                                NOT FOR PUBLICATION WITHOUT THE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-0467-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

YEISSON ANTONIO
CONTRERAS-RIJO, a/k/a
YEISSON CABRERA-RIJO,
YEISSON CABRERA, and
YEISSON RIJO,

     Defendant-Appellant.
_____________________________

                   Submitted October 10, 2019 – Decided December 4, 2019

                   Before Judges Nugent and Suter.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Passaic County, Indictment No. 12-03-0183.

                   Regis Fernandez, attorney for appellant.

                   Camelia M. Valdes, Passaic County Prosecutor,
                   attorney for respondent (Christopher W. Hsieh, Chief
                   Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Yeisson A. Contreras-Rijo appeals the denial of his petition for

post-conviction relief (PCR), claiming his attorney did not advise him about the

immigration consequences of his guilty plea. He argues his lack of knowledge

constituted "excusable neglect" for not filing the petition within five years of his

conviction. We affirm the denial of his PCR petition.

                                         I.

      Defendant was arrested after he took a piece of wood from his truck and

swung it at a Home Depot loss prevention officer, who had confronted defendant

about making returns of merchandise that were falsified.           Defendant was

indicted for first-degree robbery (count one), N.J.S.A. 2C:15-1, third-degree

possession of a weapon (wooden board) for an unlawful purpose (count two),

N.J.S.A. 2C:39-4(d), fourth-degree unlawful possession of a weapon (count

three), N.J.S.A. 2C:39-5(d), and third-degree terroristic threats (count four),

N.J.S.A. 2C:12-3(a) and (b).

      Defendant pleaded guilty to count two. He signed the standard plea form,

answering that he was not a United States citizen 1 and acknowledging the guilty

plea may result in his removal from the United States. He answered "yes" that


1
   Defendant is a citizen of the Dominican Republic. He has been a legal
permanent resident of the United States since 2008.
                                                                            A-0467-18T4
                                         2
he understood he had the right to seek advice from an immigration attorney, "no"

that he had not discussed the immigration consequences of his plea with an

attorney and "no" that he did not want the opportunity to do so. He answered

question 17f at the hearing—because it had been left blank—acknowledging

"yes" that he was advised of his right to seek individualized legal advice on

immigration consequences.

      The trial court asked defendant at the plea hearing whether he was subject

to a detainer from U.S. Immigration and Customs Enforcement (Immigration).

His attorney advised the court that he did not think there was a detainer, but

defendant told him that Immigration reviewed his documents at the jail . The

trial judge reviewed the plea form immigration questions with defendant:

            THE COURT:        All right. Mr. Contreras, just to go
                              over that section of questions with
                              you briefly. You do understand that
                              even though you have legal
                              permanent residency that you could
                              be deported because of this
                              conviction.

            DEFENDANT:        Yes.

            THE COURT:        Your lawyer's informed me that
                              immigration went and spoke with
                              you, looked at your documents at the
                              jail. And as far as he knows, based
                              on what you've told him, there

                                                                        A-0467-18T4
                                       3
             doesn't seem to be any action toward
             deportation being taken against you
             at this time. But do you understand
             that that could change at any time?
             Immigration might take an interest in
             having      you     deported,    the
             Immigration Agency.

DEFENDANT:   Yes.

THE COURT:   And having been convicted of a
             crime it is certainly possible that that
             would occur. If not now or soon,
             sometime in the future. Do you
             understand that?

DEFENDANT:   Yes.

THE COURT:   Okay. But you've indicated in your
             forms that you don't want to speak
             with an immigration lawyer even
             though you understand you have the
             right to do so?

DEFENDANT:   Yes.

THE COURT:   Is that right?

DEFENDANT:   I don't want that.

THE COURT:   Okay. Has your family spoken to an
             immigration lawyer on your behalf,
             do you know?

DEFENDANT:   No. They have not talked to anyone.



                                                        A-0467-18T4
                      4
      Defendant asked the trial court whether his guilty plea would affect his

ability to become a citizen in the future. The court acknowledged it might.

            THE COURT:          It might, yes. Knowing that do you
                                want to consult an immigration
                                lawyer before deciding whether to
                                proceed with this guilty plea?

            DEFENDANT:          No.

            THE COURT:          Okay. All right. I don't know that
                                they will bar you from citizenship.
                                Again you would need an
                                immigration lawyer to give you
                                advice in that regard, but it is
                                certainly possible.      Do you
                                understand that?

            DEFENDANT:          Yes, I understand.      It's all fine;
                                correct.

            THE COURT:          So even knowing that it's your wish
                                at this time to proceed now with your
                                guilty plea and not consult an
                                immigration specialist; correct?

            DEFENDANT:          Yes.

      After defendant acknowledged the offense, the court accepted his plea

finding that it was "entered freely and voluntarily. Defendant[] waived his right

to a trial and related rights freely and voluntarily. He's done so with the advice

of counsel and there's a factual basis for the plea."


                                                                          A-0467-18T4
                                         5
        On May 24, 2012, defendant was sentenced to time served—then 251

days—rather than the recommended 364 day custodial sentence, and to a two-

year term of probation. He did not file an appeal from the guilty plea or

sentence.

        On April 17, 2014, defendant received notice from the Department of

Homeland Security to appear for a removal proceeding under Section 240 of the

Immigration and Nationality Act. 8 U.S.C. § 1229a. It alleged that under

Section 237(a)(2)(A)(i) of the Act 2, defendant had been "convicted of a crime

involving moral turpitude committed within five years after admission for which

a sentence of one year or longer may be imposed." He was required to show

cause why he should not be deported.

        Defendant filed this PCR petition nearly four years later, on April 13,

2018. In his supporting affidavit, he alleged his criminal attorney never advised

him of the immigration consequences of pleading guilty.         He claimed his

attorney "simply told me not to worry about it on the day of my guilty plea."

Defendant did not want to remain in jail any longer. He alleged his criminal

attorney told him to say "no" in response to the judge's question about whether



2
    8 U.S.C. § 1227(a)(2)(A)(i).
                                                                         A-0467-18T4
                                       6
he wanted to speak to an immigration lawyer "because I would continue to be

detained until I spoke to an immigration attorney. Thus, when the Judge asked

me if I knew I could be deported[,] I said yes." He claimed his attorney did not

visit him in jail. Defendant alleged that if his criminal attorney had met 3 with

him and inquired about his immigration status, consulted with an immigration

attorney, or conducted research, he would "not have pled guilty or at least have

sought out other possible guilty pleas." He claimed he did not know there were

immigration consequences of [his] plea until he was notified in June 2014 to

appear in immigration court.

      Defendant's PCR petition was denied on August 21, 2018, by the same

trial judge who heard the plea. The court found that defendant "acknowledged

the risk of deportation before entering his guilty plea." It had advised defendant

that deportation was "certainly possible[,]" which "compel[ed] [p]etitioner's

serious consideration of [the] deportation risk." His trial counsel "never made

any statements . . . that deportation was unlikely." The PCR court found

defendant was not misinformed about his deportation risk; he was told it was

"certainly possible."   At the plea hearing, defendant was asked on three


3
  During the plea hearing, defendant acknowledged meeting with his attorney
on October 5, 2011, which was six months before his guilty plea.
                                                                          A-0467-18T4
                                        7
occasions whether he wanted to speak with an immigration attorney but

declined. The court believed there was no indication that defendant "would not

have pleaded guilty if he had known that the risk of deportation was a certainty."

The court found that defendant's plea was "entered knowingly, voluntarily and

intelligently" because he:

             had sufficient knowledge of his deportation risks,
             evidenced by his decision not to consult with an
             immigration attorney, despite repeated attempts by the
             Court to confirm that he was aware of his risk of
             deportation. There [was] insufficient evidence showing
             that, but for the advice of his trial counsel, [p]etitioner
             would not have pleaded guilty.

      The PCR court rejected defendant's claim that his petition should be

treated as timely based on excusable neglect.          Defendant understood the

consequences of his guilty plea.       He was "in fact, aware of the potential

immigration consequences well before his [n]otice to [a]ppear in immigration

court was served . . . ."

      On appeal, defendant raises the following issues:

             I.   COUNSEL DID NOT ADVISE THE
             PETITIONER OF THE POSSIBLE IMMIGRATION
             CONSEQUENCES OF HIS GUILTY PLEA
             RESULTING IN A GUILTY PLEA THAT WAS NOT
             ENTERED KNOWINGLY AND INTELLIGENTLY
             CAUSING PREJUDICE TO THE DEFENDANT-
             PETITIONER[.]

                                                                           A-0467-18T4
                                         8
             II.  THE DEDENDANT-PETITIONER'S FAILURE
             TO FILE PCR WITHIN [FIVE] YEARS IS SUBJECT
             TO EXCUSABLE NEGLECT BECAUSE HE WAS
             NOT AWARE OF HIS DEPORTATION RISK UNTIL
             PLACED IN REMOVAL PROCEEDINGS LESS
             THAN [FIVE] YEARS AGO[.]

                                         II.

      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, 687 (1984), and adopted by our Supreme Court in

State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on an ineffective

assistance of counsel claim, defendant must meet a two-prong test by

establishing that: (l) counsel's performance was deficient and the errors made

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 687.

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

reasonable probability that, but for counsel's errors, . . . [he] would not have pled

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


                                                                             A-0467-18T4
                                         9
351 (2012) (quoting State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009)). He must

also show that "a decision to reject the plea bargain would have been rational

under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372 (2010).

      Defendant alleges his trial counsel misinformed him about the

immigration consequences of pleading guilty because he did not inform him that

deportation was a "practical certainty." Because defendant's plea was entered

on April 9, 2012, the standards set forth in Padilla applied. 559 U.S. at 356.

      Under Padilla "to satisfy a defendant's Sixth Amendment right to effective

assistance of counsel, counsel has an affirmative obligation to inform a client-

defendant when a plea places the client at risk of deportation." Gaitan, 209 N.J.

at 356 (citing Padilla, 559 U.S. at 374). Our Supreme Court explained that

following Padilla, "counsel is duty-bound to provide a client 'with available

advice about an issue like deportation' and declared that 'the failure to do so'

satisfies the attorney-deficiency prong in Strickland's analysis." Ibid. (quoting

Padilla, 559 U.S. at 371). However, "immigration law is often complex, and the

consequences of a conviction are often far from clear." State v. Blake, 444 N.J.

Super. 285, 295 (App. Div. 2016) (citing Padilla, 559 U.S. at 369). "[T]he

specificity and definiteness of counsel's required advice varies with the clarity

of the immigration law itself." Ibid.

                                                                         A-0467-18T4
                                        10
      Defendant claims he was not properly advised by his counsel, suggesting

that counsel should have inquired into his immigration status, consulted with an

immigration attorney and conducted research in order for defendant to make an

informed decision about pleading guilty.         He argues he was misinformed

because deportation was a practical certainty.

      We agree with the trial judge that defendant had "sufficient knowledge of

his deportation risks . . . ."    The transcript of the plea hearing showed

unequivocally that defendant was advised, based on his plea, that it was certainly

possible he might be deported. He was asked three times whether he wanted to

discuss the matter with an immigration attorney but declined to do so. He was

aware prior to his plea that Immigration had "checked his papers" while he was

detained; therefore, he knew that Immigration was looking into his charges.

Defendant showed concern, asking the court whether his conviction would affect

his ability to become a citizen. The judge advised it might, asking defendant

again if he wanted to consult with an immigration attorney, to which defendant

again declined.

      Counsel is not required to "use 'magic words'—'mandatory deportation' or

'presumptively mandatory deportation'—to fulfill his obligation to provide

effective assistance to a non-citizen client." Blake, 444 N.J. Super. at 299.

                                                                          A-0467-18T4
                                       11
Defendant was told the plea may affect his immigration status.          Counsel

reviewed the plea form with defendant. That "form accounts for those cases

where removal is virtually inevitable[,]" advising a defendant that he can obtain

"individualized advice from an attorney" about his situation. Id. at 297-98.

Defendant repeatedly turned this down.

      The record does not support defendant's claim he was misinformed about

the immigration risks. He did not mention this to the judge at his plea or

sentencing. Defendant had concerns because he asked the judge about the

consequences of pleading guilty on any future citizenship application. He did

not claim he was misled by his attorney until he filed this PCR petition in 2018,

which was nearly four years after he became aware that Immigration sought his

removal. This record is not consistent with his claim that he was misinformed

about the immigration consequences.        We agree with the trial court that

defendant's attorney was not deficient because he was aware of the risk of

deportation.

      Defendant also 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

                                                                         A-0467-18T4
                                      12
was the second requirement under Strickland. In this case, defendant had a

favorable plea deal that would release him from jail with time served and two

years' probation. He was facing a five-year sentence and $15,000 fine on the

unlawful use of a weapon charge. The other counts of the indictment all were

dismissed. He alleged he would have sought out other possible pleas, but there

is no indication that any other pleas were offered or available.

      We agree with the trial court that defendant's April 13, 2018 PCR petition

was filed more than five years after his May 24, 2012 judgment of conviction.

It was out of time and did not show "excusable neglect" under Rule 3:22-12

(a)(1)(A). A first PCR petition shall not be filed:

            more than [five] years after the date of entry . . . of the
            judgment of conviction that is being challenged unless:

                   (A) it alleges facts showing that the delay beyond
            said time was due to defendant's excusable neglect and
            that 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
            fundamental injustice[.]

            [R. 3:22-12(a)(1)(A).]

      Defendant was aware that Immigration reviewed his file prior to his plea.

He had concern enough to ask if the plea would affect an application for

citizenship. He was advised that the plea could affect his immigration status.

                                                                          A-0467-18T4
                                       13
Defendant rejected the suggestion to consult with an immigration attorney about

his specific situation. We have concluded that Strickland was satisfied. On this

record, there simply are no facts that rise to the level of excusable neglect within

the meaning of this Rule.

      Affirmed.




                                                                            A-0467-18T4
                                        14
