                                NOT FOR PUBLICATION WITHOUT THE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-3684-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

FERNANDO CASTRO, a/k/a
BOLOS,

     Defendant-Appellant.
____________________________

                    Submitted February 12, 2019 – Decided August 1, 2019

                    Before Judges Gilson and Natali.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Passaic County, Indictment No. 99-09-0899.

                    Ronald P. Mondello, 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 Fernando Castro appeals from a March 15, 2018 order denying

his petition for post-conviction relief (PCR) without an evidentiary hearing and

his motion to withdraw his guilty plea. We reverse the portion of the order

denying defendant's PCR petition, and remand for an evidentiary hearing to

address his claim of ineffective assistance of counsel based on his trial counsel's

alleged affirmative misrepresentations regarding the immigration consequences

of his guilty plea. We affirm, however, the March 15, 2018 order to the extent

it determined that defendant's trial counsel was not ineffective for failing to

appeal defendant's rejection from the Pre-Trial Intervention Program (PTI), or

for failing to negotiate a purported "immigration safe plea." We also affirm the

court's denial of defendant's motion to withdraw his guilty plea.

                                         I.

        When he was eleven years old, defendant came to the United States from

Mexico without immigration papers. Eight years later, defendant, along with

two other individuals, was arrested for attacking and striking M.D.1 with a belt

and metal pipe. Defendant was charged with third-degree aggravated assault

with a deadly weapon, N.J.S.A. 2C:12-1(b)(2); third-degree possession of a




1
    We use initials for M.D. and G.S. to protect their privacy.
                                                                           A-3684-17T1
                                         2
weapon for unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(d).

      Defendant pled guilty to third-degree aggravated assault with a deadly

weapon. In accordance with the plea agreement, the court dismissed defendant's

other charges, and sentenced him to three years of probation, with time served

of 124 days in jail. He was also ordered to pay restitution of $1613. Defendant

did not appeal his sentence. The facts regarding the underlying offense are

briefly recounted here to provide context for our opinion.

                                       II.

      On June 23, 1999, defendant was walking in Passaic with then

co-defendants, Freddy Perez and Alberto Benitez, when they approached M.D.

and his girlfriend, G.S. Perez and Benitez began to fight with M.D., and hit him

with a belt and a stick. Defendant joined the fight and struck M.D. with a metal

pipe. The police arrived and observed that M.D. was bleeding from a wound to

his head. Defendant was arrested that day, and later admitted to the police that

he hit M.D. twice with the pipe, and that he believed he hit him in the head.

      Defendant applied for entry into PTI, but was rejected for three reasons.

The PTI Director explained that first, the nature of the offense was "serious,"

and therefore "the needs and interests of the victim and society," which


                                                                         A-3684-17T1
                                       3
outweighed the "value of supervisory treatment," "would best be served by

pursuing prosecution." Second, the PTI Director found significant defendant's

failure to recognize his full responsibility for the offense. Specifically, he noted

that defendant shifted "substantial blame" to M.D., alleging that M.D. had a

knife and attacked one of the co-defendants. Finally, the PTI Director concluded

that defendant demonstrated a "pattern of disregard for the laws and/or rules of

U.S. society."

      The PTI Director explained that defendant entered the country illegally

and admitted to being a past member of a Mexican gang in Passaic.

Additionally, while defendant denied presently being a gang member, he

admitted "that he hangs out with his cousins and nephews who are current gang

members." Accordingly, the PTI Director stated that he "cannot reasonably

assure the [c]ourt that defendant will not continue to become involved in further

illegal conduct." Defendant's trial counsel did not appeal the PTI Director's

decision.

      As noted, defendant entered into a negotiated plea agreement on

November 15, 1999, and pled guilty to third-degree aggravated assault with a

deadly weapon. The State agreed to recommend a sentence of probation with

the possibility of up to 364 days in county jail and dismissal of the remaining


                                                                            A-3684-17T1
                                         4
charges.   On the plea form, defendant responded affirmatively 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?"

Defendant signed and dated the third page of the plea form, and initialed the

first and second pages.

      At the plea hearing on the same day, defendant admitted to hitting M.D.

with a belt while Benitez was also hitting M.D. Defendant's counsel asked

defendant if "anybody promise[d] [him] anything besides what's in the plea

agreement to get [him] to plead guilty," and defendant responded "No."

Additionally, the following colloquy occurred between defendant and his

counsel:

            [COUNSEL]: It's also possible, because you don't have
            a green card, that the immigration service could decide
            to [deport] you. I explained that to you, did I not?

            DEFENDANT: Yes.

            [COUNSEL]: You understand that?

            DEFENDANT: Yes.

            [(Emphasis added).]




                                                                      A-3684-17T1
                                      5
      On February 4, 2000, defendant was sentenced to three years of probation,

with time served of 124 days, and ordered to pay M.D. $1613 in restitution. The

court entered a Judgment of Conviction (JOC) on the same day.

      Before the PCR court, defendant's PCR counsel represented that defendant

"had no idea that he was deportable" as a result of his conviction until he sought

counsel's services to "file a green card application based on his marriage to a

U.S. citizen." PCR counsel stated that he "immediately told [defendant] that he

was going to be deported if he filed that application." Approximately eight

months after his meeting with PCR counsel, and seventeen years after the entry

of his JOC, on October 18, 2017, defendant filed his PCR petition and a motion

to withdraw his guilty plea.

      In his PCR petition, defendant asserted that his trial counsel gave

"misadvice as to the immigration consequences" of his plea.          Specifically,

defendant contended that his counsel affirmatively misrepresented that "as long

as [he] did not go to prison, [he] . . . would not be deported." In his October 13,

2017 affidavit in support of his petition, defendant asserted that he "would

NEVER have pled guilty if [he] thought [he] was going to be deported," and that

he "would have taken [his] chances and gone to trial had [he] known" he'd be

deported. Additionally, defendant claimed his counsel failed to insist defendant


                                                                           A-3684-17T1
                                        6
"seek . . . advice from an immigration attorney," file a motion for the court to

determine whether defendant was "a good candidate for PTI," and file various

pre-trial evidentiary motions.

      The PCR court heard oral arguments on March 15, 2018, and denied

defendant's petition and motion to withdraw his plea. First, in considering

whether defendant's PCR petition was time barred by Rule 3:22-12(a)(1), the

PCR judge, who was also the sentencing judge, found significant that defendant

responded affirmatively to question seventeen in the plea form, and indicated at

the plea hearing that he understood that he may be deported if he pled guilty.

Additionally, the court noted that the State indicated in its brief that "if relief

was given to defendant[,] [it] could not proceed with the case because of the

time lapse, [and] consequently, it would suffer prejudice." Accordingly, the

court determined defendant's petition was time barred because it was "not

satisfied . . . that the interest of justice demand that the . . . rule be relaxed ."

      The PCR judge, nevertheless, discussed the merits of defendant's claims.

With respect to defendant's claim that plea counsel affirmatively misinformed

him of the immigration consequences of his plea, the court concluded that "[i]n

light of being advised at the plea hearing that he may be deported if he pled

guilty, defendant's general statement that his attorney told him he would not be


                                                                                A-3684-17T1
                                           7
deported if he did not receive a jail sentence is insufficient to demonstrate

deficient performance."

      Further, the court "f[ound] that defendant ha[d] not shown that . . . had he

known that [his trial counsel's] advice was incorrect he would not have pled

guilty." Additionally, the court stated that because defendant was on bail and

not incarcerated at the time of his plea, there was "no pressure on him to plead

guilty," and the plea was made voluntarily. Accordingly, the court concluded

that because defendant's "bare allegation [was] not . . . substantiated by other

facts [in] the record[,] . . . [he] ha[d] not demonstrated a prima facie case

requiring an evidentiary hearing."

      With respect to defendant's assertion that his trial counsel was ineffective

because he "failed to file a motion to admit [him] into [PTI]," the court

determined the "contention lacks merit." The court noted the PTI Director's

bases for rejecting defendant, and concluded there was no "patent and gross

abuse of discretion."

      Finally, the court addressed defendant's motion to withdraw his guilty plea

and applied the four factors detailed in State v. Slater, 198 N.J. 145, 157-58




                                                                          A-3684-17T1
                                        8
(2009).2   Specifically, as to factor one, the court "place[d] no weight on

defendant's current claim of innocence." With respect to factor two, the court

restated its previous conclusion that defendant's trial counsel was not

ineffective. In considering factor three, the court noted that "the other charges

of the indictment were dismissed and . . . defendant . . . received a probationary

sentence." Finally, as to factor four, the court stated that "it's [been] nearly

twenty years [since the incident] and it's very doubtful that the State could really

pick up and try this case at this point is time." Thus, after balancing the four

Slater factors, the court "[did] not find . . . a manifest injustice such [that]

defendant should be permitted to withdraw his guilty plea." Accordingly, in a

March 15, 2018 order, the court denied defendant's petition for PCR and motion

to withdraw his guilty plea. This appeal followed.




2
  As stated in Slater, a court evaluating motions to withdraw a guilty plea must
"consider and balance" the following factors:

            (1) whether the defendant has asserted a colorable
            claim of innocence; (2) the nature and strength of
            defendant's reasons for withdrawal; (3) the existence of
            a plea bargain; and (4) whether withdrawal would result
            in unfair prejudice to the State or unfair advantage to
            the accused.
            [Ibid.]
                                                                            A-3684-17T1
                                         9
                                    III.

     Defendant raises the following issues on appeal, which we have

renumbered for ease of reference:

           POINT I

           THE TRIAL COURT ERRED IN FINDING THAT
           THE DEFENDANT'S DELAY IN FILING THE
           PETITION WAS NOT DUE TO EXCUSABLE
           NEGLECT AND THAT THE DEFENDANT'S
           PETITION WAS FILED WITHIN ONE YEAR OF
           DISCOVERING THE FACTUAL PREDICATE FOR
           THE RELIEF SOUGHT PURSUANT TO RULE
           3:22-12(a)(2)(B)

              A. PETITIONER   HAS          ESTABLISHED
                 EXCUSABLE NEGLECT

              B. ENFORCEMENT OF THE TIME BAR WOULD
                 RESULT IN A FUNDAMENTAL INJUSTICE

              C. THERE   IS NO   TIME   LIMITATION
                 ASSOCIATED WITH A MOTION TO
                 WITHDRAW A GUILTY PLEA

           POINT II

           THE DEFENDANT WAS DENIED HIS UNITED
           STATES CONSTITUTIONAL RIGHT AND NEW
           JERSEY   STATE  RIGHT   TO   EFFECTIVE
           ASSISTANCE OF COUNSEL AND TO DUE
           PROCESS AS GUARANTEED BY THE SIXTH AND
           FOURTEENTH AMENDMENTS TO THE UNITED
           STATES CONSTITUTION AND BY ARTICLE I,
           PARAGRAPH X OF THE NEW JERSEY STATE
           CONSTITUTION    DUE   TO    COUNSEL'S:

                                                            A-3684-17T1
                                    10
            1)  ERRONEOUS    ADVICE    AS  TO    THE
            CONSEQUENCE OF HIS PLEA; 2) FAILURE TO
            FILE AN APPEAL TO BE ADMITTED TO THE
            PRE-TRIAL INTERVENTION PROGRAM; 3)
            FAILURE TO FILE A MOTION TO ADMIT
            DEFENDANT     INTO    THE     PRE-TRIAL
            INTERVENTION PROGRAM; 4) FAILURE TO FILE
            ANY PRE-TRIAL MOTIONS OR TO CONTEST IN
            ANY WAY THE STATE'S CASE; AND 5) FAILURE
            TO NEGOTIATE A "SAFE HAVEN"; A
            PRESUMPTION OF PREJUDICE EXISTS, OR, AT
            THE    VERY   LEAST,   A    REASONABLE
            PROBABILITY EXISTS THAT BUT FOR THE
            ERRORS THE RESULT OF THE PROCEEDINGS
            WOULD HAVE BEEN DIFFERENT; THE
            DEFENDANT'S CONVICTION SHOULD BE
            VACATED

            POINT III

            PURSUANT TO STATE V. SLATER, 198 N.J. 145
            (2009), DEFENDANT MEETS THE "MANIFEST
            INJUSTICE" FOUR FACTOR BALANCING TEST IN
            ORDER TO WITHDRAW A GUILTY PLEA

                                        IV.

      Defendant first maintains that the PCR court committed error when it

concluded that his PCR petition was time barred. Specifically, defendant asserts

that he has established excusable neglect for the delay in filing his petition, and

thus, the time bar should be relaxed.

      Pursuant to Rule 3:22-12(a)(1), PCR petitions must be filed within five

years from the date of entry of the JOC. The rule encourages litigants to

                                                                           A-3684-17T1
                                        11
promptly file for PCR, and serves two primary functions. State v. Murray, 162

N.J. 240, 249 (2000). "First, the passing of time after a conviction increases the

difficulties associated with a fair and accurate reassessment of the events." Ibid.

"Second, respect for the finality of judgments and the undesirable uncertainty

fostered by unlimited relitigation support the enforcement of a time bar on

petitions." Ibid.

      Rule 3:22-12(a)(1)(A) waives the time bar, however, if "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." To demonstrate "excusable neglect," a defendant must provide more

than "simply . . . a plausible explanation for a failure to file a timely PCR

petition." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). "If the

petitioner does not allege sufficient facts, the [r]ule bars the claim." State v.

Mitchell, 126 N.J. 565, 576 (1992).

            To determine whether a defendant has asserted a
            sufficient basis for relaxing the Rule's time restraints,
            we "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."



                                                                           A-3684-17T1
                                       12
            [Norman, 405 N.J. Super. at 159 (quoting State v.
            Afanador, 151 N.J. 41, 52 (1997)).]

"Absent compelling, extenuating circumstances, the burden to justify filing a

petition after the five-year period will increase with the extent of the delay."

State v. Milne, 178 N.J. 486, 492 (2004) (quoting Afanador, 151 N.J. at 52).

      We conclude that an evidentiary hearing is necessary to determine

whether defendant has established excusable neglect and if enforcement of the

time bar would result in a fundamental injustice.         While the PCR court

concluded it was "not satisfied . . . that the interest of justice demand that the

. . . [time bar] be relaxed," it made no specific findings with respect to

defendant's statement that his trial counsel affirmatively misled him. Moreover,

defendant asserts that the seventeen year delay from the time of his February 4,

2000 JOC to the filing of his PCR petition was excusable because he was

affirmatively misinformed concerning the immigration consequences of his

plea, and had no reason to suspect that he received ineffective assistance of

counsel until he consulted with PCR counsel to apply for a green card.

Defendant stated in his certification that he "recently found out" that he was

"misadvised as to the consequences of [his] plea." As noted, before the PCR




                                                                          A-3684-17T1
                                       13
court, defendant's PCR counsel stated that in February 2017 he informed

defendant that he was subject to mandatory deportation.3

      In support of its claim that defendant's petition is time barred, the State

relies on our decision in State v. Brewster, 429 N.J. Super. 387, 400 (App. Div.

2013), in which we stated that a "[d]efendant cannot assert excusable neglect

simply because he received inaccurate deportation advice from his defense

counsel." The State further relies on the Brewster court's statement that "[i]f

excusable neglect for late filing of a petition is equated with incorrect or

incomplete advice, long-convicted defendants might routinely claim they did

not learn about the deficiencies in counsel's advice on a variety of topics until

after the five-year limitation period had run." Ibid.

      This case, however, is distinguishable from Brewster. In that case, the

defendant's trial counsel predicted that there would be no "issue with

immigration" as a result of his conviction. Id. at 395. The court concluded that

in light of the "attendant circumstances in 1998," when federal deportation law

was "on the cusp of modification," defendant's counsel's statement, along with

the deportation warning in question seventeen of the plea form, "was not



3
  We note that in defendant's brief on appeal, he asserts that he consulted with
PCR counsel in March 2017.
                                                                         A-3684-17T1
                                       14
unreasonable advice or outside the norms of the profession." Id. at 397-98. The

Brewster court stated that the "defense counsel could not have reasonably

predicted the certainty or even likelihood of defendant's deportation." Id. at 397.

Additionally, in that case, the defendant became aware of the immigration

consequences of his plea three years prior to filing his PCR petition when he

consulted an attorney who advised him that his conviction "could be a problem."

Id. at 399-400.

      Here, in contrast, defendant certified that his counsel stated that he would

not face deportation "as long as [he] did not go to prison," which is an

affirmative misrepresentation of the immigration consequences of defendant's

plea. As detailed in subsection A of this decision, defendant's deportation was

mandatory as a result of his guilty plea. Further, defendant asserts that he filed

his PCR petition less than a year after becoming aware that he was subject to

mandatory deportation.

      Defendant also argues in the alternative that, pursuant to Rule

3:22-12(a)(2)(B), he properly filed his PCR petition within one year of

consulting with his PCR counsel regarding a green card application and learning

that his conviction subjected him to mandatory deportation.




                                                                           A-3684-17T1
                                       15
      Rule 3:22-12(a)(2)(B) states in pertinent part that "no second or

subsequent petition shall be filed more than one year after . . . the date on which

the factual predicate for the relief sought was discovered, if that factual predicate

could not have been discovered earlier through the exercise of reasonable

diligence." R. 3:22-12(a)(2)(B). Although the rule "refers to a 'second or

subsequent petition[,]' . . . the one-year supplemental period should apply as

well to a first petition filed beyond the five-year limitation period of subsection

(a)(1)." Brewster, 429 N.J. Super. at 399 n.4. "To determine whether the

one-year supplemental period applies to a particular PCR petition, the trial court

would have to make a threshold finding that the petition shows . . . a new 'factual

predicate' that could not have been discovered earlier through the exercise of

reasonable diligence." Ibid. Thus, on remand, the trial court should assess

whether defendant has established a factual predicate to warrant the application

of Rule 3:22-12(a)(2)(B).

                                       V.

      We next discuss the merits of defendant's ineffective assistance of counsel

claims. As noted, defendant primarily maintains that his trial counsel was

ineffective because he affirmatively misadvised defendant that he would not be

subject to deportation as a result of his guilty plea as long as he was not


                                                                             A-3684-17T1
                                        16
sentenced to a period of incarceration. Defendant further asserts that his counsel

was ineffective by failing to appeal his rejection from PTI, or file a motion to

admit him into PTI. Finally, defendant contends counsel was constitutionally

deficient based on his trial counsel's failure to negotiate a plea to an offense that

did not subject him to mandatory deportation. We address each of these claims

separately. 4

      As defendant's PCR petition is based on his claim that trial counsel

rendered ineffective assistance, he must satisfy the two-part test pronounced in

Strickland v. Washington, 466 U.S. 668, 687 (1984). The first prong requires a

showing that "counsel's representation fell below an objective standard of

reasonableness." Id. at 688. In other words, a defendant must show "that

counsel made errors so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment." Id. at 687; see also State

v. Fritz, 105 N.J. 42, 58 (1987).




4
   Defendant asserted in his PCR petition that trial counsel was ineffective by
failing to file nine pre-trial evidentiary motions. Defendant, however, fails to
raise these issues in his brief on appeal, and accordingly, we consider them
waived. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011)
("An issue not briefed on appeal is deemed waived.").


                                                                             A-3684-17T1
                                        17
      Under the second prong, a defendant must demonstrate that his counsel's

"deficient performance prejudiced the defense" to the extent that it "deprive[d]

the defendant of a fair trial." Strickland, 466 U.S. at 687. To establish this

prong, a defendant must demonstrate "a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different." Id. at 694.

   A. Affirmative Misadvice

      In 2009, our Supreme Court held in State v. Nunez-Valdez, 200 N.J. 129

(2009), that "a defendant can show ineffective assistance of counsel by proving

that his guilty plea resulted from 'inaccurate information from counsel

concerning the deportation consequences of his plea.'"         Brewster, 429 N.J.

Super. at 392 (quoting Nunez-Valdez, 200 N.J. at 143). In 2010, the United

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

counsel's duty includes not only avoiding "false or misleading information" as

stated in Nunez-Valdez, but also the affirmative duty to inform a defendant

entering a guilty plea with respect to the relevant mandatory deportation law if

it is "succinct, clear, and explicit." Padilla, 559 U.S. at 368.

      The Padilla Court held that counsel's "failure to advise a noncitizen client

that a guilty plea will lead to mandatory deportation deprives the client of the


                                                                          A-3684-17T1
                                        18
effective assistance of counsel guaranteed by the Sixth Amendment." State v.

Barros, 425 N.J. Super. 329, 331 (App. Div. 2012) (citing Padilla, 559 U.S. at

369). However, because Padilla "announced a new rule" and is therefore "not

entitled to retroactive effect," for convictions entered before the decision in

Padilla, "Nunez-Valdez still governs the standard of attorney performance in

New Jersey in ineffective assistance of counsel claims on collateral review."

State v. Gaitan, 209 N.J. 339, 373-74 (2012).

      Here, defendant's claims are governed by the Nunez-Valdez standards,

and therefore trial counsel had no duty to inform defendant that as a consequence

of his plea, he would be deported. Rather, counsel was obligated to avoid

providing inaccurate or misleading information regarding the immigration

consequences of defendant's plea. See State v. Santos, 210 N.J. 129, 143 (2012)

("Petitions challenging the entry of guilty pleas prior to Padilla on ineffective

assistance of counsel grounds must be assessed under the law as it existed under

[Nunez-Valdez], which instead focuses on whether counsel provided affirmative

misadvice regarding the immigration consequences of a guilty plea.")

      Applying these principles, we are persuaded that an evidentiary hearing is

appropriate to test defendant's assertions of ineffective assistance of counsel and

resulting prejudice. As noted, because the PCR court resolved the motion


                                                                           A-3684-17T1
                                       19
without an evidentiary hearing, it made no specific findings, credibility or

otherwise, with respect to his trial counsel's alleged statement that defendant

would not be deported "as long as [he] did not go to prison." Defendant's

confirmatory response to question seventeen of the plea form indicated that he

understood that he "may be deported" as a result of his guilty plea is consistent

with a fair reading of defendant's certification in which he stated that he

believed, due to his attorney's misadvice, that so long as he was not sentenced

to a prison term, he would not be deported.

      As defendant's brief asserts, at the time of his plea, he was immediately

deportable as a result of his conviction of third-degree aggravated assault with

a deadly weapon, which is a crime of "moral turpitude." 5 See 8 U.S.C. §

1182(a)(2)(A)(i)(I) (stating a non-citizen convicted of a "crime involving moral

turpitude" is "inadmissible"); Matter of Medina, 15 I. & N. Dec. 611, 614 (B.I.A.

1976) (explaining that aggravated assault with a deadly weapon is "generally

deemed to be a crime involving moral turpitude"); Matter of Ptasi, 12 I. & N.

Dec. 790 (B.I.A. 1968) ("We concluded that the offense of assault with a deadly



5
  The State has not provided contrary legal authority to dispute defendant's
contention that in 2000, his conviction of third-degree aggravated assault with a
deadly weapon was a crime of moral turpitude rendering him immediately
deportable.
                                                                         A-3684-17T1
                                      20
or dangerous weapon (not named) in violation of section 6195 of the General

Statutes of Connecticut, involved moral turpitude."); Matter of G–R–, 2 I. & N.

Dec. 733 (B.I.A. 1946) ("[O]ur courts have held that a wilful assault with a

dangerous weapon involves moral turpitude."); see also Partyka v. Attorney

Gen. of U.S., 417 F.3d 408, 414 (3d Cir. 2005) ("[T]he hallmark of moral

turpitude is a reprehensible act committed with an appreciable level of

consciousness or deliberation.").      Further, we note that defendant's trial

counsel's questioning at the November 15, 1999 plea hearing in which he

suggested that it was "possible" that defendant could be deported due to his lack

of a green card does not reflect the fact that he was immediately deportable.6

      As to the second Strickland prong, we conclude there was sufficient

evidence in the record to establish a prima facie claim of prejudice, that is, as a

result of the alleged ineffective assistance of counsel, defendant "would not have

plead guilty and would have insisted on going to trial." Nunez-Valdez, 200 N.J.

at 139. In this regard, defendant certified that he "would have taken [his]

chances at trial had [he] known that [he] would [be] deported," and that he



6
   We also note that at the plea hearing, counsel reported to the court that
defendant was "in the ninth year of a ten year wait to get his green card." There
is no evidence in the record to support counsel's statement that defendant was
ever eligible for a green card.
                                                                           A-3684-17T1
                                       21
"would have rather risked spending a period of time in jail as opposed to a

life-sentence stuck in Mexico." As the PCR court acknowledged, defendant had

no   prior   arrests    or   convictions    and   enjoyed   a   "presumption    of

non[-]incarceration."

      Thus, the potential consequences of conviction after trial were not so

severe as to render implausible his claim that he would have rejected the plea

offer. Accordingly, we conclude defendant is entitled to an evidentiary hearing

for the PCR court to determine whether he can established that "counsel's

representation fell below an objective standard of reasonableness" and that "but

for counsel's unprofessional errors, the result of the proceeding would have been

different." Strickland, 466 U.S. at 688, 694.

      Based upon the testimony presented at the evidentiary hearing, the court

should make necessary credibility findings with respect to defendant's claim that

his counsel made the aforementioned affirmative misstatements regarding the

immigration consequences of his plea. In addition, the court should make

findings with respect to any prejudice visited upon the State or defendant.

Finally, the court should address whether the evidence presented by defendant

established excusable neglect for his seventeen year delay, and if enforcement

of the time bar would result in a fundamental injustice. We specifi cally note


                                                                         A-3684-17T1
                                       22
that by ordering the evidentiary hearing we are not expressing any view as to

the outcome of the proceeding.

   B. Failure to Appeal from PTI Rejection or Move to Admit Defendant into
      PTI

      We reject, however, defendant's assertion that his trial counsel was

ineffective for failing to "fil[e] a motion to admit defendant into the [PTI]

program," or "fil[e] an appeal with the lower court to accept him into PTI over

the [PTI] Director's objection."      We note that "[i]n order to overturn a

prosecutor's rejection, a defendant must 'clearly and convincingly establish that

the prosecutor's decision constitutes a patent and gross abuse of discretion. '"

State v. Watkins, 193 N.J. 507, 520 (2008). Further, "[t]he scope of judicial

review of PTI decisions is 'severely limited[,]' and interference by reviewing

courts is reserved for those cases where needed 'to check . . . the "most egregious

examples of injustice and unfairness."'" State v. Lee, 437 N.J. Super. 555, 563

(App. Div. 2014) (second and third alterations in original) (quoting State v.

Negran, 178 N.J. 73, 82 (2003)).

      The trial court discussed the PTI Director's bases for rejecting defendant

and concluded that, based on the PTI Director's findings, it "would not have

overturned [the PTI Director's] decision based upon a patent and gross abuse of

discretion." Further, the record contains no basis to conclude that the PTI

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Director's decision constituted a gross abuse of discretion, or that counsel's

failure to challenge the decision was deficient under the first Strickland prong.

See Lee, 437 N.J. Super. at 563 (quoting State v. Bender, 80 N.J. 84, 93 (1979)

("If a defendant rejected for PTI can prove that the denial '(a) was not premised

upon a consideration of all relevant factors, (b) was based upon a consideration

of irrelevant or inappropriate factors, or (c) amounted to a clear error in

judgment[,]' then an abuse of such discretion would 'be manifest.'" )).

   C. Failure to Negotiate for an Immigration Safe Plea

      We also disagree with defendant's assertion that his trial counsel rendered

ineffective assistance because he "failed to negotiate an immigration safe plea

for [defendant] despite the ready availability of an alternative."        Defendant

primarily relies on Kovacs v. United States, 744 F.3d 44, 52 (2d Cir. 2014), in

which the court concluded:

            a defense lawyer's incorrect advice about the
            immigration consequences of a plea is prejudicial
            [under the second Strickland prong] if it is shown that,
            but for counsel's unprofessional errors, there was a
            reasonable probability that the petitioner could have
            negotiated a plea that did not impact immigration status
            or that he would have litigated an available defense.

Here, defendant provides no legal or factual support for his assertion that the

State would have offered a plea to defendant to an offense, "such as simple


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                                       24
assault or simple possession of [a] weapon," such that he could avoid being

"mandatorily deportable."

                                      VI.

      Finally, defendant asserts that the PCR court erroneously balanced the

four Slater factors in denying his motion to withdraw his guilty plea. Defendant

maintains that a balancing of the factors demonstrates a "manifest injustice" and

his motion should have been granted. We disagree, and affirm for substantially

the reasons expressed by the PCR judge. We offer only the following brief

comments.

      As noted, in exercising its discretion to decide a motion to withdraw a

guilty plea, courts "are to consider and balance four factors": "(1) whether the

defendant has asserted a colorable claim of innocence; (2) the nature and

strength of defendant's reasons for withdrawal; (3) the existence of a plea

bargain; and (4) whether withdrawal would result in unfair prejudice to the State

or unfair advantage to the accused." Slater, 198 N.J. at 157-58. "No one factor

is dispositive, nor must a movant satisfy all four." State v. O'Donnell, 435 N.J.

Super. 351, 369 (App. Div. 2014). "Consideration of a plea withdrawal request,"

however, "can and should begin with proof that before accepting the plea, the




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                                      25
trial court followed the dictates of Rule 3:9-2," ibid. (quoting Slater, 198 N.J. at

155), which:

            requires the court to determine if 'there is a factual basis
            for the plea and that the plea is made voluntarily, not as
            a result of any threats or of any promises or
            inducements not disclosed on the record, and with an
            understanding of the nature of the charge and the
            consequences of the plea.'

            [Ibid. (quoting R. 3:9-2).]

      While a motion to withdraw a plea should be made before sentencing,

under Rule 3:21-1, courts "may permit it to be made thereafter to correct a

manifest injustice." Courts considering motions filed after sentencing apply "a

more stringent standard" and "weigh[] more heavily the State's interest in

finality." State v. McQuaid, 147 N.J. 464, 487 (1997). Accordingly, "the longer

a defendant delays in seeking to withdraw a plea, the greater burden he or she

will bear in establishing 'manifest injustice,' because the prejudice to the State

under prong four will generally increase." O'Donnell, 435 N.J. Super. at 370.

Additionally, "a defendant's reasons for delay may also weigh against relief

under factor two." Ibid. A "fair and just reason for withdrawal" under factor

two will be found where a "defendant was not informed and thus did not

understand material terms and relevant consequences of the guilty plea, namely,

the direct, penal consequences of the plea." Slater, 198 N.J. at 159. We note

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                                        26
that a "trial court's denial of defendant's request to withdraw his guilty plea will

be reversed on appeal only if there was an abuse of discretion which renders the

lower court's decision clearly erroneous." Id. at 372 (quoting State v. Simon,

161 N.J. 416, 444 (1999)).

      Further, "when a voluntary and knowing plea bargain has been entered

into simultaneously with the guilty plea, defendant's burden of presenting a

plausible basis for his request to withdraw his guilty plea is heavier." State v.

Huntley, 129 N.J. Super. 13, 18 (App. Div. 1974). "A guilty plea voluntarily

entered should not generally be vacated in the absence of some plausible

showing of a valid defense against the charges." State v. Gonzalez, 254 N.J.

Super. 300, 303 (App. Div. 1992).

      We conclude the PCR court properly considered and balanced the four

Slater factors in denying defendant's motion to withdraw his guilty plea. The

PCR court correctly "place[d] no weight on defendant's . . . claim of innocence,"

that he struck M.D. because he had a knife and was preparing to injure Perez.

As the PCR court noted, the police reports and the record do not demonstrate

that M.D. had a knife. While a steak knife was found by the police at the scene,

it was "not tied to this crime."




                                                                            A-3684-17T1
                                        27
      Further, defendant admitted to the police that he hit M.D. twice in the head

with a metal pipe. Defendant also stated at the November 15, 1999 plea hearing

that while Benitez was hitting M.D., he also struck M.D. with a belt. In his

certification, defendant does not claim innocence, and rather states that he "did

hit [M.D.] and . . . take[s] FULL responsibility for [his] actions." Additionally,

as the PCR court stated, defendant's "contention of use of deadly force in defense

of another does not consider . . . his obligation to retreat before the use of any

type of excessive force."

      Accordingly, based on the PCR judge's statements and balancing of the

Slater factors, we agree that there was no "manifest injustice such th[at]

defendant should be permitted to withdraw his guilty plea."

      To the extent not specifically addressed, defendants' remaining arguments

are without sufficient merit to warrant discussion in a written opinion . R.

2:11-3(e)(2).

      Affirmed in part, reversed in part, and remanded for an evidentiary

hearing. We do not retain jurisdiction.




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