STATE OF NEW JERSEY v. MANSFIELD CREIGHTON (93-09-3218, 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NOT FOR PUBLICATION WITHOUT THE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-3064-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MANSFIELD CREIGHTON,
Defendant-Appellant.
________________________
Submitted September 12, 2022 – Decided September 15, 2022
Before Judges Mayer and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 93-09-3218.
Joseph E. Krakora, Public Defender, attorney for
appellant (Abby P. Schwartz, Designated Counsel, on
the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Hannah F. Kurt,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from the February 4, 2021 order denying his petition
for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
In 1983, defendant pled guilty to possession with intent to distribute a
controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1), and was sentenced to a
term of probation. Following a jury trial in May 1994, he was convicted of an
amended charge of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1),
third-degree criminal restraint, N.J.S.A. 2C:13-2, and third-degree possession of
a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). On June 16, 1994,
defendant was sentenced to an aggregate five-year term for these offenses.
In December 2019, more than twenty-five years after the 1994 judgment
of conviction was entered, defendant filed his first petition for PCR. He asserted
trial counsel from his 1994 jury trial was ineffective because his attorney "did
not advi[se him] about the consequences [of his] immigration status." PCR
counsel filed a supplemental brief, arguing trial counsel: misled defendant about
the immigration consequences defendant faced if convicted; and failed to inform
defendant about the penal consequences of a plea offer from the State. Further,
PCR counsel contended defendant was entitled to an evidentiary hearing to
address defendant's ineffective assistance of counsel (IAC) claims.
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Judge James L. Jukes heard argument on defendant's petition in January
2021. At that hearing, the State noted defendant did not plead guilty to the
charges he faced in 1994, but instead went to trial, despite defendant's
representation to the contrary. PCR counsel acknowledged defendant had no
"documentation that . . . dated all the way back then . . . . [I]t's just basically his
sworn testimony to me and to the court that . . . he was misinformed of the . . .
plea." On February 4, 2021, Judge Jukes denied defendant's petition as time
barred. Citing Rule 3:22-12(a)(1), he found defendant "has not presented any
evidence to show excusable neglect nor any arguments to justify the delay."
Defendant presents the following arguments on appeal:
POINT I
PETITIONER WAS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL IN VIOLATION OF
PETITIONER'S RIGHT TO DUE PROCESS AND A
FAIR TRIAL AND THE PETITION FOR POST-
CONVICTION RELIEF SHOULD NOT BE BARRED
FROM REVIEW BECAUSE OF PROCEDURAL
ISSUES.
A. INTRODUCTION.
B. THE FAILURE TO ADVISE
DEFENDANT OF THE IMMIGRATION
CONSEQUENCES OF HIS ACTIONS.
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C. THIS PETITION FOR POST-
CONVICTION RELIEF SHOULD NOT BE TIME-
BARRED.
Having considered these arguments, we affirm, essentially for the reasons
thoughtfully expressed by Judge Jukes in his cogent written opinion. We add
only the following.
"[W]here the [PCR] court does not hold an evidentiary hearing, we 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) (citing State v. Harris, 181 N.J. 391, 402-21 (2004)). We
review a PCR court's legal conclusions de novo. State v. Nash, 212 N.J. 518,
540-41 (2013) (citing Harris, 181 N.J. at 415-16). Further, we review a trial
court's decision to deny a defendant's request for an evidentiary hearing under
an abuse of discretion standard. State v. Russo, 333 N.J. Super. 119, 137 (App.
Div. 2000) (citing State v. Artis, 36 N.J. 538, 541 (1962)).
When petitioning for PCR, a defendant must establish he is entitled to
"PCR by a preponderance of the evidence." O'Donnell, 435 N.J. Super. at 370
(citing State v. Preciose, 129 N.J. 451, 459 (1992)). A defendant is not
automatically entitled to an evidentiary hearing by simply raising a PCR claim.
State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). An evidentiary
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hearing is required only when: a defendant establishes a prima facie case in
support of PCR; the court determines there are disputed issues of material fact
that cannot be resolved by review of the existing record; and the court finds an
evidentiary hearing is required to resolve the claims asserted. State v. Porter,
216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)). To establish a prima facie case
of IAC, a defendant must present legally competent evidence rather than mere
"bald assertions." Cummings, 321 N.J. Super. at 170.
Pursuant to Rule 3:22-12(a)(1), a first petition for PCR must be filed
within five years of the entry date of the challenged judgment of conviction. A
defendant seeking relief from the time bar under Rule 3:22-12(a)(1) must show
excusable neglect and that a fundamental injustice will result from enforcement
of the time bar. R. 3:22-12(a)(1)(A). "Ignorance of the law and rules of court
does not qualify as excusable neglect." State v. Merola, 365 N.J. Super. 203,
218 (Law Div. 2002), aff'd o.b., 365 N.J. Super. 82 (App. Div. 2003) (citing
State v. Murray, 162 N.J. 240, 246 (2000)). Additionally, a late petition may be
considered if filed within one year from the date of discovery of the factual
predicate on which relief is sought "if that factual predicate could not have been
discovered earlier through the exercise of reasonable diligence." R. 3:22-
12(a)(1)(B).
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"[A] court should relax Rule 3:22-12's bar only under exceptional
circumstances. The 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.
Mitchell, 126 N.J. 565, 580 (1992). A procedural rule otherwise barring post-
conviction relief may be overlooked to avoid a fundamental injustice where the
deficient representation of counsel affected "a determination of guilt or
otherwise wrought a miscarriage of justice." Nash, 212 N.J. at 546 (quoting
Mitchell, 126 N.J. at 587 (internal quotations omitted)). "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. Afanador, 151
N.J. 41, 52 (1997) (citing Mitchell, 126 N.J. at 580).
Here, we are convinced defendant failed to satisfy his burden of
establishing excusable neglect. Thus, we need not decide if enforcement of
the time bar will result in a fundamental injustice. See State v. Brewster, 429
N.J. Super. 387, 399-401 (App. Div. 2013) (finding a seven-year delay beyond
the five-year deadline, coupled with a three-year delay after defendant knew the
consequences of his plea agreement "undercut[] a finding of excusable neglect
and fundamental injustice.") (citations omitted). In reaching this result, we note
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defendant freely admits, "[i]t was not until around 2000 that [he] was even aware
of the changes to the immigration laws that made him immediately deportable."
Yet his petition is devoid of any reasonable explanation justifying his failure to
file for PCR until nineteen years after he made this discovery. Also, because
defendant did not file his PCR petition within one year of finding out the factual
predicate for his PCR petition, i.e., he was "immediately deportable," he is not
entitled to relief under Rule 3:22-12(a)(1)(B).
Finally, even if defendant's PCR petition was not time barred, we would
not conclude his trial counsel was ineffective. To establish an IAC claim, a
defendant must satisfy the two-part test under Strickland v. Washington, 466
U.S. 668, 687 (1984), and show: (1) "counsel made errors so serious that
counsel was not functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment[,]" and (2) "the deficient performance prejudiced the
defense." Accord State v. Fritz, 105 N.J. 42, 57-58 (1987).
A defendant satisfies the first Strickland prong by showing counsel's
representation fell short of the prevailing norms of the legal community. Padilla
v. Kentucky, 559 U.S. 356, 366-67 (2010). The second component of Strickland
is met by establishing "a reasonable probability that, but for counsel's
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unprofessional errors, the result of the proceeding would have been different. "
Strickland, 466 U.S. at 694.
A strong presumption exists that counsel rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional
judgment. Id. at 689. And because prejudice is not presumed, "defendant must
demonstrate 'how specific errors by counsel undermined the reliability' of the
proceeding." State v. Drisco, 355 N.J. Super. 283, 289-90 (App. Div. 2002)
(quoting United States v. Cronic, 466 U.S. 648, 659 n.26 (1984)).
When defendant was tried in 1994, applicable professional norms did not
require attorneys representing non-citizen criminal defendants to give
immigration advice, but if they did, they could not give "wrong advice, followed
by inaccurate and misleading information" about the possibility of deportation.
State v. Gaitan, 209 N.J. 339, 373 (2012) (citing State v. Nuñez-Valdéz, 200
N.J. 129, 143 (2009)). Only in 2010 did the United States Supreme Court newly
hold "correct" advice must be given about the possibility of deportation when
the risk of deportation was "truly clear." Padilla, 559 U.S. at 369. It was later
determined Padilla's new rule had prospective effect only, thereby depriving
non-citizen defendants — like defendant here — of Padilla's holding if their
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"convictions became final prior to Padilla." Chaidez v. United States, 568 U.S.
342, 358 (2013).
Thus, because defendant's convictions became final well before the
decision in Padilla, and his petition is devoid of proof his trial counsel gave false
or affirmatively misleading advice about defendant's risk of deportation if he
was found guilty of, or pled guilty to, the charges he faced in 1994, defendant
failed to satisfy prong one of the Strickland test. Defendant also failed to show
any nexus between trial counsel's alleged errors and harm to the reliability of
the 1994 trial. Accordingly, we are convinced the PCR judge correctly found
the PCR petition was time barred and defendant was not entitled to an
evidentiary hearing on his IAC claims.
Affirmed.
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