STATE OF NEW JERSEY v. SHANE PRYCE (08-10-0913, MERCER 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NOT FOR PUBLICATION WITHOUT THE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-2186-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHANE PRYCE,
Defendant-Appellant.
Submitted May 24, 2022 – Decided June 27, 2022
Before Judges Currier and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Indictment No. 08-10-0913.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the brief).
Angelo J. Onofri, Mercer County Prosecutor, attorney
for respondent (Elizabeth M. Newton, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant, a Jamaican citizen, appeals from the September 4, 2020 order
denying his petition for post-conviction relief (PCR) without an evidentiary
hearing. Defendant argues the PCR court erred in denying him a hearing
because his plea counsel did not give him proper advice regarding the
immigration consequences of a guilty plea. We affirm.
After a search of defendant's home disclosed a large amount of marijuana,
which defendant conceded was his, he was charged in a 2008 indictment with:
(1) fourth-degree possession of a controlled dangerous substance, N.J.S.A.
2C:35-10(a)(3); (2) third-degree possession of a controlled dangerous substance
with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(11); and (3)
third-degree possession of a controlled dangerous substance with intent to
distribute on or near school property, N.J.S.A. 2C:35-7, 2C:35-5(a)(1), and
2C:35-5(b)(11).
During the May 29, 2009 plea hearing, defendant signed and initialed plea
forms. Question seventeen 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?" Defendant circled "YES" when executing the plea form. At the time,
defendant was a legal permanent resident.
A-2186-20
2
Through counsel, defendant requested an adjournment of the hearing to
seek advice on how a guilty plea might affect his immigration status. In granting
the adjournment, the judge stated, "[Defendant] has made this request to run the
effect of his plea past an immigration attorney." She later explained to
defendant, "I'm giving you between now and June 23 to look into this
immigration issue."
The parties reconvened on July 8, 2009. The court referenced the plea
forms previously completed at the initial plea hearing and defendant executed a
supplemental plea form for drug offenses. The judge also noted the prior hearing
was adjourned for defendant to consult with an immigration attorney. In
response, defense counsel stated, "That's correct, Judge. We're ready to proceed
today."
The court inquired whether defendant had reviewed all of the questions
on the plea form with his attorney, and whether he understood the questions.
Defendant replied affirmatively and stated he was not coerced into signing the
forms.
Defendant subsequently pleaded guilty to one count of third-degree
possession of a controlled dangerous substance with intent to distribute on or
near school property, N.J.S.A. 2C:35-7, 2C:35-5(a)(1), and 2C:35-5(b)(11). The
A-2186-20
3
State recommended a flat, three-year prison term. On March 3, 2010, the court
sentenced defendant to a three-year probationary term. Defendant successfully
completed his probationary term in March 2013.
Defendant traveled to Jamaica in December 2008. Upon his return to the
United States, he was detained by Immigration and Customs Enforcement (ICE)
and his passport was seized. Nine years later, in June 2017, defendant was
arrested by ICE and detained for almost two years.
Defendant filed a pro se PCR petition on August 24, 2018. Assigned
counsel filed a supplemental brief. Defendant alleged he was not informed of
the effect his guilty plea would have on his immigration status. He asserted if
he knew he could be deported, he would not have pleaded guilty. PCR counsel
also included a letter from defendant's plea counsel. It stated:
I am unable to locate [defendant's] file . . . . I have no
personal recollection of what I may have told
[defendant] regarding potential immigration
consequences. I can only tell you that typically, if
immigration issues were involved, I would advise the
client to seek immigration counsel, as I do not practice
immigration law and would not feel comfortable giving
any such advice.
In considering the timeliness of defendant's petition, the court found it
was filed more than eight years after his conviction. Therefore, it was untimely
A-2186-20
4
under Rule 3:22-12. In addition, defendant waited an additional year to file his
petition even after he was arrested by ICE.
The judge found defendant had not shown excusable neglect to permit a
late filing because he was aware of the potential immigration consequences
when he pleaded guilty in 2009 and "unfamiliarity with his post-conviction
status does not establish excusable neglect." The judge further concluded the
State would be prejudiced by the late filing because it would have to prosecute
an eight-year-old case.
Despite its conclusion that the petition was untimely, the court
nevertheless considered its merits. After reviewing the pertinent case law, the
court stated:
[T]he record establishes that when he pled, [defendant]
understood the implications of the guilty plea on his
immigration status . . . . [Defendant] initialed and
signed the plea form and acknowledged an
understanding that since he was not a United States
citizen or national, he may be deported. He inquired as
to his immigration status before he entered the guilty
plea and the court granted an adjournment for him to
speak to an immigration attorney. Thus, [defendant]
has not established that counsel's performance fell
outside the wide range of professionally competent
assistance, and he has not adequately established
prejudice. Further, the record supplies ample doubt that
petitioner would not have pled guilty but for counsel's
alleged errors.
A-2186-20
5
Because defendant did not present a prima facie case, the court denied his
request for an evidentiary hearing.
On appeal, defendant raises the following issues for our consideration:
POINT I
THE PCR COURT ERRED IN DENYING
[DEFENDANT'S] PETITION FOR POST-
CONVICTION RELIEF WITHOUT GRANTING AN
EVIDENTIARY HEARING AS TESTIMONY IS
NEEDED FROM PRIOR COUNSEL REGARDING
THE SUBSTANCE OF HIS ADVICE AS TO THE
IMMIGRATION CONSEQUENCES OF ACCEPTING
THE GUILTY PLEA.
POINT II
THE PCR COURT ERRED IN DENYING
[DEFENDANT'S] PETITION FOR POST-
CONVICTION RELIEF WITHOUT GRANTING AN
EVIDENTIARY HEARING AS THE FIVE-YEAR
TIME BAR SHOULD BE RELAXED DUE TO
EXCUSABLE NEGLECT AND/OR THE INTERESTS
OF JUSTICE.
POINT III
THE PCR COURT ERRED IN DENYING
[DEFENDANT'S] PETITION FOR POST-
CONVICTION RELIEF WITHOUT GRANTING AN
EVIDENTIARY HEARING AS TESTIMONY IS
NEEDED FROM PRIOR COUNSEL REGARDING
WHY HE ALLOWED HIS CLIENT TO PROCEED
WITH HIS GUIL[T]Y PLEA WHEN [DEFENDANT]
WAS NOT AWARE OF THE IMMIGRATION
CONSEQUENCES.
A-2186-20
6
The standard for determining whether trial counsel's performance was
ineffective for purposes of the Sixth Amendment was formulated in Strickland
v. Washington, 466 U.S. 668, 687 (1984), and adopted by the New Jersey
Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
In order to prevail on a claim of ineffective assistance of counsel,
defendant must meet the two-prong test establishing both that: (1) counsel's
performance was deficient and they made errors that were so egregious that
counsel was not functioning effectively as guaranteed by the Sixth Amendment
to the United States Constitution; and (2) the defect in performance prejudiced
defendant's rights to a fair trial such that there exists a "reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would
have been different." Strickland, 466 U.S. at 687, 694.
A first petition for PCR must be filed within five years of the date of the
judgment of conviction. R. 3:22-12(a)(1). A late filing may be considered if
the petition itself shows excusable neglect for the late filing and that a
fundamental injustice will result if defendant's claims are not considered on their
merits. R. 3:22-12(a)(1)(A). In addition, Rule 3:22-12(a)(2)(B) allows for a
second or subsequent petition to be filed within one year of the "date on which
the factual predicate for the relief sought was discovered, if that factual predicate
A-2186-20
7
could not have been discovered earlier through the exercise of reasonable
diligence . . . ."
To establish "excusable neglect," a defendant must demonstrate "more
than simply . . . a plausible explanation for a failure to file a timely PCR
petition." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). Factors
to be considered include "the extent and cause of the delay, the prejudice to the
State, and the importance of the [defendant's] claim in determining whether
there has been an 'injustice' sufficient to relax the time limits." Ibid. (quoting
State v. Afanador, 151 N.J. 41, 52 (1997)).
"Absent compelling, extenuating circumstances, the burden to justify
filing a petition after the five-year period will increase with the extent of the
delay." Afanador, 151 N.J. at 52 (citing State v. Mitchell, 126 N.J. 565, 580
(1992)). "Where the deficient representation of counsel affected 'a
determination of guilt or otherwise wrought a miscarriage of justice,' a
procedural rule otherwise barring post-conviction relief may be overlooked to
avoid a fundamental injustice." State v. Brewster, 429 N.J. Super. 387, 400
(App. Div. 2013) (citation omitted).
Defendant's petition was filed eight years after the entry of the judgment
of conviction. During the first scheduled plea hearing, defendant discussed with
A-2186-20
8
counsel and signed a plea form in which he acknowledged understanding he
could be deported as a result of his guilty plea. He also requested and was
granted an adjournment of the hearing to consult with immigration counsel.
Six weeks later, when the parties convened for the plea hearing, defendant
confirmed he had read and understood the plea forms and discussed the
questions with counsel. After the court noted the first hearing was adjourned to
permit defendant to seek immigration advice, his attorney stated, "We're ready
to proceed today."
Moreover, during this same time frame, defendant traveled to Jamaica and
was detained by ICE after his return to the United States. His passport was
taken. Despite those events, defendant did not seek any further guidance for
more than eight years and then only after ICE arrested him. Defendant then
waited an additional year to file his PCR petition. We are satisfied defendant
has not demonstrated excusable neglect to overcome the time bar under Rule
3:22-12.
Defendant has also failed to establish a prima facie case of ineffective
assistance of counsel. At the time of defendant's plea and sentence, he was
subject to the Nunez-Valdez standard—allowing a defendant to establish the
ineffective assistance of counsel by proving his guilty plea resulted from
A-2186-20
9
"inaccurate information from counsel concerning the deportation consequences
of his plea." 200 N.J. 129, 143 (2009).
Defendant read and signed the plea forms in 2009 with counsel. He
acknowledged that he could be deported by virtue of his guilty plea. He also
sought time to consult with an immigration attorney. Defendant cannot
demonstrate he was given false or affirmatively misleading advice about the
deportation consequences of his guilty plea. See id. at 141-42.
Defendant has also not shown he suffered prejudice from his counsel's
representation. Although the State recommended a three-year prison term with
no parole ineligibility period, defense counsel convinced the court to impose a
non-custodial probationary sentence instead.
Defendant has not demonstrated a reasonable likelihood that his claim will
succeed on the merits. As he failed to establish a prima facie case of
ineffectiveness of counsel, we discern no error in the denial of an evidentiary
hearing.
Affirmed.
A-2186-20
10