NOT FOR PUBLICATION WITHOUT THE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-3327-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CARLOS FLAMES,
Defendant-Appellant.
_____________________________________
Submitted May 2, 2018 – Decided July 12, 2018
Before Judges Fuentes and Koblitz.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
10-06-1108.
Joseph E. Krakora, Public Defender, attorney
for appellant (Jack L. Weinberg, Designated
Counsel, on the brief).
Dennis Calo, Acting Bergen County Prosecutor,
attorney for respondent (Ian C. Kennedy,
Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Carlos Flames appeals from the order of the Criminal
Part denying his post-conviction relief (PCR) petition. We affirm.
On October 12, 2010, defendant entered into a negotiated
agreement with the State through which he pled guilty to third
degree distribution of marijuana, in a quantity of one ounce or
more, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11). At the
plea hearing, the judge asked defendant the following questions:
Q. All right, Mr. Flames, are you a U.S.
citizens?
A. Yes, ma'am.
Q. Those plea forms that you have before
[you], there are some initials at the bottom.
Who wrote those initials?
A. I did, ma'am.
Q. What about the last page? There's two pages
with signatures on them. Whose signatures are
those?
A. That's my signature, ma'am.
Q. Did you sign these plea forms and initial
them after going through each and every
question with your attorney?
A. Yes, Your Honor.
Q. Do you have any questions you want to ask
him?
A. No, Your Honor.
Q. Are you satisfied with his services?
A. Yes, Your Honor.
The standard Plea Form referred to by the judge in the plea
hearing contained a total of twenty-five questions. Question 17a
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asked defendant: "Are you a citizen of the United States?" The
Form provided a two-option response: "[Yes]" or "[No]." Defendant
circled "[Yes]." At the plea hearing, defendant provided a
factual basis for his guilty plea in which he admitted that on
January 5, 2010, he sold an ounce or more of marijuana to an
undercover detective.
On January 7, 2011, defendant appeared before a different
judge for sentencing. The Adult Presentence Investigation Report
prepared by the vicinage's Probation Department pursuant to Rule
3:21-2(a), identified defendant's place of birth as North Bergen,
New Jersey. At the sentencing hearing, the judge asked defense
counsel: "All right. So, any changes in the presentence report
there, counsel?" Defense counsel responded: "No, Your Honor. The
presentence report has been reviewed by myself and my client and
is accurate." The judge sentenced defendant to a three-year term
of probation. The judge signed the Judgment of Conviction (JOC)
on January 11, 2011. Defendant did not appeal.
On January 25, 2013, defendant appeared before another judge
in response to the charge of violating the terms of probation by
failing to report to his probation officer and being charged and
arrested for a new indictable offense. The judge found, by a
preponderance of the evidence, that defendant had violated the
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terms of his probation. The judge terminated defendant's probation
as "unimproved."
On January 16, 2016, defendant filed a pro se PCR petition
alleging ineffective assistance of trial counsel based on the
following facts:
Counsel misinformed me about the consequences
of my plea agreement pertaining to the effect
of immigration policies on my alien status. I
was cajoled into accepting a plea agreement
without being informed of the pros and cons
of trial. Counsel failed to investigate my
case and did not go over my discovery or
explain my legal options fully. Counsel
failed to file pre-trial motions. Excusable
Neglect: Petitioner is filing the petition
five (5) years beyond the time prescribed by
this rule.
By order dated February 3, 2016, the Criminal Part assigned
counsel to represent defendant in the presentation of the PCR
petition. PCR counsel filed a brief and submitted a certification
from defendant in which he again alleged his trial attorney had
been ineffective by failing to apprise him of the immigration
consequences of his guilty plea. In this undated certification,
defendant stated that he had a "pending case in Elizabeth wherein
the State of New Jersey is seeking to deport me."
On March 8, 2017, defendant's PCR petition came for oral
argument before Judge Christopher R. Kazlau. After considering
the arguments of counsel, Judge Kazlau found defendant's petition
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was procedurally barred as untimely under Rule 3:22-12(a)(1)
because: (1) it was filed on January 16, 2016, more than 5 years
after the trial court entered the JOC on January 11, 2011; and (2)
defendant did not provide any grounds for relaxing the five-year
restriction. Independent of this procedural bar, Judge Kazlau
also found defendant's claim of ineffective assistance of trial
counsel based on his immigration status was without merit because
the record shows defendant consistently misrepresented his
immigration status to the court at both the plea and sentencing
hearings.
Defendant now appeals raising the following arguments.
POINT I
THE MOTION COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST-CONVICTION
RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
HEARING. THE DEFENDANT ESTABLISHED A PRIMA
FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL
COUNSEL. THE FILING OF THE PETITION FIVE DAYS
OUT OF TIME SHOULD NOT BAR THE DEFENDANT
CONSIDERATION OF HIS PETITION ON THE MERITS.
A. The Defendant was Entitled to an
Evidentiary Hearing.
B. The Petition Should Not Be Time-
Barred by R. 3:22-12.
POINT II
THE COURT ERRED WHEN IT DENIED THE DEFENDANT
AN EVIDENTIARY HEARING ON THE CLAIM THAT THE
DEFENDANT'S PLEA WAS NOT KNOWINGLY AND
VOLUNTARILY ENTERED. ENFORCEMENT OF THE PLEA
IS FUNDAMENTALLY UNFAIR. (Partially raised
below)
5 A-3327-16T4
We reject these arguments and affirm substantially for the
reasons expressed by Judge Kazlau in his oral opinion delivered
from the bench on March 8, 2017. We review a claim of ineffective
assistance of counsel under the two-prong test established by the
United States Supreme Court in Strickland v. Washington, 466 U.S.
668 (1984), and subsequently adopted by our Supreme Court in State
v. Fritz, 105 N.J. 42 (1987). First, defendant must demonstrate
that defense counsel's performance was deficient. Strickland, 466
U.S. at 687. Second, he must show there exists "a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Id. at 694.
"[T]o set aside a guilty plea based on ineffective assistance of
counsel, a defendant must show that (i) counsel's assistance was
not 'within the range of competence demanded of attorneys in
criminal cases'; and (ii) 'that there is a reasonable probability
that, but for counsel's errors, [the defendant] would not have
pled guilty and would have insisted on going to trial." State v.
Nunez-Valdez, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco,
137 N.J. 434, 457 (1994))
The record shows defendant intentionally and unequivocally
misrepresented his immigration status to the trial court as well
as the probation officer who prepared the presentence report. The
certification defendant submitted in support of his PCR petition
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does not provide any explanation for this material
misrepresentation of his immigration status. Defendant cannot now
claim he received ineffective legal representation based on his
failure to disclose his immigration stats to both his attorney and
the court. With respect to the timeliness of defendant's PCR
petition, the record shows defendant "signed" the pro se petition
on Saturday, January 16, 2016.
Rule 1:3-1 provides, in pertinent part:
In computing any period of time fixed by rule
or court order, the day of the act or event
from which the designated period begins to run
is not to be included. The last day of the
period so computed is to be included, unless
it is a Saturday, Sunday or legal holiday, in
which event the period runs until the end of
the next day which is neither a Saturday,
Sunday nor legal holiday.
[Ibid. (emphasis added).]
The appellate record does not include a "filed" stamped copy of
the petition. Assuming the petition was received by the court on
Monday, January 18, 2016, the petition was filed five years and
seven days after the court signed the JOC on January 11, 2011,
rendering it untimely under Rule 3:22-12(a)(1). We also agree
with Judge Kazlau that defendant did not present any grounds to
relax the time restrictions under the Rule.
Affirmed.
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