STATE OF NEW JERSEY v. ELBY RODRIGUEZ (04-11-2231, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-2155-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ELBY RODRIGUEZ, a/k/a
JESUS MATOS, and
JESUS MATOS TURBI,
Defendant-Appellant.
________________________
Submitted September 28, 2022 – Decided October 12, 2022
Before Judges Whipple and Mawla.
On appeal from the Superior Court of New Jersey,
Law Division, Bergen County, Indictment No. 04-11-
2231.
Joseph E. Krakora, Public Defender, attorney for
appellant (Phuong V. Dao, Designated Counsel, on the
brief).
Matthew J. Platkin, Acting Attorney General, attorney
for respondent (Ashlea D. Newman, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Defendant Elby Rodriguez appeals from the November 16, 2020 denial
of his petition for post-conviction relief (PCR) without an evidentiary hearing.
We affirm for the reasons expressed in the well-reasoned written decision of
Judge James X. Sattely.
Defendant raises the following arguments in support of his appeal:
POINT I:
DEFENDANT'S PCR CLAIM IS EXEMPT FROM
THE TIME BAR UNDER [RULE] 3:22-12.
POINT II:
BECAUSE DEFENDANT RECEIVED
INEFFECTIVE ASSISTANCE OF TRIAL
COUNSEL, HE WAS DENIED DUE PROCESS,
AND THEREFORE, HE IS ENTITLED TO POST-
CONVICTION RELIEF.
a. Trial counsel failed to advise defendant
of the immigration consequences. Not
raised below.
POINT III:
DEFENDANT HAS MADE A PRIMA FACIE
SHOWING OF INEFFECTIVE ASSISTANCE OF
COUNSEL, AND THUS, THE PCR COURT ERRED
IN NOT GRANTING AN EVIDENTIARY
HEARING.
A-2155-20
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On April 11, 2004, a Bergen County grand jury indicted defendant on
three counts: second-degree conspiracy to enter a structure with the purpose to
commit an offense therein, N.J.S.A. 2C:5-2; third-degree burglary, N.J.S.A.
2C:18-2 and 2C:2-6; and second-degree theft in the amount of $75,000 or more
with the intent to deprive the owner thereof, N.J.S.A. 2C:20-3 and 2C:2-6.
Defendant entered into a plea agreement on May 24, 2005, wherein he
pled guilty to second-degree conspiracy. In return, the State agreed to dismiss
the other two charges and recommend a sentence in the third-degree range of
four years, to run concurrently with a sentence arising out of Passaic County.
The plea form included "Question 17," which asked defendant if he understood
that pleading guilty may lead to his deportation. At the time, defendant —a
lawful permanent resident from the Dominican Republic—could not read or
write in English, the language of the plea form. The form was translated for
him, and defendant testified at the plea hearing that he understood it and
signed it freely and voluntarily. Defendant testified he conspired with his co-
defendants to commit a burglary and that he acted as the lookout while one of
his co-defendants climbed through the window of the residence they targeted.
The plea judge also asked defendant about his immigration status and
twice warned that he could be deported as the result of the plea which
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defendant acknowledged. The court sentenced defendant according to the
terms of the plea agreement on August 19, 2005.
Fourteen years later, in December 2019, U.S. Immigrations and Customs
Enforcement (ICE) arrested defendant and detained him. He filed a pro se
PCR petition the same month, asserting his counsel failed to advise him that
pleading guilty would result in automatic deportation and incorrectly advised
defendant that he would be eligible for parole after nine months when in fact
he would only be eligible after nineteen months.
The court assigned counsel for defendant, who filed a brief and an
amended petition raising the new assertion defendant was innocent of the
offense for which he pled guilty. Defendant asserted that he did not know that
his co-defendant was committing a burglary. He said that the co-defendant
told him that the house was his former residence, and that he was only entering
to pick up his own belongings, which he had left there. Defendant claimed he
pleaded guilty because jail was too difficult for him and trial counsel advised
defendant he had no defense and never discussed immigration consequences
with him. Defendant submitted an affirmation asserting he would not have
pleaded guilty to the second-degree conspiracy charge if his attorney had
discussed the immigration consequences with him.
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Judge Sattely heard argument in October 2020 and thereafter issued the
order and written opinion denying the petition. The court found the petition
time-barred under Rule 3:22-12 because defendant filed it fourteen years after
his conviction and presented no evidence of excusable neglect. Nonetheless,
Judge Sattely wholly addressed the issues raised in the petition and found
defendant's ineffective assistance of counsel claims were without merit
because his trial counsel's performance was not deficient under the Strickland1
standard and he presented no evidence that, but for his counsel's alleged error,
he would not have pleaded guilty. Judge Sattely also found, based on the
record of the proceedings, the plea was voluntary, knowing, and intelligent.
Because defendant did not establish a prima facie case for ineffective
assistance of counsel, the court declined to hold an evidentiary hearing. This
appeal followed.
"Post-conviction relief is New Jersey's analogue to the federal writ of
habeas corpus." State v. Pierre, 223 N.J. 560, 576 (2015) (quoting State v.
Preciose, 129 N.J. 451, 459 (1992)). PCR provides "a built-in 'safeguard that
ensures that a defendant was not unjustly convicted.'" State v. Nash, 212 N.J.
518, 540 (2013) (quoting State v. McQuaid, 147 N.J. 464, 482 (1997)). An
1
Strickland v. Washington, 466 U.S. 668 (1984).
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appellate court defers "to the PCR court's factual findings" and "uphold[s] . . .
findings that are supported by sufficient credible evidence in the record."
State v. Gideon, 244 N.J. 538, 551 (2021) (quoting Nash, 212 N.J. at 540).
However, a PCR court's interpretation of the law is reviewed de novo. Nash,
212 N.J. at 540-41.
Rule 3:22-12 requires that a first petition for PCR be filed within five
years of the entry of the judgment of conviction, unless the defendant "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) (emphasis added). 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." State v. Norman, 405
N.J. Super. 149, 159 (App. Div. 2009) (quoting State v. Afanador, 151 N.J. 41,
52 (1997)).
Defendant asserts that "petitioners are rarely barred from raising
ineffective-assistance-of-counsel claims on post-conviction review." Preciose,
129 N.J. at 459-60. However, the Preciose Court was addressing Rule 3:22-4,
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which bars defendants from bringing claims that could have been raised at trial
or on direct appeal, subject to certain exceptions. Id. at 459-60. So, while
defendant cites this as support for not enforcing the time bar in Rule 3:22-12,
his argument is misplaced. A defendant cannot circumvent the time bar in
Rule 3:22-12 simply by raising an ineffective assistance of counsel claim. See,
e.g., State v. Brewster, 429 N.J. Super. 387, 390-92 (App. Div. 2013) (finding
that petition alleging ineffective assistance of counsel was untimely filed under
R. 3:22-12).
"Excusable neglect" is "more than simply providing a plausible
explanation for a failure to file a timely PCR petition." Norman, 405 N.J.
Super. at 159. To show that fundamental injustice would occur if the petition
was time barred, the petitioner must show that the alleged error "'played a role
in the determination of guilt.'" Brewster, 429 N.J. Super. at 401 (quoting
Nash, 212 N.J. at 547).
Defendant was convicted in September 2005 but did not file his petition
for PCR until December 2019, nine years after the allotted time for filing a
PCR petition expired. The PCR judge found that defendant "offer[ed] no
justification or facts which would demonstrate excusable neglect" and thus his
petition was time barred. The issue of timeliness was not addressed in any of
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defendant's PCR petition documents. At the PCR hearing, defendant's counsel
told the court he did not receive reasons for the delay from defendant, and he
conceded there were no facts to support excusable neglect.
Defendant asserts that his counsel failed to discuss the immigration
consequences of his guilty plea with him, and that he was unaware of this error
until ICE arrested him in 2019. Therefore, he could not have filed a petition
for PCR until 2019. However, he knew that deportation was a possible result
of his guilty plea when he signed the plea form after going over it with an
interpreter, and when he acknowledged it during the plea hearing. Defendant
has known he may be deported as early as 2005 (and possibly earlier because
U.S.I.N.S.2 filed a detainer in October 2004, a month after his arrest for the
burglary).
Defendant contends that "a manifest injustice occurred because the time
bar would deny [d]efendant his constitutional right to effective assistance of
counsel." Enforcing the time bar will not result in fundamental injustice. The
alleged error did not "play[] a role in the determination of guilt." Brewster,
429 N.J. Super. at 400-01. Defendant does not raise innocence in this appeal,
despite raising it in his amended petition.
2
The United States Immigration and Naturalization Service.
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To succeed on an ineffective assistance of counsel claim, a defendant
must satisfy the two-part test under Strickland:
First, the defendant must show that counsel's
performance was deficient. This requires showing
that counsel made errors so serious that counsel was
not functioning as the "counsel" guaranteed the
defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance
prejudiced the defense. . . . Unless a defendant makes
both showings, it cannot be said that the conviction
. . . resulted from a breakdown in the adversary
process that renders the result unreliable.
[State v. Fritz, 105 N.J. 42, 52 (1987) (second
alteration in original) (quoting Strickland, 466 U.S. at
687).]
For pleas entered before 2010, New Jersey law distinguishes between
counsel's affirmatively misleading or inaccurate deportation advice and
counsel's failure to provide any deportation advice at all. In Padilla v.
Kentucky, the United States Supreme Court held counsel's failure to inform a
defendant of the immigration consequences of a guilty plea satisfies the first
prong of the Strickland analysis. 559 U.S. 356, 371 (2010). However, in State
v. Gaitan, 209 N.J. 339 (2012), the Supreme Court of New Jersey held Padilla
is not retroactive under either federal or state law. Id. at 373; see also Chaidez
v. United States, 568 U.S. 342, 347 (2013) (holding Padilla is not retroactive
under federal law). Thus, courts must analyze ineffective assistance of counsel
A-2155-20
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claims based on guilty pleas entered before Padilla was decided in 2010 using
the standard articulated in State v. Nuñez-Valdéz, 200 N.J. 129 (2009).
Gaitan, 209 N.J. at 373-74.
In Nuñez-Valdéz, our Supreme Court held it was ineffective assistance
of counsel to offer a defendant misleading or inaccurate deportation advice
regarding a guilty plea. 200 N.J. at 140-43. This decision was based on law
already established in New Jersey, holding that counsel who offered inaccurate
or misleading advice risks providing ineffective assistance of counsel. Gaitan,
209 N.J. at 351-52 (citing State v. Bellamy, 178 N.J. 127 (2003); State v.
Howard, 110 N.J. 113 (1988); State v. Chung, 210 N.J. Super. 427 (App. Div.
1986); State v. Garcia, 320 N.J. Super. 332 (App. Div. 1999)). In other words,
Nuñez-Valdéz applies retroactively. See ibid.Defendant cannot meet the first prong of the Strickland test. Because
the guilty plea that forms the basis of his ineffective assistance of counsel
claim was entered in 2005, before the U.S. Supreme Court decided Padilla, the
Nuñez-Valdéz standard applies. Thus, to meet the first prong, defendant must
show that his trial counsel affirmatively misadvised him regarding the plea's
immigration consequences. Here, he merely alleges his counsel never
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discussed the possibility that his guilty plea could result in deportation. Under
the law as it was in 2005, this is not deficient performance.
Moreover, even if defendant's trial counsel's performance was deficient,
defendant does not offer any evidence that this deficiency prejudiced him. He
provided no facts or evidence to support the claim that he would not have
pleaded guilty if further informed of the consequences and thus failed to show
a reasonable likelihood of success of his Strickland claim.
Finally, we reject defendant's claim that he was entitled to an evidentiary
hearing because he did not establish a prima facie case showing a "reasonable
likelihood that his . . . claim, viewing the facts alleged in the light most
favorable to [him], will ultimately succeed on the merits." R. 3:22-10(b).
To the extent we have not addressed defendant's remaining arguments,
we are satisfied they are without sufficient merit to warrant further discussion
in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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