                                NOT FOR PUBLICATION WITHOUT THE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-0577-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CLARA E. SIERRA,

     Defendant-Appellant.
_______________________

                   Submitted June 30, 2020 – Decided July 20, 2020

                   Before Judges Vernoia and Rose.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Accusation No. 04-10-1295.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Monique D. Moyse, Designated Counsel, on
                   the brief).

                   Lyndsay V. Ruotolo, Acting Union County Prosecutor,
                   attorney for respondent (Milton Samuel Leibowitz,
                   Special Deputy Attorney General/Acting Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Clara Sierra, a non-citizen of the United States, appeals from a

November 30, 2017 order denying her petition for post-conviction relief (PCR)

without an evidentiary hearing. On appeal, defendant raises the following points

for our consideration:

                                  POINT ONE

            [DEFENDANT]    IS   ENTITLED   TO    AN
            EVIDENTIARY HEARING ON H[ER] CLAIM THAT
            HER ATTORNEY RENDERED INEFFECTIVE
            ASSISTANCE OF COUNSEL FOR GIVING HER
            AFFIRMATIVE    MISADVICE   ABOUT    THE
            DEPORTATION CONSEQUENCES OF HER
            [GUILTY] PLEA.

                                 POINT TWO

            THE PCR COURT ERRONEOUSLY RULED THAT
            [DEFENDANT]'S PETITION WAS TIME-BARRED
            BECAUSE ANY DELAY IN FILING THE PETITION
            WAS DUE TO EXCUSABLE NEGLECT AND
            THERE IS A REASONABLE PROBABILITY THAT
            IF . . . DEFENDANT'S FACTUAL ASSERTIONS
            WERE FOUND TO BE TRUE, ENFORCEMENT OF
            THE TIME BAR WOULD RESULT IN A
            FUNDAMENTAL INJUSTICE.

We reject these contentions and affirm.

      The facts and procedural history are straightforward and set forth at length

in the PCR judge's decision. In summary, on October 13, 2004, defendant pled

guilty to a one-count accusation, charging third-degree intent to distribute a


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                                        2
controlled dangerous substance (CDS), N.J.S.A. 2C:35-5. On April 8, 2005,

defendant was sentenced before another judge to time served and a one-year

probationary term; the remaining six drug charges were dismissed pursuant to

the terms of the negotiated plea agreement. Defendant did not file a direct

appeal.

      Thereafter, defendant violated probation on two separate occasions. In

May 2006, the original sentencing judge extended defendant's probationary term

on the first violation. In April 2007, the judge discharged defendant from

probation without improvement and sentenced her to a county jail term. In 2011,

the United States Department of Homeland Security advised defendant she was

subject to removal from the United States based on the judgment of conviction

(JOC) entered in April 2007.

      On November 14, 2016, defendant filed a pro se petition and brief for PCR

in the trial court. Defendant claimed she was denied the effective assistance of

counsel because her attorney failed to inform her about the immigration

consequences of her plea. Assigned counsel filed an amended petition and brief,

expounding upon those arguments. PCR counsel also asserted the petition was




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                                       3
not barred by Rule 3:22-121 because the JOC was amended on April 12, 2017 to

reflect the correct statute and charge, and defendant's mental health issues

"could amount to excusable neglect to overcome the time bar."

        Following argument on November 30, 2017, Judge Regina Caulfield2

issued a comprehensive oral decision, spanning twenty-eight transcript pages.

The PCR judge squarely addressed the issues raised in view of the governing

legal principles. Citing our decision in State v. Dugan, 289 N.J. Super. 15, 19-

20 (App. Div. 1996), the judge correctly rejected defendant's contention that the

amended JOC controlled the five-year time limitation prescribed by Rule 3:22-

12. Instead, as we recognized in Dugan, a PCR petition "must be filed within


1
    Rule 3:22-12 provides in pertinent part:

              (1) First Petition For Post-Conviction Relief. . . . [N]o
              petition shall be filed pursuant to this rule more than 5
              years after the date of entry pursuant to Rule 3:21-5 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 a fundamental injustice
              ....
2
  Judge Caulfield did not enter defendant's guilty plea or sentence defendant,
but the judge issued the amended JOC in August 2017.
                                                                          A-0577-18T1
                                         4
five years of entry of the judgment memorializing the conviction even if further

trial proceedings relating to the sentence are conducted during the interim period

. . . ." 289 N.J. Super at 20. Here, as the judge noted, the JOC was amended

only "to correct a clerical error."

      Judge Caulfield also aptly relied on our decision in State v. Brewster, 429

N.J. Super. 387, 399-400 (App. Div. 2013), to support her conclusion that

defendant failed to establish excusable neglect or that enforcement of the time

bar would result in a fundamental injustice. The judge observed that defendant

in the present matter – similar to the defendant in Brewster – answered, "yes" to

question seventeen of the plea form. That question asks: "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?"       See id. at 391.   Further, Judge Caulfield

recognized the plea judge expressly asked defendant whether she understood her

guilty plea "could have some effect on [her] continued residency in the United

States," to which defendant politely responded, "Yes, sir." Accordingly, the

PCR judge concluded Rule 3:22-12 applied, procedurally barring defendant's

petition.

      Nonetheless, Judge Caulfield also addressed the merits of defendant's

petition. Surveying the applicable law, the judge explained "a criminal defense


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                                         5
attorney's obligation to advise his or her non-citizen clients about the adverse

removal consequences of a guilty plea has evolved over time." Citing our

Supreme Court's decision in State v. Nunez-Valdez, 200 N.J. 129, 138 (2009),

the judge recognized that at the time defendant entered her guilty plea in 2004,

defense counsel was not required to advise her "about the removal consequences

of a guilty plea, but rather counsel had to refrain from providing, 'false or

misleading material information concerning the deportation consequences' of a

plea."

         The PCR judge further recognized it was not until March 2010, that the

United States Supreme Court in Padilla v. Kentucky, 559 U.S. 356, 368 (2010),

imposed upon defense attorneys an affirmative duty to inform their clients of

mandatory deportation consequences attendant to their guilty pleas when those

consequences are "succinct, clear, and explicit."    As the PCR judge noted,

however, the affirmative obligation imposed by Padilla announced a new rule of

law and is not applied retroactively. See State v. Gaitan, 209 N.J. 339, 367

(2012).     Accordingly, the judge determined defendant's assertion that plea

counsel failed to inform her of the mandatory removal consequences of her

guilty plea did not establish a prima facie claim that her counsel's performance




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                                        6
was deficient when her plea was entered. See ibid.; see also Strickland v.

Washington, 466 U.S. 668, 687-88 (1984); State v. Fritz, 105 N.J. 42, 52 (1987).

      Finally, the judge found defendant "failed to demonstrate prejudice[,]"

i.e., "that but for counsel's errors she would not have pled guilty and would have

insisted on going to trial." See Nunez-Valdez, 200 N.J. at 139. The judge

elaborated:

              [D]efendant was aware of the adverse removal
              consequences of her guilty plea, both through the plea
              form and through her plea colloquy with [the plea
              judge]. Despite her knowledge about the risk of
              removal she pled guilty . . . .

                    ....

                     Further, . . . defendant has failed to convince this
              court that a decision to reject the plea would have been
              reasonable.

                    ....

              The plea agreement negotiated by [plea counsel]
              resulted in a favorable plea deal, which led to the
              dismissal of several serious charges, including two
              charges of possession of CDS with the intent to
              distribute same within a school zone. If convicted of
              those charges, . . . defendant faced a mandatory
              minimum three-year state prison sentence.         See
              N.J.S.A. 2C:35-7.

                    Instead, [plea counsel] negotiated a plea where
              [defendant] avoided state prison, and received a


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                                          7
            sentence of time served and non-custodial probation
            ....

Finding defendant failed to establish a prima facie claim of ineffective

assistance of counsel, the PCR judge correctly denied defendant's request for

an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462 (1992).

      Because defendant's contentions on appeal challenge the PCR judge's

legal conclusions, our review is de novo. State v. Parker, 212 N.J. 269, 278

(2012).   Having conducted that review here, we conclude defendant's

contentions lack sufficient merit to warrant further discussion in our written

opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons set forth by

Judge Caulfield in her well-reasoned decision.

      Affirmed.




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