STATE OF NEW JERSEY VS. ERNEST FRANCOIS (97-08-3422, ESSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-1163-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ERNEST FRANCOIS,
a/k/a JAMAL BAPTISTE,
ERNEST FRANCYS,
Defendant-Appellant.
_______________________
Submitted February 23, 2021 – Decided March 15, 2021
Before Judges Yannotti and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 97-08-3422.
Joseph E. Krakora, Public Defender, attorney for
appellant (Mark Zavotsky, Designated Counsel, on the
brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Matthew E.
Hanley, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Ernest Francois appeals from an October 8, 2019 order denying
his petition for post-conviction relief (PCR). We affirm.
In December 1998, defendant pled guilty to third-degree conspiracy,
N.J.S.A. 2C:5-2, and third-degree possession of a controlled dangerous
substance (CDS), cocaine, with intent to distribute within 1000 feet of a school
zone, N.J.S.A. 2C:35-7. Defendant completed plea forms, which confirmed he
was not a United States citizen and acknowledged he may be deported as a result
of his plea. During the plea colloquy, defendant testified he was satisfied with
his attorney's services and was voluntarily entering into the plea. In April 1999,
he was sentenced to three years' probation with 364 days in jail to be served on
the weekends. Defendant did not appeal from this conviction or sentence.
In a separate matter, stemming from a 2002 incident, defendant was tried
and convicted by a jury for reckless manslaughter, possession of a handgun, and
possession of a handgun for an unlawful purpose. We affirmed defendant's
convictions and remanded his sentence for reasons unrelated to this appeal.
State v. Francois, Docket No. A-5739-03 (App. Div. June 9, 2006) (slip op. at
25).
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In July 2018, defendant filed a pro se PCR petition challenging the guilty
plea. His certification stated:
My attorney told me if I pled guilty I would not face
deportation. He barely even mentioned that I would
face immigration issues. My attorney said this charge
was not deportable and I do not need to worry. If I
would [have known] this I would [have] went to trial to
prove my innocence.
Through PCR counsel, defendant filed another certification stating:
I went through the plea form with my attorney and he
circle[d] "[y]es" for question [seventeen], indicating
that I was not a U.S. citizen and that I may be deported
by virtue of the plea. My attorney told me not to worry,
that I would not face deportation. He barely said
anything about immigration consequences other than to
tell me that the charge was not deportable and that I did
not need to worry. This was not correct. I am now
facing deportation because of this charge[.]
[(emphasis added).]
The PCR judge denied the petition without an evidentiary hearing. The
judge found the petition was time-barred by Rule 3:22-12 because it was filed
nineteen years after defendant's guilty plea, and the five-year time limit could
not be enlarged pursuant to Rule 1:3-4.
Addressing whether defendant had demonstrated excusable neglect for the
late filing, the judge noted defendant's claim emanated not from a lack of advice
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regarding the immigration consequences, but "affirmative mis[-]advice[.]" He
stated:
Essentially, . . . the claim here is . . . the late filing is
excusable because . . . defendant was recently served
with the complaint for removal and . . . was not aware
of any deportation consequences of the guilty plea prior
to that. The record at the time of the guilty plea totally
undermines such a claim.
The judge cited extensively from defendant's plea colloquy, noting
defendant testified he read and initialed the plea forms after reviewing them with
his attorney. Citing the plea forms, the judge noted defendant "[c]ircled yes" to
question seventeen which stated: "Do you understand that if you [are] not a
United States citizen or national, you may be deported by virtue of your guilty
plea?" The judge noted defendant's answer to question twenty was "[a]lso
significant" because it stated: "List any other promises or representations that
have been made by you, the Prosecutor, or your defense attorney, or anyone else
as a part of the plea of guilty. Answer[: ']None.[']"
The judge concluded "[defendant's] eyes were wide open at the time of
the plea. There is no basis to find any neglect, never mind excusable neglect."
The judge found the nineteen-year-delay "would significantly prejudice the
State[.]" He also found that vacating the plea would not have "any effect upon
the deportation proceedings because the offense . . . for which [Immigration and
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Customs Enforcement is] seeking deportation was one which [was] obtained by
jury verdict for an offense that occurred after this one, in 2006[.]"
The judge concluded defendant did not establish a prima facie case of
ineffective assistance of counsel because the plea colloquy refuted his claim
counsel misadvised him. He noted defendant's admission during the plea to
possessing ninety-three bottles of cocaine within 1000 feet of an elementary
school, which he intended to sell, refuted his claim of innocence. The judge
stated:
The [c]ourt also notes that the original plea . . . offer
was three years, [with] eighteen months . . . of parole
ineligibility . . . rather than face any mandatory terms
of imprisonment or any custodial term in State Prison
through the efforts of counsel . . . that was negotiated
to a non-custodial sentence. The defendant received
ample benefits by virtue of that plea agreement,
eliminating any custodial term after the sentencing.
The judge concluded no evidentiary hearing was required because the record
was sufficient to address defendant's PCR claims.
Defendant raises the following points on appeal:
POINT I – DEFENDANT'S PETITION FOR POST
CONVICTION RELIEF SHOULD NOT BE TIME
BARRED BECAUSE DEFENDANT'S DELAY IN
FILING WAS DUE TO EXCUSABLE NEGLECT
FOR HAVING RECEIVED AFFIRMATIVE [MIS-
ADVICE] OF COUNSEL, WHICH ONLY BECAME
EVIDENT UPON HIS DEPORTATION
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PROCEEDINGS, THEREBY SATISFYING THE
STANDARD THAT THE INTERESTS OF JUSTICE
REQUIRE HIS CLAIMS BE HEARD.
POINT II – DEFENDANT RECEIVED
INEFFECTIVE ASSISTANCE OF COUNSEL FOR
COUNSEL'S AFFIRMATIVE [MIS-ADVICE] THAT
HE WOULD NOT BE SUBJECT TO DEPORTATION
PROCEEDINGS AS A RESULT OF ENTERING A
GUILTY PLEA.
(A) APPLICABLE LAW.
(B) DEFENDANT RECEIVED INEFFECTIVE
ASSISTANCE BECAUSE OF COUNSEL'S
[MIS-ADVICE] REGARDING HIS EXPOSURE
TO DEPORTATION AS A RESULT OF
PLEADING GUILTY TO THE INDICTMENT
SUBJECT TO THIS CASE.
Where no evidentiary hearing was conducted in the denial of a PCR
petition, "we may review the factual inferences the court has drawn from the
documentary record de novo." State v. Blake, 444 N.J. Super. 285, 294 (App.
Div. 2016). We also review de novo the trial court's conclusions of law. Ibid.PCR is "New Jersey's analogue to the federal writ of habeas corpus." State
v. Cummings, 321 N.J. Super. 154, 164 (App. Div. 1999) (citing State v.
Afanador, 151 N.J. 41, 49 (1997); State v. Preciose, 129 N.J. 451, 459 (1992)).
A PCR claim "must be established by a preponderance of the credible evidence."
State v. McQuaid, 147 N.J. 464, 483 (1997) (citing Preciose, 129 N.J. at 459).
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PCR "is cognizable if based upon . . . [s]ubstantial denial in the conviction
proceedings of defendant's rights under the Constitution of the United States or
the Constitution or laws of the State of New Jersey." R. 3:22-2(a). The Sixth
Amendment of the United States Constitution and Article I, paragraph 10 of the
New Jersey Constitution both guarantee effective assistance of legal defense
counsel to a person accused of a crime. See State v. Porter, 216 N.J. 343, 352
(2013) (citing Strickland v. Washington, 466 U.S. 668, 685-86 (1984)).
A defendant may use PCR "to challenge . . . [a] final judgment of
conviction which could not have been raised on direct appeal." McQuaid, 147
N.J. at 482. "[P]etitioners are rarely barred from raising ineffective-assistance-
of-counsel claims on [PCR]" under New Jersey case law, Preciose, 129 N.J. at
459-60, and "[o]ur courts have expressed a general policy against entertaining
ineffective-assistance-of-counsel claims on direct appeal because such claims
involve allegations and evidence that lie outside the trial record ." Id. at 460.
Defendant argues his petition should not have been time barred because
his delay was due to excusable neglect. He claims he first learned he would be
deported during the deportation proceedings. He asserts although he
acknowledged he could be subject to deportation on the plea form, counsel did
not discuss the issue with him at the time of the plea and did not elicit defendant's
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understanding about this issue during the plea colloquy. Defendant asserts he
filed his petition immediately on learning he would be deported. He argues an
evidentiary hearing is necessary because his claim is based on disputed facts
relating to counsel's conduct and affirmative misrepresentation, which falls
outside of the record of the plea proceeding.
In determining whether a defendant has established ineffective assistance
of counsel "a reviewing court must determine: (1) whether counsel's
performance 'fell below an objective standard of reasonableness,' . . . and if so,
(2) whether there exists a 'reasonable probability that, but for counsel's
unprofessional error, the result of the proceeding would have been different[.]'"
State v. Castagna, 187 N.J. 293, 313-14 (2006) (quoting Strickland, 466 U.S. at
688, 694). See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the
Strickland test in New Jersey). Where a claim of ineffective assistance of
counsel follows a guilty plea, the defendant must prove counsel's deficient
representation and "a reasonable probability that, but for counsel's errors, he
would not have pleaded guilty and would have insisted on going to trial." State
v. Brewster, 429 N.J. Super. 387, 392 (App. Div. 2013) (quoting Hill v.
Lockhart, 474 U.S. 52, 59 (1985)).
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A defendant may satisfy the first prong of the Strickland test "by a
showing that counsel's acts or omissions fell outside the wide range of
professionally competent assistance considered in light of all the circumstances
of the case." State v. Allegro, 193 N.J. 352, 366 (2008) (quoting Castagna, 187
N.J. at 314). However, a defendant "must do more than make bald assertions
that he was denied the effective assistance of counsel. He must allege facts
sufficient to demonstrate counsel's alleged substandard performance."
Cummings, 321 N.J. Super. at 170.
Plea counsel is required to provide a non-citizen defendant sufficient
information regarding immigration consequences of a guilty plea. See State v.
Nuñez-Valdéz, 200 N.J. 129, 140, 143 (2009). "[W]rong or inaccurate advice
from counsel about the immigration consequences, and specifically deportation,
that would result from entry of a guilty plea, present[s] ineffective assistance of
counsel." State v. Gaitan, 209 N.J. 339, 361 (2012).
Nuñez-Valdéz was the applicable law at the time of defendant's plea. 1 The
Nuñez-Valdéz Court held there may be ineffective assistance of counsel where
1
See Gaitan, 209 N.J. at 373-74, holding Padilla v. Kentucky, 559 U.S. 356,
368-69 (2010), which states that counsel has an affirmative duty to correctly
advise a defendant of the risk of deportation where the terms of the relevant
immigration statute are "succinct, clear, and explicit in defining the removal
consequence" of a plea does not apply retroactively.
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the advice given to a defendant regarding the removal consequences of a guilty
plea is false, or inaccurate and affirmatively misleading, such as where counsel
tells a defendant there will be no immigration consequences when pleading to
an offense that is indeed presumptively deportable. Gaitan, 209 N.J. at 381;
Nuñez-Valdéz, 200 N.J. at 140-43.
Here, one of the charges to which defendant pled guilty was third-degree
possession of CDS with intent to distribute. Under 8 U.S.C. § 1227(a)(2)(B)(i),
a non-citizen
who at any time after admission has been convicted of
a violation of . . . any law or regulation of a [s]tate, the
United States, or a foreign country relating to a
controlled substance . . . other than a single offense
involving possession for one's own use of [thirty] grams
or less of marijuana, is deportable.
The offense to which defendant pled guilty was deportable. However, aside
from defendant's bald assertion, the record lacks any suggestion plea counsel
affirmatively misinformed defendant that he would not be deported.
Notwithstanding the claim he was misadvised, defendant's deportation
proceedings do not emanate from the 1998 plea. Furthermore, there is no
evidence plea counsel's performance was substandard or that—but for counsel's
advice—defendant would not have pled and proceeded to a trial.
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Finally, defendant's claims are clearly time-barred. Rule 3:22-12 states a
first petition for PCR may not be filed more than five years after the date of
entry of the judgment of conviction being challenged unless "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 . . . ." R. 3:22-12(a)(1)(A). The purpose of the PCR five-
year time bar "is to encourage defendants reasonably believing they have
grounds for [PCR] to bring their claims swiftly and discourages them from
sitting on their rights until it is simply too late for a court to render justice."
Cummings, 321 N.J. Super. at 165.
Excusable neglect "encompasses more than simply providing a plausible
explanation for a failure to file a timely PCR petition." State v. Norman, 405
N.J. Super. 149, 159 (App. Div. 2009). To determine whether excusable neglect
is present, the 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." Ibid.(quoting Afanador, 151 N.J. at 52).
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As stated previously, defendant filed his PCR petition nineteen years after
the 1998 plea. The preponderance of the credible evidence in the record shows
he was first aware of the possible deportation consequences when he entered his
plea. Furthermore, defendant does not challenge the PCR judge's findings that
the State would be prejudiced if PCR were granted. His assertion that he would
have proceeded to trial is unsupported by the record, the charges he avoided by
entering a plea, and his sentence. For these reasons, defendant has not
demonstrated excusable neglect to overcome the time bar.
Affirmed.
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