STATE OF NEW JERSEY VS. KWESI DIXON (02-12-1567, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-0375-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KWESI DIXON,

Defendant-Appellant.
____________________________

Submitted November 7, 2019 – Decided November 15, 2019

Before Judges Haas and Enright.

On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 02-12-1567.

Joseph E. Krakora, Public Defender, attorney for
appellant (Monique D. Moyse, Designated Counsel, on
the brief).

Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Christopher W. Hsieh, Chief
Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
 Defendant Kwesi Dixon appeals from the May 7, 2018 Law Division order

denying his petition for post-conviction relief (PCR) without an evidentiary

hearing. We affirm.

On December 19, 2002, a Passaic County grand jury returned a five-count

indictment charging defendant with fourth-degree possession of marijuana,

N.J.S.A. 2C:35-10(a)(3) (count one); third-degree possession of marijuana with

intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(11) (count two); third-degree

possession of marijuana within 1000 feet of school property, N.J.S.A. 2C:35-7

and N.J.S.A. 2C:35-5(a) (count three); fourth-degree distribution of marijuana,

N.J.S.A. 2C:35-5(a)(1) and (b)(12), and N.J.S.A. 2C:2-6 (count four); and

fourth-degree possession of marijuana within 1000 feet of school property,

N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-5(a), and N.J.S.A. 2C:2-6 (count five).

Defendant later failed to appear, and the court issued a bench warrant.

Defendant was not apprehended until 2008.

On June 26, 2008, defendant pled guilty to count three of the indictment.

On October 3, 2008, the trial judge sentenced defendant in accordance with the

negotiated plea to four years in prison with a two-year period of parole

ineligibility. Defendant did not file a direct appeal.

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 In April 2010, defendant filed a petition for PCR, but withdrew it

approximately six months later. Defendant asserts that he was deported to

Jamaica in January 2011, allegedly as the result of his 2008 conviction. 1

On October 27, 2016, more than eight years after his conviction, defendant

filed the petition that is the subject of his current appeal. In his petition,

defendant stated that he was born in Jamaica and was a citizen of that country.

Defendant claimed that an attorney, who had been appointed to assist him

following his arrest in 2008 on the bench warrant, told him that because he "was

a permanent resident [he] had nothing to worry about" in terms of deportation,

and that "most likely [he] would be sent home on parole."

However, this attorney was later replaced, and defendant was represented

by a new attorney during the plea negotiations. This attorney persuaded the

State to reduce its initial plea offer from a seven-year term with forty-two

months of parole ineligibility to an offer of four years in prison with only a two-

year period of parole ineligibility. Defendant did not assert that his new attorney

1
Defendant did not provide any documentation concerning the deportation to
the Law Division. In addition to his 2008 conviction, defendant had two prior
drug distribution convictions from 2001. He was on probation in connection
with those offenses at the time he committed the acts for which he was convicted
in 2008.
A-0375-18T4
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provided him with any incorrect information concerning the deportation

consequences of accepting this plea.

Indeed, the plea form defendant signed in 2008 contained the following

language: "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?" In response,

defendant circled the word "yes."

During the plea colloquy, the judge asked defendant about his citizenship

status, and defendant replied that he was a citizen of Jamaica. The judge then

asked defendant, "Do you realize by pleading guilty to this charge it may cause

you to be deported to Jamaica?" Defendant replied, "Yes, sir." The judge also

asked defendant, "Knowing that do you want to proceed to plead guilty?" and

"[I]f you want to become a citizen of the United States in the future this may

affect your ability to become a citizen, do you understand that?" Defendant

answered, "Yes, sir" to both inquiries.

Defendant contended that the five-year time bar found in Rule 3:22-

12(a)(1) should be ignored in his case because to do otherwise would result in a

manifest injustice. He also argued that his lack of knowledge about the prospect

of deportation, which allegedly lasted until he was deported in 2011, established

excusable neglect.

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 In his written decision denying defendant's petition, Judge James X.

Sattely found that defendant waited eight years to file his petition, thus

exceeding the five-year time bar set forth in Rule 3:22-12(a) by over three years.

The judge determined that defendant's failure to abide by the Rule was not

excusable by his alleged lack of knowledge that he could be deported because

defendant still waited more than five years after he was deported to file his

petition.

Judge Sattely also found that defendant failed to prove that his plea

attorney provided him with any incorrect advice concerning the deportation

consequences of his decision to accept the State's offer. Thus, the judge

concluded that defendant failed to satisfy the two-prong test of Strickland v.

Washington, 466 U.S. 668, 687 (1984), which requires a showing that trial

counsel's performance was deficient and that, but for the deficient performance,

the result would have been different. This appeal followed.

On appeal, defendant raises the following contentions:

POINT ONE

[DEFENDANT] IS ENTITLED TO AN
EVIDENTIARY HEARING ON HIS CLAIM THAT
HIS ATTORNEY RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL FOR MISINFORMING
HIM ABOUT THE DEPORTATION
CONSEQUENCES OF HIS PLEA.

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 POINT TWO

THE PCR COURT ERRONEOUSLY RULED THAT
[DEFENDANT'S] PETITION WAS TIME BARRED
BECAUSE ANY DELAY IN FILING THE PETITION
WAS DUE TO DEFENDANT'S EXCUSABLE
NEGLECT AND 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.

When petitioning for PCR, the defendant must establish, by a

preponderance of the credible evidence, that he or she is entitled to the requested

relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451,

459 (1992). To sustain that burden, the defendant must allege and articulate

specific facts that "provide the court with an adequate basis on which to rest its

decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

The mere raising of a claim for PCR does not entitle the defendant to an

evidentiary hearing and the defendant "must do more than make bald assertions

that he [or she] was denied the effective assistance of counsel." State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Rather, trial courts

should grant evidentiary hearings and make a determination on the merits only

if the defendant has presented a prima facie claim of ineffective assistance.

Preciose, 129 N.J. at 462.

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 To establish a prima facie claim of ineffective assistance of counsel, the

defendant is obliged to show not only the particular manner in which counsel's

performance was deficient, but also that the deficiency prejudiced his or her

right to a fair trial. Strickland, 466 U.S. at 687; State v. Fritz, 105 N.J. 42, 52

(1987). Under the first prong of the test, the defendant must demonstrate that

"counsel made errors so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at

687. Under the second prong, the defendant must show "that counsel's errors

were so serious as to deprive the defendant of a fair trial, a trial whose res ult is

reliable." Ibid. That is, "there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different."

Id. at 694.

A defendant may meet the first prong of the Strickland ineffective

assistance of counsel test in the context of a guilty plea where he or she can

show that counsel's representation fell short of the prevailing standards expected

of criminal defense attorneys. Padilla v. Kentucky, 559 U.S. 356, 366-67

(2010). Counsel's performance is not deficient so long as "a defendant

considering whether or not to plead guilty to an offense receives correct

information concerning all of the relevant material consequences that flow from

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such a plea." State v. Agathis, 424 N.J. Super. 16, 22 (App. Div. 2012). The

second prong requires a defendant to establish a reasonable probability that he

or she would not have pled guilty but for counsel's errors. State v. Gaitan, 209

N.J. 339, 351 (2012).

It is undisputed that "a defendant can show ineffective assistance of

counsel by proving that his [or her] guilty plea resulted from 'inaccurate

information from counsel concerning the deportation consequences of his [or

her] plea.'" State v. Brewster, 429 N.J. Super. 387, 392 (App. Div. 2013)

(quoting State v. Nuñez-Valdéz, 200 N.J. 129, 143 (2009)). Counsel's duty

includes an affirmative responsibility to inform a defendant entering a guilty

plea of the relevant law pertaining to mandatory deportation. Padilla, 559 U.S.

at 368-69. Our Supreme Court has made clear that counsel's "failure to advise

a non-citizen client that a guilty plea will lead to mandatory deportation deprives

the client of the effective assistance of counsel guaranteed by the Sixth

Amendment." State v. Barros, 425 N.J. Super. 329, 331 (App. Div. 2012) (citing

Padilla, 559 U.S. at 369).

In Chaidez v. United States, 568 U.S. 342 (2013), however, the United

States Supreme Court concluded that Padilla, by imposing a new obligation and

a new rule of law, would be applied prospectively only. Id. at 358. Accordingly,

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"defendants whose convictions became final prior to Padilla . . . cannot benefit

from its holding." Ibid.

Guilty pleas entered prior to Padilla are reviewed to determine whether

counsel provided affirmatively false information regarding the plea's

immigration consequences. State v. Santos, 210 N.J. 129, 143-44 (2012). "Only

if defendant's attorney affirmatively gave incorrect advice about the deportation

consequences of his [or her] guilty plea might he [or she] be entitled to set aside

his [or her] conviction in accordance with the holding of Nuñez-Valdéz."

Brewster, 429 N.J. Super. at 394-95. Defendant entered his plea prior to Padilla.

We conclude that this record does not support any claim that either of

defendant's attorneys affirmatively misled him. Defendant admitted under oath

that he reviewed his plea form with the attorney who negotiated the final plea

on his behalf, and it stated that deportation was a possible consequence to the

entry of a guilty plea. Nothing said during the plea colloquy refuted the

statement made in the plea form. Consequently, Judge Sattely's analysis was

proper. We have only defendant's bare allegation that his prior attorney

provided him information contrary to what was stated on the plea form and

defendant's sworn testimony during the plea colloquy, which contradicts his

A-0375-18T4
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current allegation. That is not enough to establish that counsel's advice deviated

from the prevailing professional norms.

We also reject defendant's claim that the Rule 3:22-12(a)(1) time bar

should be ignored in this case. In assessing excusable neglect for failing to file

a timely petition, we "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. Norman,

405 N.J. Super. 149, 159 (App. Div. 2009) (quoting State v. Afanador, 151 N.J.

41, 52 (1997)). More than "a plausible explanation for [the defendant's] failure

to file a timely PCR petition" is required. Ibid. That defendant had not earlier

faced deportation is not a sufficient explanation for the failure to file a timely

PCR petition. Ignorance of the process does not establish excusable neglect.

State v. Murray, 162 N.J. 240, 246 (2000). Moreover, as Judge Sattely noted,

defendant waited five more years after he was deported to finally pursue PCR

relief.

Clearly, Rule 1:1-2(a) permits courts in "exceptional circumstances" to

relax the five-year time bar, but only if a defendant can demonstrate an injustice

by a preponderance of the credible evidence. Mitchell, 126 N.J. at 579. To relax

the five-year time limitation, our Supreme Court has required a showing of

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"compelling, extenuating circumstances," State v. Milne, 178 N.J. 486, 492

(2004) (quoting Afanador, 151 N.J. at 52); or alternatively, "exceptional

circumstances," Murray, 162 N.J. at 246. The five-year time bar may be set

aside only 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). Under the

circumstances presented in this case, defendant has not demonstrated a

miscarriage of justice which would warrant setting aside the five-year time bar.

Finally, because the judge properly concluded that defendant failed to

meet either prong of the Strickland test, he was not required to conduct an

evidentiary hearing on defendant's PCR application. Preciose, 129 N.J. at 462.

Affirmed.

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