STATE OF NEW JERSEY VS. KEVIN BROWN (08-12-2199, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0777-16T3

STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
July 23, 2018

v. APPELLATE DIVISION

KEVIN BROWN,

Defendant-Appellant.

__________________________________

Argued November 1, 2017 – Decided July 23, 2018

Before Judges Fuentes, Manahan and Suter.1

On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
08-12-2199.

Eric M. Mark argued the cause for appellant.

Michael R. Philips, Assistant Prosecutor,
argued the cause for respondent (Gurbir S.
Grewal, Bergen County Prosecutor, attorney;
Michael R. Philips, of counsel and on the
brief; Nicole Paton, on the brief).

The opinion of the court was delivered by

FUENTES, P.J.A.D.

1
Judge Suter did not participate at oral argument. She was
added to this case with the consent of the parties.
 Defendant Kevin Brown appeals from the order of the

Criminal Part denying his petition seeking post-conviction

relief (PCR). We affirm.

On December 19, 2008, a Bergen County Grand Jury returned

an indictment against defendant charging him with third-degree

possession of marijuana with intent to distribute, N.J.S.A.

2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(11); fourth-degree possession

of marijuana, N.J.S.A. 2C:35-10(a)(3); and second-degree

endangering the welfare of a child, N.J.S.A. 2C:24-4(a).

Defendant was represented at all proceedings related to this

case by a staff attorney from the Bergen County Office of the

Public Defender.

On July 7, 2010, defendant entered into a negotiated

agreement with the State through which he pled guilty to the

first count in the indictment charging him with third-degree

possession of marijuana with intent to distribute.2 As described

by the prosecutor, in exchange for defendant's guilty plea, the

State agreed to dismiss the remaining counts in the indictment

and recommend that the court sentence defendant to a term of

2
In response to his attorney's questions in the course of
providing a factual basis in support of his guilty plea,
defendant stated under oath that he had in his possession
"approximately . . . five pounds" of marijuana at the time of
his arrest.

2 A-0777-16T3
probation conditioned upon serving 364 days in the Bergen County

jail.3

After placing defendant under oath, the judge asked him the

following questions with respect to his immigration status and

apprised him of the potential legal consequences of his decision

to plead guilty:

THE COURT: All right. Now, are you a United
States citizen?

DEFENDANT: No.4

THE COURT: Do you understand [that] if
you're not a United States citizen or
national you may be deported by virtue of
your plea of guilty?

DEFENDANT: Yes, sir.

THE COURT: Do you understand that if you
plead guilty to a crime of a certain
aggravated felony under federal law you will
be subject . . . to deportation or removal?

DEFENDANT: Yes, sir.

THE COURT: Do you understand you have the
right to seek legal advice on your
immigration status prior to entering a plea
of guilty?

3
Defendant's plea counsel testified at the PCR evidentiary
hearing that the State's offer during the motion to suppress was
seven years in State prison.
4
The appellate record also includes a copy of the standard Plea
Form defendant completed and signed with the assistance of his
attorney. Question 17a in the Plea Form asked defendant: "Are
you a citizen of the United States?" Defendant circled "No."

3 A-0777-16T3
 DEFENDANT: Yes, sir.

THE COURT: All right. And you have sought
advice on the immigration aspect of it?

DEFENDANT: No.

THE COURT: Are you prepared to proceed
today?

DEFENDANT: No – yes, yes, your Honor. Yes.

THE COURT: So you're not seeking any
additional time to seek any advice as to the
immigration[?]

DEFENDANT: No, your Honor.

THE COURT: And, again, you fully understand
that you're pleading guilty to possession
with intent to distribute a controlled
dangerous substance. If that's a certain
aggravated felony, then you would be subject
to deportation. Do you understand that?

DEFENDANT: Yes, sir, I do.

The court sentenced defendant on September 17, 2010. The

judge found aggravating factors three, the risk that defendant

will commit another offense, N.J.S.A. 2C:44-1(a)(3), six, the

extent of defendant's prior criminal record and the seriousness

of the offenses,5 N.J.S.A. 2C:44-1(a)(6), and nine, the need for

deterring defendant and others from violating the law, N.J.S.A.

2C:44-1(a)(9). The judge concluded that "[t]he aggravating

5
The judge noted that defendant's prior record included eight
disorderly persons offenses, possession of marijuana, and one
indictable conviction for unlawful possession of a handgun.

4 A-0777-16T3
factors clearly and convincingly outweigh the mitigating

factors."6 Despite reaching this conclusion, the judge sentenced

defendant to a three-year term of probation subject to the

payment of the statutory costs and penalties. Although the plea

agreement permitted the court to sentence defendant to serve up

to 364 days in the Bergen County jail as a condition of

probation, the judge opted not to impose any jail time.

Defendant did not file a direct appeal to this court

challenging any aspect of his plea hearing or the sentence

imposed by the court. On March 22, 2016,7 defendant, represented

by private counsel, filed this PCR petition alleging ineffective

assistance of trial counsel. Defendant averred that his trial

attorney

did not advise [him] that a plea to an
aggravated felony would result in virtually
certain deportation and that [his] only
chance at relief would be to show it is more
likely than not [he] would be tortured if
returned to [his] home country. In regards
to [his] immigration situation, [defendant's
attorney] told [him] only "as long as you

6
Although the judge did not make a specific finding with respect
to mitigating factors, the Judgment of Conviction dated
September 20, 2010 shows the judge did not find any mitigating
factors.
7
The copy of the PCR petition submitted by defendant as part of
the appellate record shows defendant signed the petition on
March 11, 2016. However, defendant does not dispute the
Criminal Part received the PCR petition on March 22, 2016.

5 A-0777-16T3
 don't do a year and a day in jail, you're
fine."

Defendant also included as part of the appellate record a

copy of a formal decision and an order issued by United States

Immigration Judge Daniel A. Morris on September 20, 2016. In

this decision, Judge Morris states, in relevant part, that

defendant

is a native and citizen of . . . Jamaica who
was admitted to the United States at New
York, New York on April 16, 1988 as a lawful
permanent resident . . . On October 9, 2015,
the Department of Homeland Security (DHS)
personally served [defendant] with a Notice
to Appear (NTA) charging that he is
removable under INA8 §237(a)(2)(A)(iii) and
INA §237(a)(2)(B)(i).

The judge assigned to hear defendant's PCR petition was the

same judge who presided over the plea and sentencing hearings.

On July 11, 2016, the judge convened the attorneys in the case

to determine whether an evidentiary hearing was warranted. The

PCR judge noted for the record that the staff attorney from the

Bergen County Office of the Public Defender, who represented

defendant during the plea negotiations and at the July 7, 2010

plea hearing, was present with the original files. Despite his

repeated statements that he had not decided whether an

evidentiary hearing was necessary, the judge allowed both the

8
INA stands for "Immigration and Naturalization Act."

6 A-0777-16T3
prosecutor and PCR counsel to question under oath defendant's

original counsel, a woman who was not married to defendant, but

was described by PCR counsel as defendant's "life partner[] for

27 years," and finally, defendant himself.

These three individuals were thoroughly questioned by the

prosecutor, PCR counsel, and the PCR judge about every detail

concerning the discussions that led to defendant's guilty plea

on July 7, 2010. In short, notwithstanding the PCR judge's

disclaimer concerning the nature of these proceedings, defendant

was afforded an evidentiary hearing within the meaning of Rule

3:22-10. At the conclusion of the evidentiary hearing, PCR

counsel argued that plea counsel erroneously advised defendant

there would not be any negative immigration consequences as long

as the sentence imposed by the court was less than "a year and a

day." The prosecutor argued that at the time of the plea

hearing, defendant's only concern was to minimize his penal

exposure. According to the prosecutor, "this immigration issue

has only become an issue once [defendant] was arrested by

immigration authorities." The PCR judge reserved decision.

In a letter-opinion dated August 25, 2016, the PCR judge

reviewed the procedural history of the case, and articulated the

two-prong test established by the United States Supreme Court in

Strickland v. Washington, 466 U.S. 668 (1984), and subsequently

7 A-0777-16T3
adopted by our Supreme Court in State v. Fritz, 105 N.J. 42

(1987), as supplemented by Padilla v. Kentucky, 559 U.S. 356,

366 (2010) and State v. Nunez-Valdez, 200 N.J. 129, 139 (2009),

and concluded defendant had not met his burden of proving "plea

counsel" was ineffective. The PCR judge gave the following

explanation for his ruling:

There is no evidence that trial counsel gave
defendant inaccurate or misleading advice
other than bald assertions from the
defendant himself. Even more importantly,
the defendant was put on notice of the
possible immigration consequences through
both the plea forms and the Judge in the
case. Therefore, this [c]ourt finds that
the defendant is unable to establish a
sufficient claim of ineffective assistance
of counsel.

Against this record, defendant appealed raising the

following arguments:

I. INEFFECTIVE ASSISTANCE OF COUNSEL

A. Standard of Review.

B. [Defendant's trial counsel]
Gave Mr. Brown Patently Incorrect
Advice.

1. Question 1: What was the
Advice?

2. Question 2: Was the Advice
Wrong?

C. Mr. Brown was Prejudiced by his
Attorney's Incorrect Advice.

8 A-0777-16T3
 This matter came before this court for oral argument on

November 1, 2017. In the course of argument, we noted that

defendant's PCR petition was filed on March 22, 2016, more than

five years from September 20, 2010, the date the trial court

signed the Judgment of Conviction. Defendant did not directly

raise nor address the standard for relaxing Rule 3:22-12(a)'s

five-year procedural bar before the PCR judge. We asked counsel

how the Criminal Part could decide this PCR without first

addressing the procedural hurdle presented in Rule 3:22-

12(a)(1), which states, in relevant part:

First Petition For Post-Conviction Relief.
Except as provided in paragraphs (a)(2),
(a)(3), and (a)(4) of this rule, no petition
shall be filed pursuant to this rule more
than 5 years after the date of entry
pursuant to Rule 3:21-5 of the judgment of
conviction that is being challenged unless:

(A) it 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[.]

[(Emphasis added).]

In order to allow both appellate counsel and the prosecutor

sufficient time to more thoroughly address this potentially

dispositive procedural issue, we entered a sua sponte order on

November 13, 2017, that directed the attorneys to submit

9 A-0777-16T3
supplemental briefs, not to exceed twenty-five pages, addressing

the following issues: (1) Is the procedural bar in Rule 3:22-

12(a)(1)(A) subject to waiver if the State fails to raise it

before the PCR court?; and (2) If the rule's preclusive effect

is not subject to waiver, should the remedy on appeal be to

either (a) remand the matter to the PCR court to permit

defendant an opportunity to establish excusable neglect and a

reasonable probability that if his factual assertions are true,

enforcement of the time bar would result in a fundamental

injustice; OR (b) review the record developed before the PCR

court as is and decide the matter on appeal as a matter of law.

Both parties submitted their supplemental briefs as

directed. We first address the issue of waiver. Defendant

argues he raised the five-year procedural bar when he noted in

his verified petition:

I had no reason to suspect this crime would
guarantee my deportation because I have been
convicted of other drug offenses and never
had immigration consequences. The only way
I would have known was with proper advice.
Of all my convictions, this is the only
aggravated felony.

It is a fundamental injustice for a non-
citizen to be convicted of a crime
guaranteeing deportation and exile from a
long life with my family when it was
possible to prevent such exile by
negotiating a plea to a non-aggravated
felony or completing the motion to suppress

10 A-0777-16T3
 and taking the case to trial if an
immigration-safe plea was not possible.

The State's supplemental brief relies on this court's

decision in State v. Cann, 342 N.J. Super. 93, 101-02 (App. Div.

2001), in which we held: "A petition is time-barred if it does

not claim excusable neglect, or allege the facts relied on to

support that claim." The State emphasizes that defendant did

not present "any facts regarding any timeline beyond the date of

his guilty plea." With respect to this court's query as to

whether we should remand the matter to allow defendant to

develop the appropriate record, the State argues that defendant

is not entitled to a "second bite of the apple because facts

establishing excusable neglect must be alleged in the first

place."

The parties' supplemental submissions were not entirely

responsive to this court's concerns. Defendant did not directly

raise nor address the standard for relaxing Rule 3:22-12(a)'s

five-year procedural bar before the PCR judge. Viewed in the

light most favorable to defendant, the statements in his PCR

petition obliquely provide an explanation for his failure to

seek PCR before his detention by immigration authorities. This

does not address defendant's failure to heed the trial judge's

suggestion to consult with an immigration attorney before

deciding to plead guilty to a third-degree offense in which he

11 A-0777-16T3
admitted to possessing approximately five pounds of marijuana

with the intent to distribute. As the Court noted in Padilla:

Immigration law can be complex, and it is a
legal specialty of its own. Some members of
the bar who represent clients facing
criminal charges, in either state or federal
court or both, may not be well versed in it.
There will, therefore, undoubtedly be
numerous situations in which the deportation
consequences of a particular plea are
unclear or uncertain. The duty of the
private practitioner in such cases is more
limited. When the law is not succinct and
straightforward . . ., a criminal defense
attorney need do no more than advise a
noncitizen client that pending criminal
charges may carry a risk of adverse
immigration consequences. But when the
deportation consequence is truly clear . . .
the duty to give correct advice is equally
clear.

[Padilla, 559 U.S. at 369 (emphasis added).]

As a staff attorney in the Public Defender's office, trial

counsel's responsibility to defendant was to provide a competent

defense to the criminal charges filed against him and to apprise

him of the potential collateral consequences a conviction may

have on his immigration status. Ibid. At the evidentiary

hearing, defendant testified that his trial attorney told him

that his conviction would not have adverse consequences on his

immigration status provided any custodial sentence imposed by

the court was less than a year and one day. The PCR judge

12 A-0777-16T3
rejected defendant's testimony as not credible. The PCR judge

provided the following explanation in support of his finding:

After evaluating the sufficiency of the
claim of [erroneous advice] the defendant
alleges to have received from trial counsel,
it is clear from the record and the plea
forms, that defendant knew the crime he was
pleading to may constitute an aggravated
felony and as such, subjected him to
deportation. Further, defendant knew he had
the right to seek advice from an outside
immigration counsel and would be afforded
time from the court if he so desired as can
be seen in both the record and the standard
plea form. The defendant in his own words
told the court that "I wish for a chance at
life without going to jail." Also, at
sentencing defendant acknowledged, on the
record, he may be deported, and once again
declined the opportunity to speak to
immigration counsel. It is clear that
defendant was on notice of the fact that
deportation was a possible consequence of
his plea.

As an appellate court, we are bound to uphold a trial

judge's factual findings "which are substantially influenced by

[the judge's] opportunity to hear and see the witnesses and to

have a feel of the case, which a reviewing court cannot enjoy."

Nunez-Valdez, 200 N.J. at 141 (quoting State v. Elders, 192 N.J.

224, 244 (2007)).

Our Supreme Court has reaffirmed and "emphasized the

important policy" underpinning the requirement that PCR

petitions be timely filed:

13 A-0777-16T3
 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 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.

[State v. McQuaid, 147 N.J. 464, 485 (1997)
(quoting State v. Mitchell, 126 N.J. 565,
575-76 (1992)).]

Mindful of these policy considerations, when a first PCR

petition shows it was filed more than five years after the date

of entry of the judgment of conviction, we hold that 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.

14 A-0777-16T3
 Here, the PCR judge found defendant was aware of the

immigration consequences of his conviction at the time he

decided to plead guilty. Stated differently, defendant did not

show "excusable neglect" to justify filing a facially untimely

PCR petition. Despite this finding, the judge reviewed

defendant's claims of ineffective assistance of trial counsel

and found them to be without merit. The record supports the PCR

judge's ruling. The record of the plea hearing shows the trial

judge gave defendant clearly worded warnings of the potential

immigration consequences of his conviction. The judge also gave

defendant the opportunity to consult with an attorney who

specializes in immigration law. Defendant failed to take

advantage of this opportunity and made a knowing, voluntary, and

intelligent decision to proceed.

A defendant cannot decide to remain intentionally ignorant

of the legal consequences of his decision as a means of

establishing excusable neglect. We thus affirm the PCR

judge's decision to deny defendant's petition, but for reasons

other than those expressed by the judge. See State v. Adubato,

420 N.J. Super. 167, 176 (App. Div. 2011). Specifically, we

hold that defendant is barred from seeking PCR because his first

petition was filed "more than 5 years after the date of entry

pursuant to Rule 3:21-5 of the judgment of conviction that is

15 A-0777-16T3
being challenged," and because he failed to allege facts showing

that the delay was due to excusable neglect and "that there is a

reasonable probability that if [his] 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).

Affirmed.

16 A-0777-16T3