                                NOT FOR PUBLICATION WITHOUT THE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-2948-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MARIANO RODRIGUEZ,

     Defendant-Appellant.
________________________

                    Submitted January 23, 2019 – Decided May 13, 2019

                    Before Judges Rothstadt and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment Nos. 00-04-
                    0396 and 94-06-0638.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Alison Perrone, Designated Counsel, on the
                    brief).

                    Michael A. Monahan, Acting Union County
                    Prosecutor, attorney for respondent (Frank L.
                    Valdinoto, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
        Defendant Mariano Rodriguez appeals from the Law Division's August 7,

2017 denial of his petition for post-conviction relief (PCR) without an

evidentiary hearing. In his petition, defendant argued that his plea counsel in

1994 and in 2000 failed to properly advise him of the immigration consequences

of his plea. The PCR judge determined that the petition was time–barred and

defendant failed to establish a prima facie claim of ineffective assistance of

counsel (IAC). For the reasons that follow, we affirm.

        In 1994, defendant pled guilty to third-degree possession of controlled

dangerous substances (CDS) with intent to distribute, N.J.S.A. 2C:35-5(a)(1)

and N.J.S.A. 2C:35-5(b)(3).1 Pursuant to his plea agreement with the State, on

November 15, 1994, the trial court sentenced him to a non-custodial,

probationary sentence.

        In 2000, defendant pled guilty to possession of CDS (cocaine) with intent

to distribute within 1,000 feet of a school zone, N.J.S.A. 2C:35-7. During the

plea hearing, defendant confirmed under oath that he attended college, could

read, write, and understand English, he reviewed the plea form with counsel,

who answered all of his questions, the form was accurate, and he read and

understood it before he signed the completed form. On October 13, 2000, the


1
    Neither party has supplied us with a transcript of the 1994 plea hearing.
                                                                           A-2948-17T2
                                         2
trial court sentenced defendant in accordance with his plea agreement to a five-

year term of imprisonment with thirty months of parole ineligibility. Defendant

did not file a direct appeal from either of his convictions or sentences.

         At the time defendant pled guilty to the two offenses, he was a Cuban

national and not a citizen of the United States. On both plea forms, defendant

circled "N/A" in response to question seventeen, 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?"

         In 2016 defendant filed his first petition for PCR, claiming he received

IAC from his plea counsel in 1994 and 2000. A brief and amended petition were

subsequently submitted on his behalf. In his amended petition, he stated that

because of the IAC, he was unaware that his 1994 and 2000 convictions could

lead to his deportation. According to defendant, plea "counsel gave [him]

misinformation and ill-advice concerning the immigration consequences of [his]

plea."

         Defendant did not state what his attorney said to him about the

immigration consequence of his plea. Instead, he certified to the following:

               When I met with my first attorney in 1994, I was not
               aware that I would be facing any immigration
               consequences as a result of my guilty plea. If I had


                                                                             A-2948-17T2
                                         3
            known that I faced additional risks, I would not have
            pled guilty.

            When I met with my trial attorney in 2000, I had
            specific discussions with my attorney about my
            background and my citizenship. My attorney was
            aware that I was born in Cuba and not a U.S.
            Citizenship [sic]. After speaking with my attorney, I
            believed that I would not be deported.

            If I had known that I was pleading guilty to an
            aggravated felony I would not have entered a guilty
            plea to any of these charges. If I had known that my
            deportation was mandatory, I would have taken my case
            to trial.

      The PCR court considered the parties oral arguments on August 7, 2017.

At that hearing, defendant argued that his petition was not time-barred under

Rule 3:22-12(a)(1) because he was not advised about deportation consequences.

He acknowledged that his case was pre-Padilla v. Kentucky, 559 U.S. 356

(2010) so the issue concerned misadvice of counsel and whether an evidentiary

hearing should be granted to determine why counsel selected "N/A" for question

seventeen. He noted that on the uniform defendant intake form, he specifically

indicated in 1999 that he was not a U.S. citizen.

      After considering the parties' arguments, Judge Alberto Rivas denied

defendant's petition, placing his reasons on the record.    Initially, he found

defendant's petition to be time-barred under Rule 3:22-12 because the fact that


                                                                       A-2948-17T2
                                        4
deportation policies changed after 1994 and 2000, when Cuban nationals were

not actively being deported, did not give rise to a basis for pursuing a PCR claim.

      Judge Rivas then considered whether defendant established a reason under

State v. Mitchell, 126 N.J. 565, 574 (1992) to relax the Rule's time bar. He

noted that the Rule "is not rigid" and the application of its time bar had to be

considered in light of "the extent and cause of the delay [in seeking PCR relief,]

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."

      The judge found that the first two factors weighed heavily in favor of the

State, finding that the extent of the delay was significant, given defendant's

indictments were twelve and eighteen years after the Rule's deadline and that it

would be "difficult if not impossible" for the State to prosecute the cases given

the extreme delay. Turning to defendant's reasons for delaying in filing a

petition, the judge found that defendant did not establish any excusable neglect

by delaying until his alleged discovery in 2016 that he might be deported based

on his 1994 and 2000 convictions.

      Judge Rivas weighed defendant's explanation for the delay and the

prejudice to the State against defendant's claim that an injustice occurred. At


                                                                           A-2948-17T2
                                        5
the outset, the judge found that because defendant was an alien at the time, he

could be deported under federal law because he was convicted of aggravated

felonies that included "trafficking of a controlled substance." However, the

judge noted that Cuban immigrants were treated differently from other aliens

because of the strained relations between the United States and Cuba and as

such, it was unlikely that defendant would have actually been deported. Citing

to State v. Garcia, 320 N.J. Super 32, 35 (App. Div. 1999) and Clark v. Suarez

Martinez, 543 U.S. 371, 386 (2004), Judge Rivas stated that "in the late 1990s

and in the 2000s, Cuba did not accept deportees . . . ."

         Significantly, the judge observed that "defendant [did] not provide any

documentation to confirm that deportation proceedings [had] begun against him

[and] even if deportation proceedings [had] begun against him because he’s

Cuban, it’s unclear what his future would look like." The judge concluded that

it was likely that defendant would not actually be removed from the United

States and therefore his discovery of the possibility of his deportation in 2016

did not give rise to an injustice warranting the relaxation of the time bar.

         Judge Rivas also addressed the merits of defendant's IAC claims as to both

pleas.     Beginning with defendant's 1994 plea, the judge observed that

defendant's certification filed in support of his petition did not contain a


                                                                           A-2948-17T2
                                          6
statement that defendant's plea counsel misadvised him about any immigration

consequences of his plea. The only evidence defendant relied upon was that his

answer to question seventeen on the plea form was "N/A." Citing to State v.

Gaitan, 209 N.J. 339 (2012), the judge concluded that defendant's proof did not

satisfy the pre-2010 requirement that defendant must come forward with

evidence that counsel was ineffective by providing false or misleading

information regarding deportation consequences of a guilty plea.

      Judge Rivas also distinguished defendant's petition from that in Garcia

where a Cuban defendant circled "N/A" on question seventeen based on an

attorney's affirmative mis-advice to his client. In that case, we found that the

defendant established a prima facie case of misinformation because he selected

"N/A" to question seventeen based on his attorney's advice that he would not be

deported. Garcia, 320 N.J. Super. at 336, 340. Here, Judge Rivas concluded

that defendant did not offer similar evidence as defendant only stated that he

was not aware he could face immigration consequences without identifying his

plea counsel's statements about his plea's immigration consequences. Applying

that evidence to the requirements under Strickland v. Washington, 466 U.S. 668

(1984) for establishing a prima facie claim of IAC, the judge concluded that

defendant failed to meet his burden.


                                                                        A-2948-17T2
                                       7
      The judge reached the same conclusion as to defendant's 2000 plea. He

observed that the same standards applied in 2000 as in 1994 relating to an

attorney's obligation not to misadvise his or her client. He also noted that

defendant informed counsel that he was not a U.S. Citizen but at the time,

attorneys were not required to advise their clients of collateral consequences,

including those related to immigration.      The judge again concluded that

defendant failed to allege enough facts to establish a prima facie case for IAC.

This appeal followed.

      Defendant presents the following issues for our consideration in his

appeal.

            POINT I

            THE TRIAL COURT ERRED IN CONCLUDING
            THAT DEFENDANT'S PETITION FOR POST-
            CONVICTION RELIEF WAS TIME BARRED
            BECAUSE DEFENDANT'S FAILURE TO FILE HIS
            PETITION WITHIN FIVE YEARS OF HIS
            CONVICTION WAS DUE TO EXCUSABLE
            NEGLECT AND ENFORCEMENT OF THE TIME
            BAR WOULD RESULT IN A FUNDAMENTAL
            INJUSTICE.

            POINT II

            DEFENDANT    WAS   ENTITLED   TO   AN
            EVIDENTIARY HEARING ON HIS CLAIM THAT
            TRIAL COUNSEL WAS INEFFECTIVE IN


                                                                        A-2948-17T2
                                       8
            MISADVISING HIM ON THE DEPORTATION
            CONSEQUENCES OF HIS GUILTY PLEA.

     In support of his contentions, defendant cites to Mitchell and argues that

that time limit under Rule 3:22-12 is not absolute. He argues that we should

reverse because Judge Rivas rigidly enforced the time bar, which resulted in

defendant being denied the opportunity to litigate constitutional claims.

Defendant maintains that despite the significant filing delay, there was

excusable neglect because he was not properly informed about immigration

consequences. He adds that he filed his PCR petition as soon as he became

aware about the misadvice and argues that enforcing the time bar would

constitute a fundamental injustice. 2

     Moreover, defendant distinguishes his case from State v. Brewster, 429

N.J. Super. 387 (App. Div. 2013). There, we rejected the Rule's time bar where

a defendant filed his PCR petition almost twelve years after his conviction,

asserting that he was entitled to relief because he circled "yes" to question

seventeen on the plea form and consulted an attorney three years prior to the



2
    In his PCR brief, defendant asserts that he learned about his possible
deportation in 2016 when federal authorities began deportation proceedings. He
cites to the same statement made by PCR counsel in the brief filed on his behalf
in support of his petition. However, there is no evidence in the record to support
the allegation that federal authorities began deportation proceedings at any time.
                                                                          A-2948-17T2
                                        9
filing who advised that the conviction could be problematic. Brewster, 429 N.J.

Super. at 391-401.

      We are not persuaded by any of these arguments and affirm substantially

for the reasons expressed by Judge Rivas in his comprehensive oral decision.

We add only the following comments.

      The standard for determining whether counsel's performance was

ineffective for purposes of the Sixth Amendment was formulated in Strickland

and adopted by our Supreme Court in State v. Fritz, l05 N.J. 42 (l987). In order

to prevail on a claim of ineffective assistance of counsel, a defendant must meet

the two-prong test of establishing that: (l) 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 687, 694.

      The Strickland two-prong analysis applies equally to convictions after a

trial or after a defendant pleads guilty.      In the context of a PCR petition

challenging a guilty plea, the second prong is satisfied when a defendant


                                                                             A-2948-17T2
                                        10
establishes "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."

Gaitan, 209 N.J. at 351 (alteration in original) (quoting State v. Nunez-Valdez,

200 N.J. 129, 139 (2009)). A defendant who claims ineffective assistance of

plea counsel must also show that "a decision to reject the plea bargain would

have been rational under the circumstances." Padilla, 559 U.S. at 372; see also

State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011).

      Here, there is no evidence that "defense counsel . . . assure[d] defendant

that he would not be deported. . . . [and d]efendant has not shown . . . [that he

received any] advice [that] deviated from the 'prevailing professional norms' in

199[4 or 2000] for a criminal defense attorney." Brewster, 429 N.J. Super. at

396, (quoting Padilla, 559 U.S. at 366-67); see also Garcia, 320 N.J. Super. at

336 (addressing claim of IAC arising from "defense attorney advis[ing the

defendant] that despite his status in this country, he would not be subject to

deportation and that's why 'N/A' was circled on the plea form"). Also, defendant

has not alleged that he did not understand the plea forms or failed to review them

with counsel. Cf. State v. Atuna, 446 N.J. Super. 595, 602-03 (App. Div. 2016)

(finding IAC even though plea counsel did not misadvise about immigration




                                                                          A-2948-17T2
                                       11
consequences because defendant did not understand English and counsel

"fail[ed] to have defendant review every question on the plea form").

      Moreover, under the circumstances presented by defendant, there is no

evidence that had he received advice about the possibility of being deported, it

would have been rational for him to forego the plea offers and face trial and the

risk of a 1994 sentence to prison or more time, under the extended term, as part

of his 2000 sentence. See Lee v. United States, 137 S. Ct. 1958, 1967 (2017)

("[c]ourts should not upset a plea solely because of post hoc assertions from a

defendant about how he would have pleaded but for his attorney's deficiencies.

Judges should instead look to contemporaneous evidence to substantiate a

defendant's expressed preferences").

      We therefore conclude from our de novo review that defendant failed to

establish a prima facie showing of IAC and Judge Rivas correctly concluded that

an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 451,

462 (1992).

      Affirmed.




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