State of New Jersey v. Alexeis Bejerano ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-2913-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALEXEIS BEJERANO,
Defendant-Appellant.
_______________________
Submitted June 3, 2024 – Decided July 5, 2024
Before Judges Berdote Byrne and Bishop-Thompson.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 05-02-0225.
Michael J. Pastacaldi LLC, attorneys for appellant
(Michael J. Pastacaldi, on the briefs).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Patrick F. Galdieri, II, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from an order of May 12, 2023 denying his petition for
post-conviction relief (PCR) without an evidentiary hearing, after the trial judge
ruled his petition was procedurally time-barred and issued an order denying his
motion to withdraw his guilty plea. We affirm for the reasons expressed by the
Honorable Maureen B. Mantineo in her well-reasoned oral opinion. We add the
following comments.
I.
Defendant was indicted in February 2005 on one count of first-degree
distribution of a controlled dangerous substance (CDS), one count of second-
degree distribution of a CDS, two counts of third-degree distribution of a CDS
within 1000 feet of school property, and one count of third-degree unlawful
possession of a loaded shotgun. On June 8, 2005, he pleaded guilty to first-
degree possession of a CDS, and the State recommended a ten-year prison term
with a twenty-seven-month parole disqualifier.
Defendant was sentenced consistent with the plea agreement on October
13, 2005. He claims he reviewed question seventeen on the plea form pertaining
to the immigration consequences of his plea, but his trial counsel told him he
had nothing to be concerned about because the United States does not deport to
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Cuba. He does not dispute he was questioned by the trial judge at the plea
hearing and stated he understood the deportation consequences.
After serving twenty-seven months, defendant was turned over to
Immigration and Customs Enforcement (ICE), which held him for 180 days
before releasing him on ICE supervision. In December 2022, he filed a petition
for PCR, claiming ineffective assistance of counsel for failing to adequately
advise him of immigration consequences and seeking to withdraw his guilty
plea. The PCR judge denied both motions on May 12, 2023. This appeal
followed.
II.
In reviewing a PCR petition, we afford deference to the PCR court's
findings of fact, but our interpretation of the law is de novo. State v. Nash, 212
N.J. 518, 540-41 (2013). Pursuant to Strickland v. Washington, 466 U.S. 668(1984), which our Supreme Court adopted in State v. Fritz, 105 N.J. 42, 67
(1987), a defendant is entitled to PCR for ineffective assistance of counsel if he
proves "[defendant's] counsel's performance was deficient," and counsel's
"deficient performance prejudiced the defense." Id. at 52 (quoting Strickland,
466 U.S. at 687). In addition, where a guilty plea is involved, the defendant
must prove "a reasonable probability [exists] that, but for counsel's errors, [the
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defendant] would not have [pleaded] guilty and would have insisted on going to
trial." State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (second alteration in
original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).
As Judge Mantineo correctly found, defendant's PCR petition is time-
barred pursuant to Rule 3:22-12(a)(1)(A). The rule requires petitions for PCR
to be brought within five years of the date of the judgment of conviction 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). PCR is not a substitute
for direct appeal, and its various procedural bars work to further the public
policy of promoting finality in judicial proceedings. State v. Peoples, 446 N.J.
Super. 245, 254 (App. Div. 2016) (quoting State v. Echols, 199 N.J. 344, 357
(2009)). The five-year time bar "should be relaxed only 'under exceptional
circumstances' because '[a]s time passes, justice becomes more elusive and the
necessity for preserving finality and certainty of judgments increases.'" State v.
Goodwin, 173 N.J. 583, 594 (2002) (alteration in original) (quoting State v.
Afanador, 151 N.J. 41, 52 (1997)). "[T]he extent and cause of the delay, the
prejudice to the State, and the importance of the petitioner's claim" should be
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considered in analyzing whether injustice would occur sufficient to loosen Rule
3:22-12(a)(1)(A)'s time bar. Goodwin, 173 N.J. at 594 (quoting Afanador, 151
N.J. at 52).
Defendant was required to file his PCR petition by October 13, 2010, five
years from the date of the judgment of conviction. Defendant filed his PCR
petition on December 23, 2022, over twelve years after the deadline expired.
Despite this, he argues his neglect in filing the petition was excusable and the
interests of justice permit delay due to prior counsel's failure to advise him of
the immigration repercussions of his plea.
As aptly noted by Judge Mantineo, defendant has not demonstrated
excusable neglect exists or that fundamental injustice would result if the time
bar is enforced. There are no exceptional circumstances present to justify
evading the strong policy favoring finality and certainty in criminal judgments.
See Goodwin, 173 N.J. at 594. Defendant concedes he was made aware of the
immigration consequences of his plea by the trial judge. Furthermore, his claim
that he was not advised the conviction would prevent him from becoming a
United States citizen until 2022 cannot establish the compelling extenuating
circumstances necessary to expand the time bar.
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Defendant never filed a direct appeal. His guilty plea was entered five
years before Padilla v. Kentucky, 559 U.S. 356, 374 (2010) that recognized a
pleading defendant's right to be apprised of immigration consequences, which
has only prospective effect. State v. Antuna, 446 N.J. Super. 595, 600 (App.
Div. 2016). Moreover, he concedes he was told of deportation consequences
and represented he had consulted with several immigration attorneys over the
course of the intervening years, but did not file the PCR until 2022.
To the extent we have not addressed defendant's remaining arguments on
appeal, we find they lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
Affirmed.
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