STATE OF NEW JERSEY v. JUAN RIVERA (93-08-2181, ATLANTIC 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NOT FOR PUBLICATION WITHOUT THE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-4548-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JUAN RIVERA, a/k/a LUIS
CEPIN,
Defendant-Appellant.
________________________
Submitted December 15, 2021 – Decided January 6, 2022
Before Judges Gooden Brown and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 93-08-2181.
Joseph E. Krakora, Public Defender, attorney for
appellant (John J. Bannan, Designated Counsel, on the
brief).
Cary Shill, Acting Atlantic County Prosecutor, attorney
for respondent (Debra B. Albuquerque, Special Deputy
Attorney General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant, who is not a United States citizen, pled guilty to a criminal
offense in 1993 and now appeals from the January 30, 2020 Law Division order
denying his first petition for post-conviction relief (PCR) without an evidentiary
hearing. On appeal, defendant raises the following points for our consideration:
POINT I
BECAUSE [DEFENDANT] RECEIVED
INEFFECTIVE ASSISTANCE OF COUNSEL, THE
PCR COURT ERRED IN DENYING
[DEFENDANT'S] PETITION FOR PCR.
(A) Legal Standards Governing
Applications For [PCR].
(B) Defense Counsel Was Ineffective, For
Among Other Reasons, Failing To Request
An Interpreter And Failing To Advise
[Defendant] That Pleading Guilty May
Result In Denial Of His Application For
United States Citizenship.
POINT II
BECAUSE DEFENDANT DID NOT MAKE A
KNOWING, INTELLIGENT, AND VOLUNTARY
PLEA, THE PCR COURT ERRED IN DENYING
DEFENDANT'S PETITION FOR PCR.
(A) Legal Standards Governing
Applications For [PCR].
(B) Defendant Did Not Make A Knowing,
Intelligent, And Voluntary Guilty Plea.
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POINT III
IN THE ALTERNATIVE, BECAUSE THERE ARE
GENUINE ISSUES OF MATERIAL FACT IN
DISPUTE, THE PCR COURT ERRED IN DENYING
AN EVIDENTIARY HEARING.
(A) Legal Standards Governing [PCR]
Evidentiary Hearings.
(B) In The Alternative, [Defendant] Is
Entitled To An Evidentiary Hearing.
We affirm.
We glean these facts from the record. On August 31, 1993, defendant was
charged in an Atlantic County indictment with third-degree possession of a
controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one);
and third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-
5(a)(1) and 2C:35-5(b)(3) (count two). The charges stemmed from the execution
of a search warrant at an apartment where police seized four glassine bags of
heroin and an electronic calculator. Police also seized $1,052 in cash from
defendant's wallet. Defendant was the only person present in the apartment at
the time of the search.
On October 4, 1993, defendant entered a negotiated guilty plea to count
two. Question seventeen of the plea form defendant signed at the plea hearing
asked, "Do you understand that if you are not a United States citizen or national,
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you may be deported by virtue of your plea of guilty?" In response, defendant
circled "N/A" or not applicable. Because of the age of the case, a transcript of
the plea hearing to ascertain the exact colloquy that ensued regarding question
seventeen is not available. However, at the time, defendant was a national of
the Dominican Republic and had obtained conditional permanent residency
status as the spouse of a United States citizen. On June 4, 1994, the conditions
were removed, and defendant became a lawful permanent resident of the United
States.
For reasons undisclosed in the record, the judgment of conviction was not
entered until April 28, 1995,1 when defendant was sentenced in accordance with
the plea agreement to three years' probation, conditioned upon serving forty-five
days in the county jail. The sentence was to run concurrent with a sentence
imposed in connection with a Bergen County indictment which was also not
provided in the record.
Defendant did not file a direct appeal challenging any aspect of his
conviction or sentence. Over twenty years later, on November 23, 2015,
defendant applied to become a naturalized citizen of the United States. On May
1
On April 25, 1995, an immigration judge allowed defendant to retain his
permanent residency status despite the October 4, 1993 guilty plea.
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31, 2016, his application was denied because his October 4, 1993 guilty plea to
what was considered "an aggravated felony" under immigration law, 2
"permanently barred [him] from establishing good moral character." Following
a hearing, on December 27, 2016, United States Citizenship and Immigration
Services (USCIS) reaffirmed its initial decision denying defendant's
naturalization application.
On May 10, 2019, defendant filed a petition for PCR through a New York
attorney,3 asserting he was denied effective assistance of counsel. Defendant
contended plea counsel "failed to properly advise him as to the immigration
consequences of his guilty plea," and as a result, defendant "is now permanently
barred from becoming a United States citizen." Defendant sought to vacate his
felony conviction, reduce the "charge and conviction . . . to a misdemeanor," or
receive an evidentiary hearing. After obtaining New Jersey PCR counsel, on
October 16, 2019, defendant submitted a certification averring "[he] did not
know that [he] had a conviction . . . [for] an [a]ggravated [f]elony" until his
citizenship application was denied by "the USCIS in 2016." Defendant further
2
See 8 U.S.C. § 1227(a)(2)(A)(iii).
3
Because there is no indication in the record that the attorney was admitted pro
hac vice, we consider the PCR petition as if it were filed pro se.
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certified "[he] did not speak English during [his October 4, 1993] guilty
plea . . . and no interpreter was provided." He also asserted "[he] would not
have entered a plea if [he] had been aware that [he] was actually entering a plea
especially to an [a]ggravated [f]elony."
On January 30, 2020, following oral argument, the PCR judge denied
defendant's petition without conducting an evidentiary hearing. In an oral
opinion, the judge summarized defendant's arguments as follows:
[D]efendant essentially is claiming that his learning of
his conviction is newly discovered evidence. He also
asserts that his plea was involuntary. He argues that his
1993 plea counsel was deficient in failing to tell
defendant that . . . as a conditional permanent resident
at the time, [defendant] would be permanently
prevented from showing he has good moral character in
naturalization proceedings. [4]
In rejecting defendant's arguments, the judge determined defendant's
petition was time barred and defendant failed to "submit competent evidence to
4
The judge noted defendant "had two different lawyers in th[e] case," one
attorney who represented him at the plea hearing and another attorney who
represented him at sentencing. The judge expounded on her familiarity with the
attorneys, both of whom appeared before her "several times." The judge
described plea counsel, who had since "retired from the Public Defender's
Office," as "a knowledgeable" attorney "of Asian de[s]cent" with "a sensitivity
to certain issues with respect to persons who do not understand the English
language." The judge described sentencing counsel as an attorney who paid
"great attention to detail."
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satisfy the standards for relaxing" the requirements in Rule 3:22-12(a). The
judge found "[t]he five[-]year filing deadline" in Rule 3:22-12(a)(1) "ran in
2000" and defendant failed to establish "excusable neglect" for the filing delay.
The judge also rejected defendant's reliance on "what he call[ed], newly
discovered evidence" to justify a "one[-]year" extension contemplated under
Rule 3:22-12(a)(2)(B) for instances when "the factual predicate for the relief
sought . . . could not have been discovered earlier through the exercise of
reasonable diligence." The judge found it incredulous that defendant "did not
know about his drug conviction until 2016" and added that even "assuming
defendant [only] learned about his conviction and its consequences in 2016,
defendant failed to file his petition within the additional one[-]year [time] bar."
Instead, the petition was filed "two years beyond" defendant's purported
discovery date. The judge determined an evidentiary hearing was not warranted
and entered a memorializing order. This appeal followed.
On appeal, defendant argues "his defense attorney provided ineffective
assistance of counsel" by "failing to obtain an interpreter for [him] during the
guilty plea proceedings, failing to inform [him] that he was pleading guilty
especially to an aggravated felony, and failing to inform [him] that his guilty
plea would bar him from obtaining United States citizenship." Defendant asserts
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"it is apparent" from his "certification . . . in support of his petition" that due to
his attorney's deficient performance, his "plea was not knowing, intelligent, and
voluntary." Defendant also maintains "[t]he PCR court incorrectly decided that
the five-year bar under [Rule] 3:22-12(a)(1) . . . should not be relaxed in th[e]
case." Defendant contends he "has met his burden" to obtain PCR or
"[a]lternatively, . . . an evidentiary hearing." We disagree.
Rule 3:22-12(a)(1) sets a five-year time limitation for
the filing of a PCR petition, unless the petition itself
shows excusable neglect for the late filing and
fundamental injustice if defendant's claims are not
considered on their merits. By its subsection (a)(2),
Rule 3:22-12 allows an additional one-year limitation
period if the courts recognize a new constitutional right
or defendant discovers a previously unknown factual
predicate justifying relief from the conviction.
[State v. Brewster, 429 N.J. Super. 387, 398 (App. Div.
2013).]
In State v. McQuaid, 147 N.J. 464, 485 (1997), our Supreme Court
"emphasized the important policy underlying the requirement that PCR petitions
be timely filed" as follows:
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
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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.
[Ibid. (alterations in original) (quoting State v.
Mitchell, 126 N.J. 565, 575-76 (1992)).]
Although "a court may relax the time bar if the defendant alleges facts
demonstrating that the delay was due to the defendant's excusable neglect or if
the 'interests of justice demand it,'" State v. Goodwin, 173 N.J. 583, 594 (2002)
(quoting Mitchell, 126 N.J. at 576), "a court should only relax the bar of Rule
3:22-12 under exceptional circumstances," State v. Afanador, 151 N.J. 41, 52
(1997). In that regard, a "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.'" Goodwin, 173 N.J. at 594 (quoting Afanador, 151 N.J. at 52). "Absent
compelling, extenuating circumstances, the burden to justify filing a petition
after the five-year period will increase with the extent of the delay" because
"[a]s time passes, justice becomes more elusive and the necessity for preserving
finality and certainty of judgments increases." Afanador, 151 N.J. at 52.
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"Mindful of these policy considerations," in State v. Brown, 455 N.J.
Super. 460, 470 (App. Div. 2018), we held:
[W]hen a first PCR petition shows it was filed more
than five years after the date of entry of the judgment
of conviction, . . . 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.
[Ibid.]
"[W]e review under the abuse of discretion standard the PCR court's
determination to proceed without an evidentiary hearing." Brewster, 429 N.J.
Super. at 401. "If the court perceives that holding an evidentiary hearing will
not aid the court's analysis of whether the defendant is entitled to post -
conviction relief, . . . then an evidentiary hearing need not be granted." State v.
Marshall, 148 N.J. 89, 158 (1997).
Here, the PCR judge correctly denied defendant's PCR petition as
untimely, and we discern no abuse of discretion in denying the petition without
an evidentiary hearing. Defendant's petition was filed in 2019, nineteen years
after the five-year filing deadline contained in Rule 3:22-12(a)(1) had passed.
The judge found defendant failed to show by competent evidence that the delay
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was due to excusable neglect. On this record, we are satisfied defendant also
failed to establish there was a reasonable probability that if his factual assertion
that he was unaware of his 1995 felony conviction were true, enforcement of the
time bar would result in a fundamental injustice. See State v. Milne, 178 N.J.
486, 492-93, 495 (2004) (finding "no compelling reason to relax the procedural
bar of Rule 3:22-12" where the defendant had "opportunities to assert his claims
in a timely fashion but failed to do so," "the State would be significantly
prejudiced if now forced to relitigate issues pertaining to crimes and a trial that
occurred nearly two decades ago," and the judiciary would be faced "with the
prospect of evaluating the propriety of a sixteen-year-old criminal conviction").
Further, even if defendant was unaware of the conviction and its
immigration consequences until 2016 as he claimed, he failed to "file his petition
within one year . . . of his learning the 'factual predicate' that the conviction
would have adverse immigration . . . consequences." Brewster, 429 N.J. Super.
at 399. "If excusable neglect for late filing of a petition is equated with incorrect
or incomplete advice, long-convicted defendants might routinely claim they did
not learn about the deficiencies in counsel's advice on a variety of topics until
after the five-year limitation period had run." Id. at 400.
Affirmed.
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