                        NOT FOR PUBLICATION WITHOUT THE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-4728-15T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ELVIN J. FRIAS,

     Defendant-Appellant.
____________________________

              Submitted April 17, 2018 – Decided July 13, 2018

              Before Judges Fisher and Sumners.

              On appeal from Superior Court of New Jersey,
              Law Division, Passaic County, Accusation No.
              07-11-1098.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Adam W. Toraya, Designated
              Counsel, on the brief).

              Camelia    M.    Valdes,   Passaic     County
              Prosecutor, attorney for respondent (Marc A.
              Festa,   Senior  Assistant   Prosecutor,   of
              counsel and on the brief).

PER CURIAM

        On April 25, 2008, after pleading guilty to an accusation

of third-degree possession of controlled dangerous substances

(cocaine) with intent to distribute within 1,000 feet of school
property, defendant Elvin J. Frias – a non-citizen of the United

States – was sentenced in accordance with his plea agreement to

time served effective his plea date and a five-year term of

probation.     He did not appeal his conviction.           However, over

six-and-a-half years later on September 29, 2015, upon facing

deportation proceedings due to his conviction,1 defendant filed a

post-conviction   relief   (PCR)   petition   –   beyond   the   five-year

time limitation under Rule 3:22-12(a)(1) – alleging ineffective

assistance of counsel.

      During an evidentiary hearing before Judge Adam E. Jacobs,

in   which   defendant   was   provided   a   Spanish    interpreter,     he

testified that counsel failed to advise him of the immigration

consequences of his plea.       He further contended counsel did not

request that the trial court provide him with an interpreter at

his plea hearing; thus, due to his limited English, he did not

read the plea form questions.          This alleged oversight included

plea form question 17, which asked: "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" next to this question.       His colloquy with the plea court

indicated he wanted to plead guilty despite knowing that as a

1
   Defendant was apprehended by the United States Immigration and
Customs Enforcement, and is currently being held in custody.


                                   2                              A-4728-15T4
non-citizen of the United States, he could be deported due to

his conviction and that it could affect his ability to become a

citizen in the future should he so desire.                           Counsel did not

testify     because     he     had      no       recollection       of    representing

defendant.

       Judge Jacobs issued an order denying PCR together with a

written    decision     finding      that        defendant's      petition      was   both

untimely and substantively without merit.                       The judge determined

that defendant's PCR petition was procedurally deficient because

he filed it well beyond the five-year time limit and that, in

order relax the time bar as prescribed by Rule 3:22-12(a)(1)(A),

he    failed    to   assert    facts    indicating          the   delay   was     due    to

excusable neglect.

       Notwithstanding the time bar, Judge Jacobs addressed the

merits    of    defendant's     petition          and   found     that   he    failed    to

demonstrate he had received ineffective assistance of counsel.

The    judge     recognized      that        because       defendant's        convictions

predated the Supreme Court's seminal 2010 opinion in Padilla v.

Kentucky,      559   U.S.     356,   367         (2010),    concerning        deportation

consequences for a criminal defendant, his claims are governed

by State v. Nunez-Valdez, 200 N.J. 129, 143-44 (2009).                                Under

those pre-Padilla standards, the judge noted that a defendant

seeking        relief    based       upon          post-conviction            deportation

                                             3                                   A-4728-15T4
consequences can only prevail upon a demonstration that counsel

affirmatively provided misleading advice about such consequences

flowing from a guilty plea.   Id. at 143.   Counsel therefore had

no duty to inform a client of such consequences; representation

was deemed constitutionally ineffective only if misinformation

was given to the client about the immigration consequences of

pleading guilty.     State v. Gaitan, 209 N.J. 339, 375 (2012).

Considering that defendant did not allege counsel misadvised him

about the immigration consequences of his plea, coupled with his

review of the plea transcript2 and assessment of defendant's

evidentiary hearing testimony, the judge found counsel did not

provide ineffective assistance.

      On appeal, defendant argues:

         POINT ONE

         THE PCR COURT'S ORDER SHOULD BE REVERSED AND
         THE MATTER REMANDED TO THE [PCR] COURT TO
         ALLOW THE DEFENDANT TO VACATE HIS GUILTY
         PLEA   BECAUSE  THE   PCR  COURT   ERRED  IN
         DETERMINING THAT DEFENDANT DID NOT MEET HIS


2
   Defendant, nineteen years of age at the time of his plea,
testified that he had a ninth grade education; that he read and
wrote English; that he understood he had a right to go to a jury
trial; that he understood the charges and the terms of the plea
offer, which he discussed with counsel; that he signed,
initialed, and understood the plea form; that no one forced,
coerced, or encouraged him to plead guilty; and that he was
satisfied with the services of his counsel.



                                  4                      A-4728-15T4
            BURDEN UNDER THE STRICKLAND3 STANDARD                              OF
            INEFFECTIVE ASSISTANCE OF COUNSEL.

            POINT TWO

            THE [PCR] COURT MISAPPLIED ITS DISCRETION IN
            APLLYING   [RULE]    3:22-12   BECAUSE   THE
            SIGNIFICANCE OF THE ISSUES RAISED, AND THEIR
            IMPACT ON THE INTEGRITY OF THE CRIMINAL
            JUSTICE SYSTEM, WARRANTED A RELAXATION OF
            THE FIVE-YEAR TIME BAR.

We    conclude        these       arguments         are     unpersuasive       and     affirm

substantially for the reasons set forth by Judge Jacobs in his

cogent decision.         We add the following brief comments.

        A late filing after the five-year time limitation period

may be considered if there is excusable neglect for the late

filing    and     that        a    fundamental            injustice     will    result       if

defendant's claims are not considered on their merits.                               State v.

Brewster,       429    N.J.       Super.   387,      400     (App.    Div.     2013).        In

determining      whether          to   relax       the    time   bar,   a    court     should

consider "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."                 State v. McQuaid, 147 N.J. 464, 485

(1997) (quoting State v. Mitchell, 126 N.J. 565, 580 (1992)).

Absent    compelling          extenuating          circumstances,        the    burden       to


3
     Strickland v. Washington, 466 U.S. 668, 687, 694 (1984).


                                               5                                     A-4728-15T4
justify   filing   a   petition     after    the    five-year      period   will

increase with the extent of the delay.               State v. Afanador, 151

N.J. 41, 52 (1997).           "Where the deficient representation of

counsel affected 'a determination of guilt or otherwise wrought

a miscarriage of justice,' a procedural rule otherwise barring

post-conviction relief may be overlooked to avoid a fundamental

injustice."    Brewster, 429 N.J. Super. at 400 (quoting Mitchell,

126 N.J. at 587).

     Combining     these     principles     with    our   approval    of    Judge

Jacobs' conclusion4 that defendant was advised of the immigration

consequences of his plea further supports our agreement with the

judge   that   there   was    no   excusable       neglect   for   defendant's

failure to file a timely PCR claim, and therefore, no injustice

would result in not relaxing the time bar.

     Affirmed.




4
    We defer to a judge's findings that are "substantially
influenced by [the trial judge's] opportunity to hear and see
the witnesses and to have the 'feel' of the case, which a
reviewing court cannot enjoy." State v. Rockford, 213 N.J. 424,
440 (2013) (alteration in original) (quoting State v. Robinson,
200 N.J. 1, 15 (2009)).


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