                                NOT FOR PUBLICATION WITHOUT THE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 NOS. A-0222-18T1
                                                                     A-0226-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

BOBSEUS WILLIAMS,
a/k/a DENNIS SIMPSON,

          Defendant-Appellant.


                    Submitted November 12, 2019 – Decided December 12, 2019

                    Before Judges Geiger and Natali.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment Nos. 90-10-4782
                    and 91-02-0795 and Accusation Nos. 90-12-2548 and
                    90-12-2549.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Ruth E. Hunter, Designated Counsel, on the
                    briefs).

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Lucille M.
            Rosano, Special Deputy Attorney General/Acting
            Assistant Prosecutor, of counsel and on the briefs).

PER CURIAM

      Defendant Bobseus Williams, a non-citizen of the United States, appeals

from June 13, 2018 and June 28, 2018 Law Division orders denying his petitions

for post-conviction relief (PCR) without evidentiary hearings.        We have

calendared these two appeals back-to-back and affirm both orders.

                                       I.

      Defendant pled guilty on December 19, 1990 to one count of third-degree

possession of a controlled dangerous substance (CDS), one count of third-degree

burglary, and one count of third-degree resisting arrest. Approximately two

months later, on February 15, 1991, defendant also pled guilty to one count of

third-degree possession of CDS with intent to distribute on school property,

charged in a separate indictment. That same day, the court sentenced defendant

in accordance with the plea agreement to an aggregate four-year sentence (the

1991 convictions).

      Approximately ten years later, on February 9, 2001, defendant pled guilty

to two counts of second-degree assault, and one count of third-degree possession

of a weapon with an unlawful purpose. On March 16, 2001, the court sentenced

defendant, again in accordance with his plea agreement, to a nine-year aggregate

                                                                        A-0222-18T1
                                       2
custodial term with an eighty-five percent period of parole ineligibility, pursuant

to the No Early Release Act, N.J.S.A. 2C:43-7.2 (the 2001 convictions). The

sentencing court also ordered that the 2001 convictions run concurrent to a

federal sentence defendant was then serving.

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

Instead, on June 7, 2017 and July 19, 2017, approximately twenty-six years after

his 1991 convictions and sixteen years after his 2001 convictions, defendant

filed two PCR petitions in which he primarily alleged his plea counsel was

constitutionally deficient for failing to advise him of the immigration

consequences of his pleas.

      Specifically, in his June 7, 2017 petition related to his 1991 convictions,

defendant alleged that at "the time of [his] plea negotiation, [his] [a]ttorney

failed to inform [him] or [advise] [him] about any [i]mmigration consequences

that would affect [him]" and had he been correctly advised, he "would have

spoken to an [i]mmigration attorney before [he] took [his] [p]lea." Further, in

his supplemental certification defendant attested that "had [he] known of the

collateral consequences of the guilty plea, [he] would never have accepted it and

would have taken the case to trial as [he] had originally intended."




                                                                           A-0222-18T1
                                        3
      Defendant also certified that neither his attorney nor the court advised him

that he "had the ability to file a direct appeal of [his] conviction or that [he]

could file a petition for [PCR] and that if [he] did not file within [five] years of

[his] conviction that [he] could lose [his] ability to do that." He stated that "[i]t

was not until [he] was arrested and incarcerated by [U.S. Immigration and

Customs Enforcement (ICE)] that [he] learned of [his] rights and filed this

petition," which he contended "show[ed] excusable neglect for not filing within

the [five] year time period," prescribed in Rule 3:22-12(a)(1).

      In his July 19, 2017 petition related to his 2001 convictions, defendant

similarly claimed that "[a]t the time of [his] plea negotiation[,] [he] was denied

the effective assistance of counsel" because his attorney "failed to inform or

[advise] [him] about the [i]mmigration [c]onsequences of [his] [g]uilty plea. "

Defendant further stated that he "would not have entered [the guilty plea], but

for the lack of advice [from] [his] attorney," and would have consulted with an

immigration attorney prior to pleading guilty.

      In his March 1, 2018 supplemental certification, defendant added that had

he known his plea would get him deported, he would not have pled guilty and

would have pursued the affirmative defense of self-defense because he "was

injured in the attack . . . [and] had a broken nose and missing tooth," and he


                                                                             A-0222-18T1
                                         4
"relied on [his] lawyer's advice that [the guilty plea] was better than pursuing

the defense." Defendant also noted that he "was denied [a]sylum in 2017 and

filed [his] PCR [petition] shortly thereafter."

      In a June 13, 2018 written opinion and order, the court denied defendant's

petition related to his 1991 convictions. The court held that defendant's petition

was time-barred under Rule 3:22-12(a)(1)(A) because "[it] was not timely filed,

and because [d]efendant fail[ed] to demonstrate fundamental [in]justice and

excusable neglect." The court acknowledged that the issues raised by defendant

in his petition fell within the purview of Rules 3:22-2 and 3:22-4, but held that

"Rule 3:22-12 . . . bar[red] [d]efendant's petition, since he submitted it long after

the expiration of the five-year filing deadline, and has presented no 'exceptional

circumstances' that would trigger its extension."

      The court explained that under the rule defendant "must [establish] both

excusable neglect for the delay and a reasonable probability that his assertions,

if true, would render the enforcement of the conviction a 'fundamental

injustice,'" but that defendant "failed to sustain either burden." The court noted

that defendant attempted to explain his belated filing by claiming he did not

learn of the immigration consequences of his 1991 convictions until he was later

detained by immigration officials but "never indicate[d] when he was


                                                                             A-0222-18T1
                                         5
incarcerated by [i]mmigration and processed for deportation, or how long after

that point he filed his PCR petition" and that "[i]t is entirely possible . . . that

[d]efendant did not file his PCR petition within five years of the initiation of the

deportation proceedings against him."

      The court further stated, relying on State v. Norman, 405 N.J. Super 149,

159 (App. Div. 2009), that defendant's explanation of excusable neglect was

"wholly unsupported by evidence, vague, and barely even the 'plausible

explanation for a failure to file a timely PCR petition' that courts explicitly warn

against." The court also reasoned that in the twenty-six years between his

convictions and filing the PCR petition, defendant "[c]learly . . . had ample

opportunity to learn of his immigration consequences." The court noted that

"[t]his extensive and unjustified delay serve[d] to heighten [d]efendant's burden

of demonstrating a fundamental injustice."

      The court also held that defendant "ha[d] not shown that [his trial

attorney's] purported errors 'played a role in the determination of guilt,' and so

[defendant] [could not] establish that that a miscarriage of justice took place. "

In this regard, the court noted that defendant "never claimed that he [was]

innocent of the charges" and thus, "[defendant's] knowledge of the risk of




                                                                            A-0222-18T1
                                         6
deportation did not . . . affect the truth-telling function of the [c]ourt when it

accepted his plea."

       Furthermore, the court reasoned that defendant "ha[d] not met the first

prong of [the Strickland 1 test]." The court explained that because defendant's

convictions "predated the Supreme Court's seminal 2010 opinion in Padilla2 . . .

concerning deportation consequences to a criminal defendant," defendant's

claims were governed by pre-Padilla standards where "a defendant seeking relief

based upon post-conviction deportation consequences [could] only prevail if he

demonstrate[d] that his prior counsel affirmatively provided him with

misleading advice about such consequences flowing from a guilty plea." The

court concluded defendant failed to establish his counsel made such an

affirmative misrepresentation. Finally, the court ruled that defendant did not

establish the prejudice prong of the Strickland test.



1
   To establish ineffective assistance of counsel, a convicted defendant must
satisfy the two-part test enunciated in Strickland v. Washington, 466 U.S. 668,
687 (1984), by demonstrating that: (1) counsel's performance was deficient, and
(2) the deficient performance actually prejudiced the accused's defense.. The
Strickland test has been adopted in New Jersey. See State v. Fritz, 105 N.J. 42,
58 (1987).
2
  Padilla v. Kentucky, 559 U.S. 356 (2010) (finding ineffective assistance of
counsel in failure to advise defendant before guilty plea about risk of
deportation).
                                                                          A-0222-18T1
                                        7
      In its June 28, 2018 written opinion addressing defendant's 2001

convictions, the court similarly concluded that defendant's petition was time-

barred by Rule 3:22-12(a)(1)(A). It noted that defendant's certification "[made]

no attempt to demonstrate excusable neglect for failing to file a PCR petition

within five years of his conviction" as defendant "fail[ed] to specify when the

asylum claim was filed, when it was denied, when removal proceedings were

initiated against him, or how long after he filed for asylum he filed the present

petition." Furthermore, the court explained that defendant admitted he was

arrested in 2012 and was held for deportation proceedings which "suggest[ed]

that he knew about the risk of deportation at least as early as 2012."

      The court also reasoned that defendant's plea form signed on February 9,

2001, was conclusive proof that he was aware of the risk of deportation well

before filing his PCR petition in 2017 because defendant answered "yes" to

question seventeen, which asked, "[d]o you understand that if you are not a

United State[s] citizen or national, you may be deported by virtue of your plea

of guilty?" The court observed that defendant had sixteen years "free from [his

trial attorney's] influence," but "made no effort to investigate his potential

immigration consequences during that time."           Thus, the court rejected




                                                                         A-0222-18T1
                                        8
defendant's claim he established excusable neglect because "'[i]gnorance of the

law and rules of court does not qualify as excusable neglect.'"

      The court also held that defendant failed to make a prima facie showing

of ineffective assistance of counsel that would entitle him to either PCR or an

evidentiary hearing. As to the first Strickland prong, the court re-iterated that

defendant's trial attorney's duty before Padilla was decided "was not to

affirmatively advise [d]efendant of the immigration consequences of his plea

[but] it was only to not materially misadvise [d]efendant."

      The court reasoned it was "impossible to find . . . that [defendant's trial

attorney]   materially   misadvised    [d]efendant    as   to   his   immigration

consequences," and thus, the court could not find that his trial attorney "made

errors 'so serious that counsel was not functioning as "counsel" guaranteed by

the Sixth Amendment.'" The court concluded that "[b]ecause [d]efendant does

not even claim that [his trial attorney] gave him material misadvice, there [was]

also no material issue of fact that would require an evidentiary hearing to

resolve."

      The court also rejected defendant's contention that his trial attorney should

have investigated and raised the affirmative claim of self-defense. The court

held that defendant's claim failed to satisfy the first prong of Strickland because


                                                                           A-0222-18T1
                                        9
he "provide[d] no information about what [his trial attorney] would have

supposedly uncovered with a more thorough investigation."

      In addition, the court held that defendant failed to meet his burden under

the second Strickland prong because he could not prove that he "'would have not

pled guilty and would have insisted on going to trial' if he had known he might

be deported." According to the court, defendant "received the benefit of the

bargain through pleading guilty" because, "[he] was advantaged by having [three

counts] . . . dismissed, and having his sentence run concurrently to a federal

sentence he was already serving."

      The court also noted that defendant's argument "that but for [his trial

attorney's] purported errors, he would have proceeded to trial on the theory of

self-defense . . . neglect[ed] to account for the [fact that] . . . it would confirm

that [d]efendant was indeed the person who struck the victims." That fact

combined with "the copious amounts of evidence in the possession of the State

[including] three eyewitnesses, the weapon, medical records, and an explanation

for [d]efendant's motive" meant that defendant "was facing a real prospect that

he would be convicted of and sentenced to up to twenty-five years in prison."

      The court explained that defendant "shed no light on the real possibility

that he was already facing deportation as a consequence of his federal


                                                                            A-0222-18T1
                                        10
conviction." The court stated that defendant did not "clarify whether he was

removable for this offense, nor [did] he submit any paperwork related to his

immigration claim at all" which is "his burden in demonstrating ineffective

assistance." Finally, the court held that defendant failed to satisfy the four-factor

"manifest injustice" standard under Slater3 to allow for withdrawal of his guilty

plea pursuant to Rule 3:21-1. These appeals followed.

      With respect to the court's denial of defendant's PCR petition related to

his 1991 convictions, defendant argues the following points under the appeal

bearing docket no. A-0222-18:

             POINT ONE

             THE COURT BELOW ERRED IN FINDING THAT
             DEFENDANT'S PCR PETITION WAS TIME-
             BARRED BECAUSE DEFENDANT FILED HIS PCR
             PETITION WHEN HE DISCOVERED THE
             FACTUAL PREDICATE FOR HIS PCR PETITION.
             SEE [R.] 3:22-12(a)(2)(B).

             POINT TWO

             THIS COURT SHOULD REMAND THE MATTER
             FOR AN EVIDENTIARY HEARING DUE TO THE

3
   State v. Slater, 198 N.J. 145, 157-58 (2009) (holding "trial judges are to
consider and balance four factors in evaluating motions to withdraw a guilty
plea: (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").
                                                                             A-0222-18T1
                                        11
           PCR COURT'S INCORRECT FACTUAL FINDINGS
           REGARDING THE SPECIFIC ASSERTIONS MADE
           BY DEFENDANT IN HIS PETITIONS.

     As to the court's denial of his PCR petition related to his 2001 convictions,

defendant raises the following points for our consideration under the appeal

bearing docket no. A-0226-18:

           POINT ONE

           THE TRIAL COURT ERRED IN FINDING THAT
           DEFENDANT'S PCR PETITION WAS TIME-
           BARRED BECAUSE DEFENDANT FILED HIS PCR
           PETITION WHEN HE DISCOVERED THE
           FACTUAL PREDICATE FOR HIS PCR PETITION.
           SEE [R.] 3:22-12(a)(2)(B).

           POINT TWO

           THE PCR COURT ERRED IN DENYING THE PCR
           PETITION   WITHOUT    AN    EVIDENTIARY
           HEARING BECAUSE DEFENSE COUNSEL DID
           NOT    INFORM    DEFENDANT     OF   THE
           IMMIGRATION CONSEQUENCES AND ADVISED
           HIM TO ACCEPT A GUILTY PLEA RATHER THAN
           PURSUE SELF-DEFENSE AT TRIAL.

           POINT THREE

           THE PCR COURT IMPROPERLY APPLIED STATE
           v. SLATER, 198 N.J. 145 (2009), TO THIS CLAIM OF
           INEFFECTIVE ASSISTANCE OF COUNSEL. SEE
           STATE v. O'DONNELL, 435 N.J. SUPER. 351 (App.
           Div. 2014).



                                                                          A-0222-18T1
                                      12
      We affirm substantially for the reasons expressed by the court in its June

13, 2018 and June 28, 2018 written opinions. We add the following additional

comments.

                                      II.

      To prove ineffective assistance of plea counsel, a defendant must show

that counsel's performance was deficient and but for counsel's errors, there is a

reasonable probability that defendant would not have pled guilty. Strickland,

466 U.S. at 687, 694; State v. DiFrisco, 137 N.J. 434, 457 (1994). The court

must consider the facts in the light most favorable to the defendant to determine

if a defendant has established a prima facie claim. State v. Preciose, 129 N.J.

451, 462-63 (1992).

      A first petition for PCR must be filed within five years of the date of the

judgment of conviction. R. 3:22-12(a)(1). A late filing may be considered if

the petition itself shows 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); R. 3:22-

12(a)(1)(A). In addition, Rule 3:22-12(a)(2)(B) allows for a petition to be filed

within one year of the "date on which the factual predicate for the relief sought




                                                                           A-0222-18T1
                                       13
was discovered, if that factual predicate could not have been discovered earlier

through the exercise of reasonable diligence."4

      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 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


4
  Although subsection (a)(2) of Rule 3:22-12 specifically refers to a "second or
subsequent petition," we held in Brewster, 429 N.J. Super. at 399 n.4, that the
"one-year supplemental period should apply as well to a first petition filed
beyond the five-year limitation period of subsection (a)(1)" as it "would be
anomalous if it deemed timely a second or third PCR petition based on a new
constitutional right or a factual predicate newly-discovered but did not afford
the same time period for a first PCR petition raising the same ground for relief."
The Brewster court noted, however, that "[t]o 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 violation of a
"constitutional right . . . newly recognized" or a new "factual predicate" that
could not have been discovered earlier through the exercise of reasonable
diligence." Ibid.
                                                                           A-0222-18T1
                                       14
avoid a fundamental injustice." Brewster, 429 N.J. Super. at 400 (quoting

Mitchell, 126 N.J. at 587).

                                        III.

      We first address defendant's arguments, raised in point one of both

appeals, that the court committed error because it failed to apply correctly Rule

3:22-12(a)(2)(B) with respect to his 1991 and 2001 convictions and concluded

his petitions were time-barred. We disagree because defendant's arguments are

both procedurally and substantively without merit.

       Procedurally, defendant failed to allege in the trial court that he filed his

petition within one year of discovering the factual predicate for relief, as

prescribed in Rule 3:22-12(a)(2)(B).        Instead, he maintained only that he

complied with Rule 3:22-12(a)(1)(A).           We generally decline to consider

questions or issues not first presented in the trial court when an opportunity for

such a presentation is available, unless the issues raised on appeal concern

jurisdiction or matters of great public interest. State v. Robinson, 200 N.J. 1, 20

(2009) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234, 300 (1973)).

Defendant's contentions do not satisfy either of the Nieder exceptions. Although

we could reject defendant's reliance on Rule 3:22-12(a)(2)(B) on that basis




                                                                            A-0222-18T1
                                       15
alone, we nevertheless address defendant's claims under both sections of Rule

3:22-12, and determine they are substantively without merit.

      We agree with the court that defendant's PCR petitions related to his 1991

and 2001 convictions were untimely and defendant failed to establish that those

belated filings should be excused.5 We initially note that before the court,

defendant provided different explanations to establish excusable neglect and

justify his belated filings.    Defendant certified with respect to his 1991

convictions he learned of the facts necessary to file his PCR petition when he

was arrested and incarcerated by ICE. In neither his certification nor his PCR

brief did defendant indicate specifically when he was arrested by ICE or when

he learned of those rights. In his brief supporting his PCR petition for the 2001

convictions, however, he admitted that "[h]e was arrested in 2012 on warrants

and finished his [New Jersey State Prison] time and was held for deportation

proceedings [and] [h]e was released on ICE federal bail in 2016." He also


5
  With respect to his 1991 convictions, defendant does not argue on appeal that
he complied with Rule 3:22-12(a)(1), or that his belated filing should be excused
under Rule 3:22-12(a)(1)(A). "[A]n issue not briefed is deemed waived."
Pressler and Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2019);
Telebright Corp. v. Dir., N.J. Div. of Taxation, 424 N.J. Super. 384, 393 (App.
Div. 2012). For purposes of completeness, we have nevertheless considered the
merits of whether defendant's petition satisfied that Rule and agree with the
court's conclusions in its June 13, 2018 written opinion that the petition is time-
barred and defendant failed to establish excusable neglect.
                                                                           A-0222-18T1
                                       16
alleged that he filed his petitions shortly after his asylum claim was denied in

2017.

        Further, when he pled guilty in 2001, defendant answered "yes" to the

question that asked, "[d]o you understand that if you are not a United State[s]

citizen or national, you may be deported by virtue of your plea of guilty? "

Defendant further told the court during the plea hearing that he had sufficient

time to address the questions with his attorney, that he would have given the

same answers to each of the questions if he were asked in open court under oath,

and that his attorney satisfactorily explained and answered all of his questions.

Thus, defendant's contention that he complied with either Rule 3:22-12(a)(2)(B)

or Rule 3:22-12(a)(1)(A) is unsupported by the record, as he clearly knew about

the risk of deportation well before 2017.

        We likewise concur with the court that there was no excusable neglect for

defendant's failure to file a timely claim and therefore no injustice would result

in not relaxing the five-year time bar under Rule 3:22–12(a)(1)(A). With respect

to defendant's claims of excusable neglect, we considered and rejected a similar

argument in Brewster. In that case, we rejected defendant's argument that plea

counsel's inaccurate deportation advice constituted excusable neglect. We held

that imparting allegedly deficient immigration advice does not equate with


                                                                          A-0222-18T1
                                       17
excusable neglect because, if it did, "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." Brewster, 429 N.J.

Super. at 400. Thus, defendant's argument on appeal that "the cause of [his]

delay was not knowing about the dire immigration consequences . . . due to his

attorney's advice" does not justify a finding of excusable neglect under Rule

3:22-12(a)(1).

      In rejecting defendant's claims of excusable neglect, we also consider the

prejudice to the State caused by the significant passage of time and incomplete

record caused by defendant's grossly belated filing. For example, the plea and

sentencing related to the 1991 convictions took place over twenty-six years ago,

and defendant now states that "[t]he [1990] plea and [1991] sentencing hearing

transcripts were destroyed pursuant to a records retention schedule" and that

"[t]he plea forms and Indictment No. 90-10-4782 are missing from the file."

Thus, the State would be unfairly prejudiced in having to re-litigate this case as

"memories have dimmed . . . and evidence is lost or unattainable." Mitchell,

126 N.J. at 575.

                                       IV.




                                                                          A-0222-18T1
                                       18
      We also reject defendant's claims raised in point two of both appeals that

his plea counsel was constitutionally ineffective because he failed to give

defendant accurate advice about the immigration consequences of his guilty

plea.6 Because defendant's convictions predated the Supreme Court's opinion in

Padilla, his claims are governed by the standards of State v. Nunez-Valdez, 200

N.J. 129, 143-44 (2009).      As noted, under those pre-Padilla standards, a

defendant seeking relief based upon post-conviction deportation consequences

can only prevail upon a demonstration that counsel affirmatively provided

misleading advice about such consequences flowing from a guilty plea. Id. at

139-43; see also State v. Santos, 210 N.J. 129, 143 (2012).

      Accordingly, defendant's counsel's representation would be deemed

constitutionally ineffective only if he affirmatively misinformed defendant

about the immigration consequences of pleading guilty. State v. Gaitan, 209

N.J. 339, 375 (2012). At no point in either his petitions or certifications does

defendant explicitly state that his counsel affirmatively misinformed him of the

immigration consequences of his pleas.


6
  We acknowledge that with respect to defendant's petition related to his 1991
convictions, the court incorrectly stated that defendant alleged his trial counsel
advised him to consult with an immigration attorney. Based on our review of
the record, that error by the court was harmless and does not affect our
conclusion that defendant's petition was substantively meritless.
                                                                          A-0222-18T1
                                       19
      Indeed, defendant submitted no evidence that his plea 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' . . . for a criminal defense attorney." Brewster, 429 N.J. Super. at 396

(quoting Padilla, 559 U.S. at 366-67). Also, defendant has not alleged that he

did not understand the plea forms or failed to review them with plea counsel.

Cf. State v. Antuna, 446 N.J. Super. 595, 602-03 (App. Div. 2016) (finding

ineffective assistance even though plea counsel did not misadvise about

immigration consequences because defendant did not understand English and

counsel "fail[ed] to have defendant review every question on the plea form").7


7
  As noted, in the certification related to his 1991 convictions, defendant also
maintained that neither the court nor his plea counsel advised him that "[he] had
the ability to file a direct appeal of [his] conviction or that [he] could file a
petition for [PCR] and that if [he] did not file within [five] years of [his]
conviction that [he] could lose [his] ability to do that." Defendant does not argue
on appeal that the aforementioned purported failures by plea counsel support a
claim for ineffective assistance of counsel. We, accordingly, consider any such
argument waived. Woodlands Cmty. Ass'n v. Mitchell, 450 N.J. Super. 310,
318-19 (App. Div. 2017); see also Pressler & Verniero, Current N.J. Court
Rules, cmt. 5 on R. 2:6-2 (2019). In any event, defendant's claims are without
merit. First, defendant has not identified with the necessary specificity, see R.
3:22-8, what meritorious arguments he could have raised on direct appeal. See
Roe v. Flores-Ortega, 528 U.S. 470, 471-72 (2000) (finding that the presence of
"nonfrivolous grounds for appeal" is "highly relevant" in determining whether
the defendant was prejudiced under Strickland). Nor has defendant certified
specifically why any such claim of ineffectiveness could not have been filed
                                                                       (continued)
                                                                           A-0222-18T1
                                       20
       Moreover, under the circumstances, there is no evidence that had

defendant been provided additional information 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 an increased sentence. See Lee v. United States, ___ U.S.

___, 137 S.Ct. 1958, 1967 (2017) (holding "[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" and "[j]udges should instead look to

contemporaneous      evidence    to   substantiate   a   defendant's   expressed

preferences"); Strickland, 466 U.S. at 687, 694; State v. DiFrisco, 137 N.J. at

457.

       Here, with respect to the 1991 plea, defendant was facing seventeen counts

including numerous drug charges, a weapons charge, burglary, aggravated

assault, resisting arrest, and obstruction, but pled guilty to only four charges

with the State agreeing to dismiss the remaining counts. As to his 2001 plea,

according to the court, defendant was facing "up to twenty-five years in prison"

for six counts including aggravated assault, resisting arrest, and a weapons

charge.




within the time periods prescribed in Rule 3:22-12(a)(1) or Rule 3:22-
12(a)(2)(B), or why those periods should be relaxed for those specific claims.
                                                                         A-0222-18T1
                                       21
                                         V.

         We also reject defendant's argument in point two of his appeal related to

the 2001 convictions that his counsel provided ineffective assistance because he

advised defendant to accept a guilty plea rather than pursue the affirmative claim

of self-defense at trial. That claim is time-barred and substantively without

merit.

         First, defendant's claim is clearly time barred.      Defendant was a

participant in the altercation that led to his claimed injuries and attested in his

petition that he made counsel aware of that potential defense, yet failed to raise

any claims regarding his counsel's ineffectiveness until over a decade after his

convictions. Defendant clearly failed to satisfy the requirement of either Rule

3:22-12(a)(1) or Rule 3:22-12(a)(2)(B), or establish a basis to relax those time

deadlines.

         Moreover, defendant's claims are bald assertions and are insufficient to

establish a claim of ineffective assistance of counsel under Strickland, in any

event. See State v. Cummings, 321 N.J. Super. 154, 169-71 (App. Div. 1999).

Finally, as the court correctly concluded, any claim of self-defense and

innocence is contradicted by both his plea form and colloquy during the plea




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hearing wherein defendant admitted his guilt, and specifically that he intended

to cause serious bodily injury to the victim with a knife.

                                       VI.

      Finally, we reject defendant's claim in point three of his brief related to

his 2001 convictions that the court improperly applied the four-factor "manifest

injustice" standard for withdrawing pleas under Slater to his ineffective

assistance claim, as it is clear that the court properly analyzed defendant's PCR

claims under the Strickland test. The court also reviewed defendant's claims

related to his 2001 convictions under Slater because defendant's petition

specifically claimed that "his plea was not informed and thus he should be

allowed to withdraw his plea."

                                      VII.

      In sum, we conclude defendant's PCR claims are time-barred and

substantively without merit. Consequently, defendant was not entitled to an

evidentiary hearing. To the extent we have not specifically addressed any of

defendant's remaining arguments, it is because we find insufficient merit in these

arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




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