                                NOT FOR PUBLICATION WITHOUT THE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-5912-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

KHOI N. PHAM,

     Defendant-Appellant.
_________________________

                    Argued September 18, 2019 – Decided September 30, 2019

                    Before Judges Fuentes and Mayer.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Hunterdon County, Accusation No. 09-12-
                    0408.

                    Eric M. Mark argued the cause for appellant (Law
                    Office of Eric M. Mark, attorneys; Eric M. Mark, on the
                    briefs).

                    Jeffrey L. Weinstein, Special Deputy Attorney
                    General/Acting Assistant Prosecutor, argued the cause
                    for respondent (Michael J. Williams, Acting Hunterdon
                    County Prosecutor, attorney; Jeffrey L. Weinstein, on
                    the brief).
PER CURIAM

      Defendant Khoi N. Pham appeals from the denial of his petition for post-

conviction relief (PCR) without an evidentiary hearing. We affirm.

      Defendant was arrested and charged with various drug crimes in

September of 2009, including third-degree possession of cocaine, third-degree

possession of cocaine with intent to distribute, possession of marijuana, and

possession of drug paraphernalia.       Defendant retained private counsel in

connection with these charges and, in December 2009, entered into a negotiated

agreement with the State through which he pled guilty to third-degree possession

of cocaine. The remaining charges were dismissed and the State recommended

defendant be sentenced to a two-year term of probation.

      Prior to sentencing, defendant signed the plea forms, which included

questions regarding his immigration status. Defendant expressly acknowledged

that he could face deportation if he was not a United States citizen. In his signed

plea forms, defendant stated understood the consequences of his plea and was

satisfied with the advice provided by his counsel.

      On January 15, 2010, defendant was sentenced to a two-year term of

probation. Defendant did not appeal his sentence. Defendant successfully




                                                                           A-5912-17T4
                                        2
completed his probationary term and satisfied all conditions imposed as part of

his probation.

      On September 29, 2017, more than seven years after he was sentenced,

defendant was detained by the Department of Homeland Security-Customs and

Border Control at the Houston airport upon returning from a trip abroad.

Defendant claims he first discovered the immigration consequences of his

conviction at that time. He retained counsel and filed a PCR petition alleging

ineffective assistance of counsel.

      The PCR judge heard the arguments of counsel and denied defendant's

petition on May 22, 2018 in a thorough and comprehensive thirty-one page

written opinion. The judge carefully considered defendant's PCR arguments and

concluded he failed to demonstrate excusable neglect or a fundamental injustice

to warrant relaxation of the five-year time requirement for filing a PCR petition.

See R. 3:22-12(a).

      On appeal, defendant raises the following arguments:

            Point I

            STANDARD OF REVIEW

            Point II

            THE TRIAL COURT ERRED IN NOT GRANTING
            AN EVIDENTIARY HEARING BECAUSE MR.

                                                                          A-5912-17T4
                                        3
PHAM ESTABLISHED A PRIMA FACIE CASE OF
INEFFECTIVE ASSISTANCE OF COUNSEL AND
AN EVIDENTIARY HEARING IS NEEDED TO
SUPPLEMENT THE TRIAL RECORD.

Point III

POST-CONVICTION RELIEF.

A. The Five-Year Procedural Bar is Not Absolute.

1. Petitioner's Delay in Filing Was Not Neglectful.

2. If the Court Finds Petitioner's Failure to Timely File
Was Neglectful, Such Neglect Was Excusable.

3. Enforcement of the Time Bar Would Result in a
Fundamental Injustice.

B. Ineffective Assistance of Counsel.

1. Defense Counsel Wrongly Advised of the
Immigration Consequences.

2. Defense Counsel was Ineffective because he Failed
to Discuss PTI With Mr. Pham or to Apply Mr. Pham
to PTI.

i. Mr. Davidson was obligated to submit a PTI
application so the prosecutor's objections would have at
least been formalized as the basis of an appeal; Merely
informally asking a prosecutor about PTI is not an
application to PTI and does not meet the minimum
requirement of competent or zealous advocacy.

ii. Mr. Pham was eligible for PTI because this is his
first offense and it is a third-degree offense.


                                                            A-5912-17T4
                           4
            3. Defense Counsel was Suspended from Practicing
            Law in the State of New Jersey.

            C. Cumulative Effects.

            Point IV

            THE TRIAL COURT MADE NUMEROUS
            SPECULATIONS TO FACTS OUTSIDE THE
            RECORD, THUS THE MATTER SHOULD BE
            REMANDED FOR AN EVIDENTIARY HEARING.

      Based on our review of the record and applicable legal principles, we

affirm substantially for the reasons stated by Judge Angela F. Borkowski in her

comprehensive May 22, 2018 written opinion.

      Affirmed.




                                                                       A-5912-17T4
                                      5
