STATE OF NEW JERSEY VS. BILLY BALISAGE (98-03-0310, UNION 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NOT FOR PUBLICATION WITHOUT THE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-2369-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BILLY BALISAGE,
Defendant-Appellant.
_________________________________
Submitted June 4, 2019 - Decided June 28, 2019
Before Judges Hoffman and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 98-03-0310.
Joseph E. Krakora, Public Defender, attorney for
appellant (Dianne Glenn, Designated Counsel, on the
brief).
Jennifer Davenport, Acting Union County Prosecutor,
attorney for respondent (Carlos Paul Morrow, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Seeking to avoid deportation nearly seventeen years after his conviction
of possession of controlled dangerous substances (CDS) with intent to distribute,
defendant Billy Balisage appeals from an August 25, 2017 Law Division order
denying his petition for post-conviction relief (PCR). He claims he received
ineffective assistance of counsel when he pleaded guilty in 1998 because his
plea counsel did not advise him that he would be deported. He further seeks to
withdraw his guilty plea. The PCR judge determined that the petition was time-
barred, and the facts surrounding his offense lacked "any colorable claim of
innocence" to warrant the withdrawal of his plea. For the reasons that follow,
we affirm.
I.
In 1998, a Union County grand jury indicted defendant, a citizen of Haiti,
and a co-defendant on charges including possession of CDS (cocaine), with
intent to distribute, N.J.S.A. 2C:35-10(a)(1), N.J.S.A. 2C:35-5(a)(1) and
N.J.S.A. 2C:35-5(b)(3), and possession of marijuana with intent to distribute,
N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(12).
The same year, with the advice of counsel, defendant accepted a plea
offer, in accordance with N.J.S.A. 2C:35-12, agreeing to testify against his co-
defendant in exchange for a term of 120 days imprisonment, and probation. On
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his plea form, defendant circled "N/A" in response to question seventeen, which
asked: "Do you understand that if you are not a United States citizen or national,
you may be deported by virtue of your plea of guilty?"
At his plea hearing,1 defendant stated he had an eleventh grade education,
and could read and write English. He confirmed that he "read and underst[ood]
the questions" in the plea form, "answer[ed] the questions truthfully," and was
able to speak to his attorney regarding "any questions about what [he was]
charged with, and/or what was on th[e] form." He further affirmed that he signed
the plea "form after going over [it] with [his] lawyer."
By the time of the second day of defendant's plea hearing, his co-
defendant had already pleaded guilty; nevertheless, defendant went forward with
his plea. At the hearing, defendant recounted that on November 19, 1997, he
was "on the corner of Jefferson and Anna" in Elizabeth, when he walked toward
a "backyard where they had drugs," and when he "came back there was a cop."
He admitted the drugs were his, that it was cocaine, and he had "the intent to
sell it to other people." The judge accepted defendant's plea, finding it
1
The first part of the plea hearing was on September 21, 1998; it was adjourned
until October 13, 1998.
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voluntary, intelligent, and "with a full understanding of the nature and
consequences of the [p]lea."
On January 15, 1999, the court sentenced defendant to the recommended
120 days of imprisonment, and three years of probation. On December 7, 2001,
the court extended defendant's probation for another year after he pleaded guilty
to violating his probation by possessing CDS with intent to distribute. On May
20, 2013, the court entered another judgment of conviction against defendant,
after he pleaded guilty to another drug charge. Defendant received a 364 day
term of imprisonment for that conviction.
On January 4, 2016, almost seventeen years after his original plea and
conviction, defendant filed the PCR petition under review. In the petition,
defendant certified that his counsel did not warn him of the immigration
consequences that came with his plea. He further asserted his counsel did not
discuss or go over the plea, did not discuss discovery, and failed to argue the
distribution charge. His brief before the PCR court added, "It was not until
2013[] that [defendant] became aware that there was a[n] Immigration and
Customs Enforcement (ICE) detainer against him because of his guilty plea to
this offense," and therefore he "was not aware of the immigration consequences
of his guilty plea until after 2013, when he was arrested and detained" by ICE
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officials. The brief asserts that after his arrest, he filed his pro se petition for
PCR.
In June 2016, defendant filed a certification stating that he was "in ICE
[d]etention awaiting deportation." He further stated he "was not aware of the
immigration consequences until sometime [in] July 2015 when [he] was taken
to ICE detention"; this contradicts his brief before the PCR court, which stated
multiple times that he was on ICE detainer in 2013. At oral argument before the
PCR court, defendant's counsel contended defendant did not learn "until after
2013 . . . . of the ICE detainer[,] and he then learned of his attorney's possible
ineffectiveness . . . ." Twice thereafter, defendant's counsel stated defendant
"didn't learn" and "didn't know" about his possible deportation and ICE detainer
"until 2013." His counsel later acknowledged that the "point in time in which
[defendant] learned of th[e] possible deportation was . . . 2013." Defendant's
brief on appeal concedes he was in contact with ICE officials in 2013, but notes
ICE did not arrest him until 2015. The record lacks documentation to support
any of these assertions.
After oral argument, the PCR judge issued a written opinion denying
defendant's petition. The judge found defendant's petition to be time-barred
under both Rule 3:22-12(a)(1), which sets a five-year time limitation after entry
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of a judgment of conviction to file a PCR petition, and Rule 3:22-12(a)(1)(B),
which provides for a one-year limitation period after defendant discovers a
previously unknown factual predicate justifying relief from the conviction.
Specifically, the judge found it "clear that . . . defendant did not file" his petition
"until well beyond the five-year period established" by Rule 3:22-12(a)(1). He
also found the petition failed to meet the one-year limitation of Rule 3:22-
12(a)(1)(B), as "defendant did not file a petition until approximately three years
after he learned of the deportation consequences of his [1999] conviction . . . ."
The judge noted "[t]here is no explanation in the record as to why defendant
waited until 2016 . . . to file his [petition for] PCR."
The PCR judge then considered whether defendant established a reason
under the factors set forth in State v. Mitchell, 126 N.J. 565, 576 (1992), to relax
the applicable time bars. He found the State would be prejudiced in having "to
try and find officers, witnesses, and evidence for a case" almost twenty years
later. The judge further found that the "extent and cause of th[is] delay" would
bring an "obvious prejudice to the State." The judge then found "little to support
a conclusion that there is a reasonable probability that if . . . defendant's factual
assertions were found to be true, enforcement of the time bar would result i n a
fundamental injustice." Finally, the judge found there was no "excusable
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neglect because of the three-year delay [in filing his petition] after learning of
his deportation issue."
On appeal, defendant makes the following arguments:
POINT I
THE PCR COURT ERRED IN DETERMINING
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF WAS TIME-BARRED AND
EXCUSABLE NEGLECT OR EXCEPTIONAL
CIRCUMSTANCE[S] WERE NOT APPLICABLE
PURSUANT TO RULE 3:22-12(A)(1) BECAUSE,
ALTHOUGH DEFENDANT WAS SENTENCED ON
JANUARY 15, 1999, THE COLLATERAL
DEPORTATION CONSEQUENCES W[ERE] NOT
RIPE UNTIL AFTER DEFENDANT WAS
ARRESTED BY IMMIGRATION AND CUSTOMS
ENFORCEMENT IN 2015 AND THE PETITION
WAS SUBMITTED WITHOUT DELAY.
POINT II
THE PCR COURT ERRED IN DENYING
DEFENDANT AN EVIDENTIARY HEARING AS
THERE ARE FACTS OUTSIDE THE RECORD
THAT SUPPORT DEFENDANT'S INEFFECTIVE
ASSISTANCE OF COUNSEL CLAIM.
POINT III
THE PCR COURT ERRED IN DENYING
DEFENDANT'S MOTION TO WITHDRAW HIS
GUILTY PLEA, AS THE FOUR FACTORS OF
STATE V. SLATER WEIGHED HEAVILY IN HIS
FAVOR.
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II.
A.
PCR is New Jersey's analogue to the federal writ of habeas corpus. State
v. Afanador, 151 N.J. 41, 49 (1997) (citing State v. Preciose, 129 N.J. 451, 459
(1992)). It is the vehicle through which a defendant may, after conviction and
sentencing, challenge a judgment of conviction by raising issues that could not
have been raised on direct appeal and, therefore, ensures that a defendant was
not unjustly convicted. State v. McQuaid, 147 N.J. 464, 482 (1997) (citation
omitted).
To establish a prima facie case of ineffective assistance of counsel,
defendant must satisfy the two-prong test articulated in Strickland v.
Washington, 466 U.S. 668, 687 (1984), which our Supreme Court adopted in
State v. Fritz, 105 N.J. 42, 58 (1987). "First, the defendant must show . . .
counsel made errors so serious that counsel was not functioning as the 'counsel'
guaranteed . . . by the Sixth Amendment." Fritz, 105 N.J. at 52 (quoting
Strickland, 466 U.S. at 687). Defendant must then show counsel's deficient
performance prejudiced the defense. Ibid. To show prejudice, defendant must
establish by "a reasonable probability" that the deficient performance
"materially contributed to defendant's conviction . . . ." Id. at 58.
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The denial of an evidentiary hearing for a PCR petition is reviewed for an
abuse of discretion. State v. Brewster, 429 N.J. Super. 387, 401 (App. Div.
2013). However, reviewing courts "may exercise de novo review over the
factual inferences the trial court has drawn from the documentary record." State
v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014).
"If a claim of ineffective assistance follows a guilty plea, the defendant
must prove counsel's constitutionally deficient representation and also 'a
reasonable probability that, but for counsel's errors, he would not have pleaded
guilty and would have insisted on going to trial.'" Brewster, 429 N.J. Super. at
392 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
B.
Defendant contends the PCR court erred in declaring his petition time-
barred, asserting his grounds for filing the PCR were "not ripe until he was
arrested in 2015 and deportation proceedings began." Defendant argues:
The [PCR] court determined that defendant was aware
of the deportation consequences in 2013 but waited
until 2016 to file his petition. It is not clear from the
record exactly what the ICE agent told defendant or
exactly what date the interview even took place in 2013.
A defendant may file a PCR petition for the first time within the one-year
period set forth in Rule 3:22-12(a)(2)(b). The one-year clock begins on "the
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date on which the factual predicate for the relief sought was discovered, if that
factual predicate could not have been discovered earlier through the exercise of
reasonable diligence." R. 3:22-12(a)(B).
Here, the alleged factual predicate is the initial discovery that defendant
was subject to deportation proceedings as a result of his 1999 conviction.
Throughout his PCR proceedings, defendant failed to specify or document the
events that occurred between him and ICE officials in 2013 and 2015. The only
consistency is his continued acknowledgement that he was in contact with ICE
officials beginning in 2013. The record lacks any credible support for
defendant's claim he was ignorant of his eligibility for deportation during his
contacts with ICE officials in 2013. We conclude that this factual predicate was
either known, or at least discoverable in 2013 through the exercise of reasonable
diligence; defendant offers only "bald assertions" without any support to the
contrary. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). In
sum, we conclude that the trial court correctly dismissed defendant's PCR
petition as untimely filed.
Defendant's remaining contentions – including his arguments that his
ineffective assistance of counsel claim warranted an evidentiary hearing, and
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that the PCR court erred in denying his motion to withdraw his guilty plea – lack
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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