STATE OF NEW JERSEY VS. GLENROY A. DEERÂ (88-10-3258 AND 86-04-1304, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0430-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GLENROY A. DEER,
Defendant-Appellant.
_______________________________
Submitted August 1, 2017 – Decided August 8, 2017
Before Judges Sabatino and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment Nos.
88-10-3258 and 86-04-1304.
Joseph E. Krakora, Public Defender, attorney
for appellant (Karen A. Lodeserto, Designated
Counsel, on the brief).
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Frank J.
Ducoat, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Glenroy Deer appeals the trial court's decision for
post-conviction relief ("PCR") relating to his respective 1987 and
1989 convictions of various offenses. We affirm.
Although the documentation in the present appellate record
is not comprehensive, it appears that defendant pled guilty in
July 1987 to second-degree possession of a controlled dangerous
substance with the intent to distribute, N.J.S.A. 24:21-19(a)(1),
and was sentenced to a one-year period of probation. Thereafter,
defendant was tried on separate charges and a jury in April 1989
found him guilty of second-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(a), and third-degree unlawful
possession of a handgun, N.J.S.A. 2C:39-5(b). The trial court in
that weapons case sentenced defendant to a seven-year custodial
term with a three-year parole ineligibility period. Defendant
unsuccessfully appealed his 1989 conviction and sentence to this
court, and certification was subsequently denied. State v. Deer,
122 N.J. 322 (1990).
In 1993, while defendant was still serving his sentence,
federal officials deported him to Jamaica.1 Twenty-one years
later, defendant filed his first PCR petition. In his petition,
he alleges that his respective attorneys in the 1987 drug case and
1
Defendant's present whereabouts are unclear from the record
supplied to us.
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in the 1989 weapons case were constitutionally ineffective.
Specifically, defendant contends that those prior attorneys failed
to advise him about the deportation consequences that would ensue
upon conviction, despite requests he allegedly made to them for
advice concerning the consequences.
In an effort to excuse his long delay in filing his PCR
petition, defendant asserts that he did not discover the
availability of PCR until after he had been deported. He maintains
that his alleged ignorance of the PCR process amounts to "excusable
neglect" under Rule 3:22-12(a)(1), and thus permits the courts to
provide him with a remedy despite the substantial passage of time.
After considering defendant's arguments and the State's
opposition, Judge Siobhan A. Teare issued an oral opinion on August
23, 2016, concluding that defendant's petition was time-barred and
also lacked merit. Among other things, the judge found that
defendant had failed to demonstrate excusable neglect to overcome
the five-year time bar of Rule 3:22-12. Additionally, the judge
found that defendant's petition substantively lacked merit because
he failed to show by a preponderance of the evidence that his
prior counsel had affirmatively provided him with "misadvice"
concerning deportation consequences. Consequently, the judge
discerned no need to conduct an evidentiary hearing.
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In his present brief on appeal, defendant raises the following
points for our consideration:
POINT ONE
DEFENDANT SHOULD BE ENTITLED TO AN EVIDENTIARY
HEARING UNDER STATE V. GAITAN AND UNITED
STATES V. OROCIO.
POINT TWO
THE FIVE-YEAR TIME BAR SHOULD BE RELAXED DUE
TO DEFENDANT'S EXCUSABLE NEGLECT AND/OR THE
INTERESTS OF JUSTICE.
Having considered these arguments in light of the record and the
applicable law, we affirm the dismissal of defendant's PCR
petition. We do so substantially for the reasons noted by Judge
Teare. We add only a few comments.
Rule 3:22-12 plainly requires that a first petition for PCR
be filed within five years after the date of a defendant's
conviction, unless the defendant establishes that his delay beyond
that deadline was due to "excusable neglect" and there also is "a
reasonable probability that if the defendant's factual assertions
were found to be true enforcement of the [five-year] time bar
would result in a fundamental injustice." "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 State
v. Afanador, 151 N.J. 41, 52 (1997)).
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Here, defendant has not proven the required elements of
excusable neglect and fundamental injustice to excuse his delay
of over two decades in pursuing relief from his 1987 and 1989
convictions. His vague and unsubstantiated allegation that he was
not provided with proper advice in the late 1980s by his former
counsel concerning deportation consequences is insufficient to
overcome the extreme untimeliness of his petition. See, e.g.,
State v. Brewster, 429 N.J. Super. 387, 400-01 (App. Div. 2013)
(concluding that the defendant in that case, who delayed twelve
years before filing a PCR petition concerning deportation
consequences, had not shown either excusable neglect or a
fundamental injustice).
Apart from this procedural infirmity, defendant's substantive
claims of his counsel's alleged ineffectiveness are insufficient
to warrant an evidentiary hearing, let alone an order setting
aside his prior convictions. Because defendant was convicted long
before the United States Supreme Court issued its seminal 2010
opinion in Padilla v. Kentucky, 559 U.S. 356, 367, 130 S. Ct.
1473, 1482, 176 L. Ed. 2d 284, 294 (2010) concerning deportation
consequences to a criminal defendant, his claims are governed by
the standards of State v. Nuñez-Valdéz, 200 N.J. 129 (2009). Under
those pre-Padilla standards, a defendant seeking relief based upon
post-conviction deportation consequences can only prevail if he
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demonstrates that his prior counsel provided him with
affirmatively 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).
At most, defendant's petition alludes vaguely and generically
to his former attorneys' failure to tell him about deportation
consequences. Such "bald assertions" of ineffectiveness are
inadequate to support a prima facie claim. State v. Cummings, 321
N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199
(1999); see also State v. Porter, 216 N.J. 343, 349 (2013).
Moreover, unlike the circumstances recently discussed in Lee
v. United States, ___ U.S. ___, ___ S. Ct. ___, ___ L. Ed. 2d ___
(2017) (slip op. at 10)--in which the government conceded that the
defendant's prior counsel had performed deficiently in mistakenly
assuring him that he would not be deported if he pled guilty--we
need not reach in the present case whether defendant was actually
prejudiced by attorney error because no such error has been proven.
To the extent we have not commented on other contentions
subsumed within defendant's brief, we reject them as
unmeritorious. R. 2:11-3(e)(2).
Affirmed.
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