                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-0777-16T3

STATE OF NEW JERSEY,
                                       APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                            July 23, 2018

v.                                        APPELLATE DIVISION

KEVIN BROWN,

     Defendant-Appellant.

__________________________________

         Argued November 1, 2017 – Decided July 23, 2018

         Before Judges Fuentes, Manahan and Suter.1

         On appeal from Superior Court of New Jersey,
         Law Division, Bergen County, Indictment No.
         08-12-2199.

         Eric M. Mark argued the cause for appellant.

         Michael R. Philips, Assistant Prosecutor,
         argued the cause for respondent (Gurbir S.
         Grewal, Bergen County Prosecutor, attorney;
         Michael R. Philips, of counsel and on the
         brief; Nicole Paton, on the brief).

     The opinion of the court was delivered by

FUENTES, P.J.A.D.




1
  Judge Suter did not participate at oral argument.            She was
added to this case with the consent of the parties.
     Defendant       Kevin    Brown       appeals     from    the     order    of    the

Criminal     Part       denying   his      petition    seeking       post-conviction

relief (PCR).       We affirm.

     On December 19, 2008, a Bergen County Grand Jury returned

an indictment against defendant charging him with third-degree

possession    of    marijuana       with    intent    to     distribute,       N.J.S.A.

2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(11); fourth-degree possession

of   marijuana,          N.J.S.A.     2C:35-10(a)(3);          and      second-degree

endangering       the     welfare    of     a   child,       N.J.S.A.       2C:24-4(a).

Defendant was represented at all proceedings related to this

case by a staff attorney from the Bergen County Office of the

Public Defender.

     On    July     7,    2010,     defendant    entered       into     a   negotiated

agreement with the State through which he pled guilty to the

first count in the indictment charging him with third-degree

possession of marijuana with intent to distribute.2                     As described

by the prosecutor, in exchange for defendant's guilty plea, the

State agreed to dismiss the remaining counts in the indictment

and recommend that the court sentence defendant to a term of


2
  In response to his attorney's questions in the course of
providing a factual basis in support of his guilty plea,
defendant stated under oath that he had in his possession
"approximately . . . five pounds" of marijuana at the time of
his arrest.




                                            2                                  A-0777-16T3
probation conditioned upon serving 364 days in the Bergen County

jail.3

     After placing defendant under oath, the judge asked him the

following questions with respect to his immigration status and

apprised him of the potential legal consequences of his decision

to plead guilty:

         THE COURT: All right.       Now, are you a United
         States citizen?

         DEFENDANT: No.4

         THE COURT: Do you understand [that] if
         you're not a United States citizen or
         national you may be deported by virtue of
         your plea of guilty?

         DEFENDANT: Yes, sir.

         THE COURT: Do you understand that if you
         plead guilty to a crime of a certain
         aggravated felony under federal law you will
         be subject . . . to deportation or removal?

         DEFENDANT: Yes, sir.

         THE COURT: Do you understand you have the
         right   to  seek   legal  advice   on  your
         immigration status prior to entering a plea
         of guilty?


3
  Defendant's plea counsel testified at the PCR evidentiary
hearing that the State's offer during the motion to suppress was
seven years in State prison.
4
  The appellate record also includes    a copy of the standard Plea
Form defendant completed and signed     with the assistance of his
attorney.   Question 17a in the Plea     Form asked defendant: "Are
you a citizen of the United States?"     Defendant circled "No."



                                 3                           A-0777-16T3
         DEFENDANT: Yes, sir.

         THE COURT: All right.    And you have sought
         advice on the immigration aspect of it?

         DEFENDANT: No.

         THE COURT:    Are     you       prepared   to    proceed
         today?

         DEFENDANT: No – yes, yes, your Honor. Yes.

         THE COURT: So     you're not seeking any
         additional time to seek any advice as to the
         immigration[?]

         DEFENDANT: No, your Honor.

         THE COURT: And, again, you fully             understand
         that you're pleading guilty to               possession
         with intent to distribute a                  controlled
         dangerous substance.    If that's             a certain
         aggravated felony, then you would            be subject
         to deportation. Do you understand            that?

         DEFENDANT: Yes, sir, I do.

    The court sentenced defendant on September 17, 2010.                   The

judge found aggravating factors three, the risk that defendant

will commit another offense, N.J.S.A. 2C:44-1(a)(3), six, the

extent of defendant's prior criminal record and the seriousness

of the offenses,5 N.J.S.A. 2C:44-1(a)(6), and nine, the need for

deterring defendant and others from violating the law, N.J.S.A.

2C:44-1(a)(9).   The   judge   concluded       that      "[t]he   aggravating

5
  The judge noted that defendant's prior record included eight
disorderly persons offenses, possession of marijuana, and one
indictable conviction for unlawful possession of a handgun.




                                     4                               A-0777-16T3
factors     clearly         and    convincingly        outweigh     the      mitigating

factors."6    Despite reaching this conclusion, the judge sentenced

defendant    to   a    three-year        term    of    probation    subject         to   the

payment of the statutory costs and penalties.                      Although the plea

agreement permitted the court to sentence defendant to serve up

to   364   days   in    the       Bergen   County      jail   as    a    condition        of

probation, the judge opted not to impose any jail time.

      Defendant       did    not    file   a    direct    appeal        to   this    court

challenging    any     aspect       of   his    plea   hearing     or    the   sentence

imposed by the court.             On March 22, 2016,7 defendant, represented

by private counsel, filed this PCR petition alleging ineffective

assistance of trial counsel.               Defendant averred that his trial

attorney

             did not advise [him] that a plea to an
             aggravated felony would result in virtually
             certain deportation and that [his] only
             chance at relief would be to show it is more
             likely than not [he] would be tortured if
             returned to [his] home country.   In regards
             to [his] immigration situation, [defendant's
             attorney] told [him] only "as long as you

6
  Although the judge did not make a specific finding with respect
to mitigating factors, the Judgment of Conviction dated
September 20, 2010 shows the judge did not find any mitigating
factors.
7
  The copy of the PCR petition submitted by defendant as part of
the appellate record shows defendant signed the petition on
March 11, 2016.      However, defendant does not dispute the
Criminal Part received the PCR petition on March 22, 2016.




                                           5                                    A-0777-16T3
            don't do a year and a day in jail, you're
            fine."

       Defendant also included as part of the appellate record a

copy of a formal decision and an order issued by United States

Immigration Judge Daniel A. Morris on September 20, 2016.                      In

this    decision,   Judge   Morris      states,    in   relevant   part,     that

defendant

            is a native and citizen of . . . Jamaica who
            was admitted to the United States at New
            York, New York on April 16, 1988 as a lawful
            permanent resident . . . On October 9, 2015,
            the Department of Homeland Security (DHS)
            personally served [defendant] with a Notice
            to   Appear  (NTA)   charging  that  he   is
            removable under INA8 §237(a)(2)(A)(iii) and
            INA §237(a)(2)(B)(i).

       The judge assigned to hear defendant's PCR petition was the

same judge who presided over the plea and sentencing hearings.

On July 11, 2016, the judge convened the attorneys in the case

to determine whether an evidentiary hearing was warranted.                    The

PCR judge noted for the record that the staff attorney from the

Bergen County Office of the Public Defender, who represented

defendant during the plea negotiations and at the July 7, 2010

plea hearing, was present with the original files.                 Despite his

repeated    statements      that   he       had   not   decided    whether     an

evidentiary hearing was necessary, the judge allowed both the


8
    INA stands for "Immigration and Naturalization Act."



                                        6                              A-0777-16T3
prosecutor and PCR counsel to question under oath defendant's

original counsel, a woman who was not married to defendant, but

was described by PCR counsel as defendant's "life partner[] for

27 years," and finally, defendant himself.

      These three individuals were thoroughly questioned by the

prosecutor, PCR counsel, and the PCR judge about every detail

concerning the discussions that led to defendant's guilty plea

on July 7, 2010.            In short, notwithstanding the PCR judge's

disclaimer concerning the nature of these proceedings, defendant

was afforded an evidentiary hearing within the meaning of Rule

3:22-10.      At the conclusion of the                evidentiary hearing, PCR

counsel argued that plea counsel erroneously advised defendant

there would not be any negative immigration consequences as long

as the sentence imposed by the court was less than "a year and a

day."   The    prosecutor     argued    that     at    the   time    of   the    plea

hearing,     defendant's     only    concern    was    to    minimize     his   penal

exposure.     According to the prosecutor, "this immigration issue

has   only    become   an    issue    once     [defendant]     was   arrested      by

immigration authorities."           The PCR judge reserved decision.

      In a letter-opinion dated August 25, 2016, the PCR judge

reviewed the procedural history of the case, and articulated the

two-prong test established by the United States Supreme Court in

Strickland v. Washington, 466 U.S. 668 (1984), and subsequently




                                        7                                   A-0777-16T3
adopted by our Supreme Court in State v. Fritz, 105 N.J. 42

(1987), as supplemented by Padilla v. Kentucky, 559 U.S. 356,

366 (2010) and State v. Nunez-Valdez, 200 N.J. 129, 139 (2009),

and concluded defendant had not met his burden of proving "plea

counsel" was ineffective.        The PCR judge gave the following

explanation for his ruling:

         There is no evidence that trial counsel gave
         defendant inaccurate or misleading advice
         other   than   bald  assertions   from   the
         defendant himself.   Even more importantly,
         the defendant was put on notice of the
         possible immigration consequences through
         both the plea forms and the Judge in the
         case.   Therefore, this [c]ourt finds that
         the defendant is unable to establish a
         sufficient claim of ineffective assistance
         of counsel.

    Against   this     record,    defendant       appealed     raising    the

following arguments:

         I.   INEFFECTIVE ASSISTANCE OF COUNSEL

              A.     Standard of Review.

              B.   [Defendant's trial  counsel]
              Gave Mr. Brown Patently Incorrect
              Advice.

              1. Question        1:        What   was    the
              Advice?

              2. Question        2:       Was   the   Advice
              Wrong?

              C. Mr. Brown was Prejudiced by his
              Attorney's Incorrect Advice.




                                      8                             A-0777-16T3
      This matter came before this court for oral argument on

November 1, 2017.          In the course of argument, we noted that

defendant's PCR petition was filed on March 22, 2016, more than

five years from September 20, 2010, the date the trial court

signed the Judgment of Conviction.              Defendant did not directly

raise nor address the standard for relaxing Rule 3:22-12(a)'s

five-year procedural bar before the PCR judge.              We asked counsel

how   the   Criminal   Part    could    decide    this   PCR    without      first

addressing     the   procedural      hurdle     presented      in   Rule     3:22-

12(a)(1), which states, in relevant part:

            First Petition For Post-Conviction Relief.
            Except as provided in paragraphs (a)(2),
            (a)(3), and (a)(4) of this rule, no petition
            shall be filed pursuant to this rule more
            than 5 years after the date of entry
            pursuant to Rule 3:21-5 of the judgment of
            conviction that is being challenged unless:

            (A) it alleges 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[.]

            [(Emphasis added).]

      In order to allow both appellate counsel and the prosecutor

sufficient    time   to    more    thoroughly    address    this    potentially

dispositive procedural issue, we entered a sua sponte order on

November     13,   2017,    that    directed     the   attorneys     to    submit




                                       9                                  A-0777-16T3
supplemental briefs, not to exceed twenty-five pages, addressing

the following issues: (1) Is the procedural bar in Rule 3:22-

12(a)(1)(A) subject to waiver if the State fails to raise it

before the PCR court?; and (2) If the rule's preclusive effect

is not subject to waiver, should the remedy on appeal be to

either   (a)    remand     the    matter      to   the   PCR   court     to    permit

defendant an opportunity to establish excusable neglect and a

reasonable probability that if his factual assertions are true,

enforcement     of   the   time    bar     would    result     in   a   fundamental

injustice; OR (b) review the record developed before the PCR

court as is and decide the matter on appeal as a matter of law.

    Both       parties     submitted       their    supplemental        briefs       as

directed.      We first address the issue of waiver.                      Defendant

argues he raised the five-year procedural bar when he noted in

his verified petition:

            I had no reason to suspect this crime would
            guarantee my deportation because I have been
            convicted of other drug offenses and never
            had immigration consequences.   The only way
            I would have known was with proper advice.
            Of all my convictions, this is the only
            aggravated felony.

            It is a fundamental injustice for a non-
            citizen   to   be    convicted    of   a   crime
            guaranteeing deportation and exile from a
            long life with my family when it was
            possible    to    prevent    such    exile    by
            negotiating a plea to a non-aggravated
            felony or completing the motion to suppress




                                         10                                   A-0777-16T3
           and   taking  the   case  to   trial  if                 an
           immigration-safe plea was not possible.

    The    State's      supplemental     brief    relies     on    this    court's

decision in State v. Cann, 342 N.J. Super. 93, 101-02 (App. Div.

2001), in which we held: "A petition is time-barred if it does

not claim excusable neglect, or allege the facts relied on to

support that claim."          The State emphasizes that defendant did

not present "any facts regarding any timeline beyond the date of

his guilty plea."         With respect to this court's query as to

whether   we   should    remand   the    matter       to   allow   defendant      to

develop the appropriate record, the State argues that defendant

is not entitled to a "second bite of the apple because facts

establishing    excusable     neglect    must    be    alleged     in    the   first

place."

    The   parties'      supplemental     submissions        were   not    entirely

responsive to this court's concerns.             Defendant did not directly

raise nor address the standard for relaxing Rule 3:22-12(a)'s

five-year procedural bar before the PCR judge.                     Viewed in the

light most favorable to defendant, the statements in his PCR

petition obliquely provide an explanation for his failure to

seek PCR before his detention by immigration authorities.                        This

does not address defendant's failure to heed the trial judge's

suggestion     to   consult    with     an   immigration      attorney         before

deciding to plead guilty to a third-degree offense in which he



                                       11                                  A-0777-16T3
admitted to possessing approximately five pounds of marijuana

with the intent to distribute.       As the Court noted in Padilla:

            Immigration law can be complex, and it is a
            legal specialty of its own. Some members of
            the   bar   who    represent    clients    facing
            criminal charges, in either state or federal
            court or both, may not be well versed in it.
            There   will,     therefore,   undoubtedly     be
            numerous situations in which the deportation
            consequences    of   a   particular    plea   are
            unclear or uncertain.        The duty of the
            private practitioner in such cases is more
            limited.    When the law is not succinct and
            straightforward . . ., a criminal defense
            attorney need do no more than advise a
            noncitizen client that pending criminal
            charges   may    carry   a   risk   of    adverse
            immigration consequences.        But when the
            deportation consequence is truly clear . . .
            the duty to give correct advice is equally
            clear.

            [Padilla, 559 U.S. at 369 (emphasis added).]

       As a staff attorney in the Public Defender's office, trial

counsel's responsibility to defendant was to provide a competent

defense to the criminal charges filed against him and to apprise

him of the potential collateral consequences a conviction may

have   on   his   immigration   status.   Ibid.   At   the   evidentiary

hearing, defendant testified that his trial attorney told him

that his conviction would not have adverse consequences on his

immigration status provided any custodial sentence imposed by

the court was less than a year and one day.             The PCR judge




                                    12                          A-0777-16T3
rejected defendant's testimony as not credible.                   The PCR judge

provided the following explanation in support of his finding:

            After evaluating the sufficiency of the
            claim of [erroneous advice] the defendant
            alleges to have received from trial counsel,
            it is clear from the record and the plea
            forms, that defendant knew the crime he was
            pleading to may constitute an aggravated
            felony and as such, subjected him to
            deportation. Further, defendant knew he had
            the right to seek advice from an outside
            immigration counsel and would be afforded
            time from the court if he so desired as can
            be seen in both the record and the standard
            plea form.   The defendant in his own words
            told the court that "I wish for a chance at
            life without going to jail."       Also, at
            sentencing defendant acknowledged, on the
            record, he may be deported, and once again
            declined   the  opportunity   to  speak   to
            immigration counsel.     It is clear that
            defendant was on notice of the fact that
            deportation was a possible consequence of
            his plea.

    As    an   appellate    court,     we   are    bound   to   uphold   a    trial

judge's factual findings "which are substantially influenced by

[the judge's] opportunity to hear and see the witnesses and to

have a feel of the case, which a reviewing court cannot enjoy."

Nunez-Valdez, 200 N.J. at 141 (quoting State v. Elders, 192 N.J.

224, 244 (2007)).

    Our     Supreme      Court   has   reaffirmed      and      "emphasized    the

important      policy"     underpinning      the     requirement      that     PCR

petitions be timely filed:




                                       13                                A-0777-16T3
             There are good reasons for [Rule 3:22-12].
             As   time   passes    after    conviction,   the
             difficulties associated with a fair and
             accurate reassessment of the critical events
             multiply.    Achieving "justice" years after
             the fact may be more an illusory temptation
             than   a  plausibly     attainable   goal   when
             memories have dimmed, witnesses have died or
             disappeared,    and    evidence   is   lost   or
             unattainable. . . . Moreover, the Rule
             serves to respect the need for achieving
             finality of judgments and to allay the
             uncertainty associated with an unlimited
             possibility    of    relitigation.    The   Rule
             therefore     strongly      encourages     those
             believing   they    have   grounds   for   post-
             conviction relief to bring their claims
             swiftly, and discourages them from sitting
             on their rights until it is too late for a
             court to render justice.

             [State v. McQuaid, 147 N.J. 464, 485 (1997)
             (quoting State v. Mitchell, 126 N.J. 565,
             575-76 (1992)).]

      Mindful of these policy considerations, when a first PCR

petition shows it was filed more than five years after the date

of entry of the judgment of conviction, we hold that a PCR judge

has   an     independent,    non-delegable         duty    to    question    the

timeliness of the petition, and to require that defendant submit

competent evidence to satisfy the standards for relaxing the

rule's     time   restrictions   pursuant     to    Rule   3:22-12.     Absent

sufficient    competent     evidence    to   satisfy      this   standard,   the

court does not have the authority to review the merits of the

claim.




                                       14                              A-0777-16T3
       Here,   the   PCR   judge    found       defendant      was      aware    of    the

immigration     consequences       of    his    conviction        at    the     time    he

decided to plead guilty.           Stated differently, defendant did not

show "excusable neglect" to justify filing a facially untimely

PCR    petition.       Despite     this        finding,     the      judge      reviewed

defendant's claims of ineffective assistance of trial counsel

and found them to be without merit.                 The record supports the PCR

judge's ruling.        The record of the plea hearing shows the trial

judge gave defendant clearly worded warnings of the potential

immigration consequences of his conviction.                   The judge also gave

defendant      the   opportunity    to       consult    with      an    attorney       who

specializes     in    immigration       law.        Defendant      failed       to    take

advantage of this opportunity and made a knowing, voluntary, and

intelligent decision to proceed.

       A defendant cannot decide to remain intentionally ignorant

of    the   legal    consequences       of    his    decision      as    a    means      of

establishing excusable neglect.                 We     thus       affirm        the    PCR

judge's decision to deny defendant's petition, but for reasons

other than those expressed by the judge.                  See State v. Adubato,

420 N.J. Super. 167, 176 (App. Div. 2011).                        Specifically, we

hold that defendant is barred from seeking PCR because his first

petition was filed "more than 5 years after the date of entry

pursuant to Rule 3:21-5 of the judgment of conviction that is




                                         15                                      A-0777-16T3
being challenged," and because he failed to allege facts showing

that the delay was due to excusable neglect and "that there is a

reasonable   probability   that   if    [his]   factual   assertions   were

found to be true[,] enforcement of the time bar would result in

a fundamental injustice."    R. 3:22-12(a)(1)(A).

    Affirmed.




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