STATE OF NEW JERSEY VS. VICTOR PUELLO (08-01-0057, 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NOT FOR PUBLICATION WITHOUT THE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-3577-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VICTOR PUELLO,

Defendant-Appellant.
___________________________

Submitted August 21, 2018 – Decided September 5, 2018

Before Judges Sumners and Gilson.

On appeal from Superior Court of New Jersey,
Law Division, Union County, Accusation No. 08-
01-0057.

Vincent J. Sanzone, Jr., attorney for
appellant.

Michael A. Monahan, Acting Union County
Prosecutor, attorney for respondent (Izabella
M. Wozniak, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel and
on the brief).

PER CURIAM

Defendant Victor Puello appeals from a March 31, 2017 order

denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm because defendant's petition was

time-barred under Rule 3:22-12(a)(1) and otherwise lacked merit.

I.

In November 2007, defendant was arrested and charged with

second-degree possession of cocaine with intent to distribute

within 500 feet of public housing, N.J.S.A. 2C:35-7.1a, and several

other illegal drug offenses. Defendant was also charged with

related motor vehicle violations.

In January 2008, defendant pled guilty to third-degree

possession of cocaine with intent to distribute, N.J.S.A. 2C:35-

5(b)(3). On his plea form, "N/A" was circled in response to

question seventeen, which asked if defendant understood that if

he was not a United States citizen, he could be deported by virtue

of his guilty plea. During his plea colloquy, however, the judge

asked defendant whether he was a United States citizen, defendant

responded that he was not, and the judge informed defendant that

because he was not a United States citizen his guilty plea could

affect whether defendant could stay in the United States.

Specifically, the following exchange took place between the judge

and defendant:

THE COURT: And are you a citizen of the United
States?

DEFENDANT: No.

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 THE COURT: Do you understand that by pleading
guilty to a charge while you are a non-citizen
that it could have some effect on your
continued residence in this country?

DEFENDANT: Yes.

THE COURT: And you're still willing to go
ahead with these charges and this plea?

DEFENDANT: Yes.

The judge then asked defendant whether he had enough time to

speak with his lawyer, whether his lawyer had answered any

questions he had, and whether he was satisfied with his lawyer's

advice and services. Defendant responded "yes" to each question.

The specific exchange was as follows:

THE COURT: And have you had enough time to
speak with your lawyer?

DEFENDANT: Yes.

THE COURT: She has explained the plea,
advised you of your rights, and answered any
questions you might have had to your
satisfaction?

DEFENDANT: Yes.

THE COURT: And are you satisfied with the
advice and services she is providing on your
behalf?

DEFENDANT: Yes.

After defendant admitted he possessed ten bags of cocaine

with the intent to distribute, and after defendant explained that

he understood what he was doing in pleading guilty and was doing

3 A-3577-16T1
so knowingly, intelligently, and voluntarily, the judge accepted

his guilty plea.

In April 2008, defendant was sentenced. In accordance with

his plea agreement, defendant was sentenced to three years of

probation with the condition that he spend 120 days in jail.

Defendant was also required to forfeit $50,420 that had been seized

from him when he was arrested. Defendant did not file a direct

appeal.

In 2016, defendant was arrested by federal Immigration and

Customs Enforcement agents, and proceedings to remove him from the

United States were commenced. Shortly thereafter, on May 27,

2016, defendant, who was represented by a lawyer, filed a petition

for PCR. In his petition, defendant claimed his plea counsel had

been ineffective because counsel had "affirmatively told"

defendant that his "plea would not result in [his] deportation."1

Defendant also asserted that although the judge taking his guilty

plea had raised his immigration status, his plea was not knowing

and voluntary because the court had failed to adequately explain

the immigration consequences of his guilty plea. Defendant then

contended that had he been aware of the immigration consequences

1
Defendant's claims were set forth in his brief. Defendant then
certified that he had read his counsel's brief and the facts in
the brief were "true and accurate[.]"

4 A-3577-16T1
of his guilty plea, he "would have likely engaged an immigration

lawyer to assist" him and "he would have been unlikely to accept

a plea that included deportation as a consequence."

The PCR court heard oral arguments on March 16, 2017. On

March 31, 2017, the court entered an order denying defendant's PCR

petition, and explained the reasons for its rulings in an opinion

read into the record. The PCR court found that, before pleading

guilty, the judge taking the plea had informed defendant of the

immigration consequences of his plea. Thus, the PCR court reasoned

that any inaccurate advice by plea counsel had been corrected by

the judge and that before defendant plead guilty, he understood

the potential immigration consequences of his guilty plea. The

PCR court also found that defendant's guilty plea was made

knowingly, voluntarily, and intelligently, and there was no basis

to allow defendant to withdraw his plea.

II.

On this appeal, defendant makes one argument contending that

the PCR court erred when it denied his petition because he was

never advised of the immigration consequences of his plea by his

plea counsel. Specifically, defendant articulates his argument

as follows:

The Trial Court Committed Reversible Error by
Holding that the Court Cured the Error Made
by Plea Counsel By Not Advising the Defendant

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 that He Would be Deported by Virtue of His
Plea.

We reject defendant's argument because his petition is time-barred

and because, even if the petition was considered on its merits,

he has failed to show any prejudice.

Rule 3:22-12(a)(1) precludes PCR petitions filed more than

five years after entry of a judgment of conviction unless the

delay was "due to defendant's excusable neglect and . . . there

is 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." Our Supreme Court has

stated that "[t]he time bar should be relaxed only 'under

exceptional circumstances' because '[as] time passes, justice

becomes more elusive and the necessity for preserving finality and

certainty of judgment increases.'" State v. Goodwin, 173 N.J.

583, 594 (2002) (quoting State v. Afanador, 151 N.J. 41, 52

(1997)). Moreover, we have recently held that when a first PCR

petition is filed more than five years after the date of entry of

the judgment of conviction, the PCR court should examine the

timeliness of the petition and defendant must submit competent

evidence to satisfy the standards for relaxing the rule's time

restrictions. State v. Brown, ___ N.J. Super. ___, ___ (App. Div.

2018) (slip op. at 13-14).

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 The PCR court here did not address the timeliness of

defendant's petition. We, however, can affirm the denial of the

petition on this alternative ground because the issue was briefed

by the parties and the facts are not in dispute. See State v.

Williams, 444 N.J. Super. 603, 617 (App. Div. 2016) ("It is well-

established that a reviewing court can affirm a decision on

different grounds than those authorities offered by the court

being reviewed."); see also R. 2:10-5; AAA Mid-Atlantic Ins. of

N.J. v. Prudential Prop. & Cas. Ins. Co., 336 N.J. Super. 71, 78

(App. Div. 2000).

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." Afanador, 151 N.J. at 52 (citation omitted).

Here, defendant was sentenced on April 11, 2008. His petition

for PCR, however, was filed eight years later on May 27, 2016.

Defendant argues that there was excusable neglect for the late

filing because he did not learn of his counsel's mis-advice until

he was detained by immigration authorities in 2016. Ignorance of

7 A-3577-16T1
the law, however, does not establish excusable neglect. See State

v. Brewster, 429 N.J. Super. 387, 400-01 (App. Div. 2013) (stating

that defendant's twelve-year delay in filing a petition for PCR

regarding deportation consequences showed neither excusable

neglect nor fundamental injustice.)

Significantly, at defendant's plea hearing, the judge taking

his plea informed defendant that if he pled guilty, his plea could

impact his continued residency in the United States. Before us,

defendant argues that the judge's reference to residency as opposed

to deportation or removal did not adequately inform defendant of

the immigration consequences. The judge's questioning of

defendant before his plea, however, establishes that defendant was

advised of the possible immigration consequences. He was also

asked if he wanted more time to explore those consequences or to

consider any other factor before pleading guilty. Defendant

clearly stated that he did not need more time. Consequently, any

argument that defendant relied on the alleged mis-advice of his

plea counsel is rebutted by the actual record.

Defendant has also failed to demonstrate a reasonable

probability that enforcement of the time bar would result in a

fundamental injustice. Nowhere in defendant's certification does

he allege that he was innocent. Instead, the record established

that defendant gave a knowing, voluntary, and intelligent guilty

8 A-3577-16T1
plea. In pleading guilty, defendant admitted that he possessed

cocaine with the intent to distribute. There was nothing vague

or equivocal regarding defendant's guilty plea.

Moreover, even if we were to consider defendant's petition

on its merits, defendant cannot satisfy the grounds for PCR relief.

To establish a claim of ineffective assistance of counsel,

defendant must satisfy a two-part test: (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." Strickland v.

Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42,

58-59 (1987). Here, defendant can show no prejudice. Defendant

claims that his counsel was ineffective by mis-advising him that

he would not be deported as a result of his guilty plea. As

already noted, the judge taking the guilty plea corrected any mis-

advice by informing defendant that there were possible immigration

consequences to his guilty plea.

When defendant pled guilty in 2008, there was no requirement

that defense counsel review a defendant's immigration status with

defendant. Instead, at that time, defense counsel was only

ineffective if he or she provided inaccurate information

concerning the immigration consequences of a plea. See Chaidez

v. United States, 568 U.S. 342, 357-58 (2013); Padilla v. Kentucky,

9 A-3577-16T1
559 U.S. 356, 386 (2010) (Alito, J., concurring); State v. Nunez-

Valdez, 200 N.J. 129, 143 (2009). Here, any alleged mis-advice

by plea counsel was corrected by the plea judge and, therefore,

defendant can show no prejudice.

There was also no showing that required an evidentiary hearing

on defendant's PCR petition. A defendant is entitled to an

evidentiary hearing on a PCR petition if he or she establishes a

prima facie case in support of the petition. R. 3:22-10(b). As

defendant cannot show prejudice, there was no requirement that a

hearing be conducted.

Finally, defendant has not argued on this appeal that he is

entitled to withdraw his guilty plea. Indeed, he has not

established any of the factors that are required for the withdrawal

of a guilty plea. See State v. Slater, 198 N.J. 145, 157-58

(2009).

Affirmed.

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