NOT FOR PUBLICATION WITHOUT THE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-4728-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ELVIN J. FRIAS,
Defendant-Appellant.
____________________________
Submitted April 17, 2018 – Decided July 13, 2018
Before Judges Fisher and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Accusation No.
07-11-1098.
Joseph E. Krakora, Public Defender, attorney
for appellant (Adam W. Toraya, Designated
Counsel, on the brief).
Camelia M. Valdes, Passaic County
Prosecutor, attorney for respondent (Marc A.
Festa, Senior Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
On April 25, 2008, after pleading guilty to an accusation
of third-degree possession of controlled dangerous substances
(cocaine) with intent to distribute within 1,000 feet of school
property, defendant Elvin J. Frias – a non-citizen of the United
States – was sentenced in accordance with his plea agreement to
time served effective his plea date and a five-year term of
probation. He did not appeal his conviction. However, over
six-and-a-half years later on September 29, 2015, upon facing
deportation proceedings due to his conviction,1 defendant filed a
post-conviction relief (PCR) petition – beyond the five-year
time limitation under Rule 3:22-12(a)(1) – alleging ineffective
assistance of counsel.
During an evidentiary hearing before Judge Adam E. Jacobs,
in which defendant was provided a Spanish interpreter, he
testified that counsel failed to advise him of the immigration
consequences of his plea. He further contended counsel did not
request that the trial court provide him with an interpreter at
his plea hearing; thus, due to his limited English, he did not
read the plea form questions. This alleged oversight included
plea form question 17, which 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" next to this question. His colloquy with the plea court
indicated he wanted to plead guilty despite knowing that as a
1
Defendant was apprehended by the United States Immigration and
Customs Enforcement, and is currently being held in custody.
2 A-4728-15T4
non-citizen of the United States, he could be deported due to
his conviction and that it could affect his ability to become a
citizen in the future should he so desire. Counsel did not
testify because he had no recollection of representing
defendant.
Judge Jacobs issued an order denying PCR together with a
written decision finding that defendant's petition was both
untimely and substantively without merit. The judge determined
that defendant's PCR petition was procedurally deficient because
he filed it well beyond the five-year time limit and that, in
order relax the time bar as prescribed by Rule 3:22-12(a)(1)(A),
he failed to assert facts indicating the delay was due to
excusable neglect.
Notwithstanding the time bar, Judge Jacobs addressed the
merits of defendant's petition and found that he failed to
demonstrate he had received ineffective assistance of counsel.
The judge recognized that because defendant's convictions
predated the Supreme Court's seminal 2010 opinion in Padilla v.
Kentucky, 559 U.S. 356, 367 (2010), concerning deportation
consequences for a criminal defendant, his claims are governed
by State v. Nunez-Valdez, 200 N.J. 129, 143-44 (2009). Under
those pre-Padilla standards, the judge noted that a defendant
seeking relief based upon post-conviction deportation
3 A-4728-15T4
consequences can only prevail upon a demonstration that counsel
affirmatively provided misleading advice about such consequences
flowing from a guilty plea. Id. at 143. Counsel therefore had
no duty to inform a client of such consequences; representation
was deemed constitutionally ineffective only if misinformation
was given to the client about the immigration consequences of
pleading guilty. State v. Gaitan, 209 N.J. 339, 375 (2012).
Considering that defendant did not allege counsel misadvised him
about the immigration consequences of his plea, coupled with his
review of the plea transcript2 and assessment of defendant's
evidentiary hearing testimony, the judge found counsel did not
provide ineffective assistance.
On appeal, defendant argues:
POINT ONE
THE PCR COURT'S ORDER SHOULD BE REVERSED AND
THE MATTER REMANDED TO THE [PCR] COURT TO
ALLOW THE DEFENDANT TO VACATE HIS GUILTY
PLEA BECAUSE THE PCR COURT ERRED IN
DETERMINING THAT DEFENDANT DID NOT MEET HIS
2
Defendant, nineteen years of age at the time of his plea,
testified that he had a ninth grade education; that he read and
wrote English; that he understood he had a right to go to a jury
trial; that he understood the charges and the terms of the plea
offer, which he discussed with counsel; that he signed,
initialed, and understood the plea form; that no one forced,
coerced, or encouraged him to plead guilty; and that he was
satisfied with the services of his counsel.
4 A-4728-15T4
BURDEN UNDER THE STRICKLAND3 STANDARD OF
INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT TWO
THE [PCR] COURT MISAPPLIED ITS DISCRETION IN
APLLYING [RULE] 3:22-12 BECAUSE THE
SIGNIFICANCE OF THE ISSUES RAISED, AND THEIR
IMPACT ON THE INTEGRITY OF THE CRIMINAL
JUSTICE SYSTEM, WARRANTED A RELAXATION OF
THE FIVE-YEAR TIME BAR.
We conclude these arguments are unpersuasive and affirm
substantially for the reasons set forth by Judge Jacobs in his
cogent decision. We add the following brief comments.
A late filing after the five-year time limitation period
may be considered if there is excusable neglect for the late
filing and that a fundamental injustice will result if
defendant's claims are not considered on their merits. State v.
Brewster, 429 N.J. Super. 387, 400 (App. Div. 2013). In
determining whether to relax the time bar, 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. McQuaid, 147 N.J. 464, 485
(1997) (quoting State v. Mitchell, 126 N.J. 565, 580 (1992)).
Absent compelling extenuating circumstances, the burden to
3
Strickland v. Washington, 466 U.S. 668, 687, 694 (1984).
5 A-4728-15T4
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). "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." Brewster, 429 N.J. Super. at 400 (quoting Mitchell,
126 N.J. at 587).
Combining these principles with our approval of Judge
Jacobs' conclusion4 that defendant was advised of the immigration
consequences of his plea further supports our agreement with the
judge that there was no excusable neglect for defendant's
failure to file a timely PCR claim, and therefore, no injustice
would result in not relaxing the time bar.
Affirmed.
4
We defer to a judge's findings that are "substantially
influenced by [the trial judge's] opportunity to hear and see
the witnesses and to have the 'feel' of the case, which a
reviewing court cannot enjoy." State v. Rockford, 213 N.J. 424,
440 (2013) (alteration in original) (quoting State v. Robinson,
200 N.J. 1, 15 (2009)).
6 A-4728-15T4