because he did not receive


1
    The PCR petition was not included in the appendix.
                                                                          A-3829-18T1
                                          2
adequate advice from his attorney about the immigration consequences of his

guilty plea.    Defendant stated in his supporting certification, that prior to

pleading guilty, the trial court did not ask him whether he needed an interpreter,

whether he was a citizen or whether he was aware of "the potential immigration

consequences of [his] guilty plea." He alleged he would have asked for a

Vietnamese interpreter had he known to do so, because his primary language is

Vietnamese. He claimed he would not have pleaded guilty if he had been

advised of the "potential consequences prior to entering [his] guilty plea." His

certification asked to vacate his guilty plea and to remand the case for a new

trial.

         Defendant argued that a federal policy, which had been in effect since

2008 and precluded the Vietnamese who came to the United States before July

1995 from being deported, was being changed to allow those with criminal

convictions to be deported. Defendant claimed he filed his PCR petition when

he learned about this change in October 2018.

         The trial court found this policy change did not constitute excusable

neglect because defendant pleaded guilty in 1999, before the 2008 policy was in

effect. Defendant initialed and signed the plea form, which included a question

advising him he may be deported based on his plea. The court found defendant


                                                                          A-3829-18T1
                                        3
"was on full notice at the time of the plea on March 17, 1999, that these were

offenses to which he could be subject to potential deportation . . . ." It also

concluded the five-year window for defendant to file a PCR petition ended in

2004, even before the policy was instituted. The PCR court rejected defendant's

argument that the factual bases for his guilty pleas were not adequate to support

a knowing and voluntary waiver of his rights, because issues about the factual

bases could have been raised in a direct appeal. The PCR court determined

defendant failed to show a prima facie case for ineffective assistance of counsel

because defendant's attorney did not "provide false or willful misleading

information as to immigration consequences . . . ." Defendant's PCR petition

was denied on April 16, 2019, without an evidentiary hearing.

      Defendant presents the following issues on appeal:

            POINT I: THE PCR COURT ERRED IN DENYING
            MR. DOAN'S MOTION TO WITHDRAW HIS
            GUILTY PLEA AND THE MATTER SHOULD BE
            REMANDED FOR AN EVIDENTIARY HEARING,
            BECAUSE: (1) THE PLEA WAS NOT KNOWING
            AND VOLUNTARY, AS MR. DOAN DID NOT
            KNOW THAT HE COULD BE DEPORTED BASED
            UPON HIS PLEA; AND (2) HE DID NOT
            UNDERSTAND NOR PROVIDE A FULL FACTUAL
            BASIS FOR THE CHARGES.

                  A. THE MOTION TO WITHDRAW THE
                  GUILTY PLEA AND PETITION FOR
                  POST-CONVICTION (sic) BASED ON

                                                                         A-3829-18T1
                                       4
    INEFFECTIVE ASSISTANCE  OF
    COUNSEL MUST BE CONSIDERED
    SEPARATELY.

POINT II: DEFENDANT'S PCR PETITION IS NOT
TIME-BARRED AS HE HAS ESTABLISHED
EXCUSABLE NEGLECT FOR FILING HIS PETION
(sic) PAST THE FIVE-YEAR TIME LIMIT AND
ENFORCEMNT (sic) OF THE TIME BAR WOULD
RESULT IN A FUNDAMENTAL INJUSTICE.

    A. MR. DOAN HAS ESTABLISHED
    EXUSABLE (sic) NEGLECT, BECAUSE
    UNTIL 2018, AS A VIETNAMSE (sic)
    IMMIGRANT, HE NEVER FACED
    IMMINENT        DANGER       OF
    DEPORTATION.

    B. ENFORCEMENT OF THE TIME BAR
    WOULD      RESULT     IN     A
    FUNDAMENTAL INJUSTICE, AS IT
    WAS CLEAR THAT MR. DORN
    SHOULD     HAVE     HAD     AN
    INTERPRETER DURING HIS PLEA
    COLLOQUY.

POINT III: DEFENDANT'S GUILTY PLEAS MUST
BE VACATED BECAUSE HE WAS MIS-ADVISED
BOTH BY HIS COUNSEL AND THE COURT
CONCERNING         THE      DEPORTATION
CONSEQUENCES OF THAT PLEA. AT MINIMUM,
DEFENDANT'S     CLAIM   OF    INEFFECTIVE
ASSISTANCE OF COUNSEL SHOULD NOT BE
DISMISSED WITHOUT AN EVIDENTIARY
HEARING.




                                            A-3829-18T1
                    5
                                       II.

                                       A.

      Under Rule 3:22–12(a)(1)(A), a PCR petition shall not be filed more than

five years after entry of a judgment of conviction unless the delay was "due to

defendant's excusable neglect and . . . there is a reasonable probability that if the

defendant's factual assertions were found to be true enforcement of the time bar

would result in a fundamental injustice[.]" This "time bar should be relaxed

only 'under exceptional circumstances' because '[a]s time passes, justice

becomes more elusive and the necessity for preserving finality and certainty of

judgments increases.'" State v. Goodwin, 173 N.J. 583, 594 (2002) (quoting

State v. Afanador, 151 N.J. 41, 52 (1997)).

      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 petitioner's claim in determining whether there

has been an 'injustice' sufficient to relax the time limits." Afanador, 151 N.J. at

52 (quoting State v. Mitchell, 126 N.J. 565, 580 (1992)). The "burden to justify

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


                                                                             A-3829-18T1
                                             6
delay" unless there are "compelling, extenuating circumstances."         Ibid. To

establish a fundamental injustice, "there should at least be some showing that

. . . [the alleged violation] played a role in the determination of guilt." State v.

Laurick, 120 N.J. 1, 13 (1990).

      Defendant filed his PCR petition in 2018, approximately nineteen years

after he was sentenced. This was well outside the five-year limit. Defendant

contends his delay was excusable because he could be facing deportation given

the recent change in federal policy.

      We agree with the trial court that this circumstance did not constitute

excusable neglect. The federal program that may be ending and could result in

defendant's deportation did not commence until 2008.           There was nothing

preventing his deportation from 1999 through 2008. The federal policy, having

started and ended more than five years after defendant's judgment of conviction

did not constitute excusable neglect under Rule 3:22–12(a)(1)(A) to permit a

late filing in 2018.

                                       B.

      Defendant contends he was not aware of the immigration consequences of

his plea because of the ineffective assistance of his attorney. He asserts this

constituted excusable neglect for his late filing.


                                                                            A-3829-18T1
                                            7
      The standard for determining whether counsel's performance was

ineffective for purposes of the Sixth Amendment was formulated in Strickland

v. Washington, 466 U.S. 668 (1984), and adopted by our Supreme Court in State

v. Fritz, l05 N.J. 42 (1987). In order to prevail on a claim of ineffective

assistance of counsel, defendant must meet the two-prong test of 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 694. In

the plea bargain context, "a defendant must prove 'that there is a reasonable

probability that, but for counsel's errors, [he or she] would not have pled guilty

and would have insisted on going to trial[,]'" State v. Gaitan, 209 N.J. 339, 351

(2012) (first alteration in original) (quoting State v. Nuñez-Valdéz, 200 N.J. 129,

139 (2009)), and that "a decision to reject the plea bargain would have been

rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372

(2010).




                                                                           A-3829-18T1
                                        8
      We note that defendant's certification supporting his PCR petition did not

allege anything about incorrect advice by his attorney. It alleged the trial court

did not advise him about the deportation consequences of his plea. Because

defendant did not claim his attorney's performance was deficient, defendant did

not satisfy the first prong of Strickland.

      In 2009, our Supreme Court held a defendant can show ineffective

assistance of counsel by proving that his guilty plea resulted from "inaccurate

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

Nuñez-Valdéz, 200 N.J. at 143. In 2010, the United States Supreme Court

extended counsel's duty, holding that counsel had an affirmative duty to inform

a defendant entering a guilty plea regarding the relevant mandatory removal law

if it is "succinct, clear, and explicit . . . ." Padilla, 559 U.S. at 368. Accordingly,

in Padilla, the Supreme Court expanded the law to encompass both a duty not to

provide misinformation, and a duty to affirmatively explain the potential

removal consequences of a criminal guilty plea. Ibid. In 2013, the Supreme

Court clarified that Padilla imposed a new obligation and announced a new rule

of law. Chaidez v. United States, 568 U.S. 342, 349 (2013). Consequently, the

holding in Padilla only applies prospectively, and defendants whose convictions

became final prior to the holding in Padilla in 2010, cannot benefit from that


                                                                               A-3829-18T1
                                          9
holding. Chaidez, 568 U.S. at 358. In State v. Gaitan, 209 N.J. 339, 371 (2012),

our Supreme Court reaffirmed that an ineffective assistance of counsel claim

could be premised on counsel's false or affirmatively misleading advice about

the immigration consequences of a plea.

      Defendant's arguments concerning ineffective assistance of counsel must

be assessed under the law when he pleaded guilty. See State v. Santos, 210 N.J.

129, 143 (2012). Defendant did not certify what advice he was given by his

attorney that was misleading. Without this, defendant did not satisfy the first

prong of Strickland.

      Defendant did not demonstrate that "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[.]" State v. Maldon, 422

N.J. Super. 475, 486 (App. Div. 2011) (citing Padilla, 559 U.S. at 372). This

was the second requirement under Strickland. In this case, defendant had a

favorable plea deal. He was facing three five-year terms and a $15,000 fine on

each count. Under the plea deal, defendant received one three-year term and the

other counts of the indictments were dismissed.

      Having failed to show that defendant's attorney's performance was

deficient on the immigration issue or that he was prejudiced, the trial court was


                                                                         A-3829-18T1
                                      10
correct to determine that a prima facie case of ineffective assistance was not

shown nor was there a basis under Rule 3:22-12(a)(1)(A) to excuse defendant's

delay.

                                        C.

         Defendant argues that the trial court did not establish a factual basis

satisfying Rule 3:9-2 when his guilty plea was taken in 1999 and asks to

withdraw the guilty plea or for a remand for an evidentiary hearing. Defendant

raises an issue about his ability to understand the guilty plea proceedings

because his primary language is Vietnamese.

         Defendant did not file a direct appeal raising either of these issues. Post-

conviction relief is not a substitute for direct appeal. R. 3:22–3. "[A] defendant

may not employ post-conviction relief to assert a new claim that could have been

raised on direct appeal . . . or to relitigate a claim already decided on the merits

. . . ." Goodwin, 173 N.J. at 593. Under Rule 3:22–4(a), a petitioner may be

barred from asserting any claims he could have raised at trial or on direct appeal,

unless the judge concludes:

               (1) that the ground for relief not previously asserted
               could not reasonably have been raised in any prior
               proceeding; or




                                                                             A-3829-18T1
                                         11
            (2) that enforcement of the bar to preclude claims,
            including one for ineffective assistance of counsel,
            would result in fundamental injustice; or

            (3) that denial of relief would be contrary to a new rule
            of constitutional law under either the Constitution of
            the United States or the State of New Jersey.

      This rule is intended "to promote finality in judicial proceedings[.]" State

v. Echols, 199 N.J. 344, 357 (2009) (quoting State v. McQuaid, 147 N.J. 464,

483 (1997)).

      Both claims—that the factual basis for the guilty plea was inadequate

under Rule 3:9-2 and that defendant should have had an interpreter at the plea

hearing—could have been raised in a direct appeal. Having not done so, they

cannot be raised in a PCR. R. 3:22-4(a). There is no reason the claims could

not have been raised earlier. Defendant has not shown ineffective assistance of

counsel.   Defendant has not asserted any new rule of constitutional law.

Therefore, we are satisfied the PCR court correctly denied defendant's petition

for PCR relief.

                                     III.

      Defendant argues on appeal that the PCR court erred by denying his

request to vacate his guilty plea. The PCR court acknowledged defendant sought

to vacate the plea because he did not "understand the nature of the proceeding


                                                                          A-3829-18T1
                                      12
or that . . . [there was not] an adequate factual basis for [the] plea." We agree

with defendant that the PCR court did not separately analyze his request to

vacate his plea. We, therefore, are constrained to reverse and remand on that

basis.

         A request to withdraw a plea and a petition for PCR based on ineffective

assistance of counsel are "distinct, and governed by different rules of court."

State v. O'Donnell, 435 N.J. Super. 351, 368 (App. Div. 2014). "They must be

considered separately." Ibid. A motion to withdraw a plea may be made after

sentencing "if the movant shows a 'manifest injustice.'" Ibid. (quoting R. 3:21-

1). "By contrast, a petition for PCR must be filed within five years of the

challenged judgment of conviction, absent excusable neglect where enforcement

of the bar would result in a 'fundamental injustice.'" Id. at 368-69. (quoting R.

3:22-12(a)). "[C]onsideration of a plea withdrawal request," however, "can and

should begin with proof that before accepting the plea, the tri al court followed

the dictates of Rule 3:9-2." Id. at 369 (quoting State v. Slater, 198 N.J. 145, 155

(2009)).

         The PCR court denied this portion of defendant's request because issues

about the factual basis could have been raised in a direct appeal. See R. 3:22–

4(a). However, the PCR court did not determine for purposes of Rule 3:21-1,


                                                                           A-3829-18T1
                                        13
whether the factual basis provided at the plea hearing was adequate under Rule

3:9-2. As O'Donnell instructs, these are separate applications that should not be

conflated. 435 N.J. Super. at 371. As such, we reverse this portion of the order

and remand it to the PCR court for further analysis consistent with O'Donnell.

      Affirmed in part; reversed in part and remanded.




                                                                         A-3829-18T1
                                      14
