NOT FOR PUBLICATION WITHOUT THE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-0321-19T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BYRON MUNEZ-RIVERA,
Defendant-Appellant.
________________________
Argued September 29, 2020 – Decided November 20, 2020
Before Judges Fasciale and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Hunterdon County, Indictment No. 05-02-
0052.
William A. Proetta argued the cause for appellant
(Proetta, Oliver & Fay, attorneys; William A. Proetta,
on the brief).
Jeffrey L. Weinstein, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Michael J. Williams, Acting Hunterdon
County Prosecutor, attorney; Jeffrey L. Weinstein, of
counsel and on the briefs).
PER CURIAM
Defendant, Byron Munez Rivera, appeals from the August 16, 2019 order
denying his petition for post-conviction relief (PCR) without an evidentiary
hearing.1 He contends his trial counsel rendered ineffective assistance by
misinforming him of the immigration consequences of his guilty plea. Judge
Angela F. Borkowski denied defendant's petition both as time-barred under Rule
3:22-12 and on the merits, finding defendant failed to establish either prong of
the two-pronged test established in Strickland v. Washington.2 After carefully
reviewing the record in view of the governing legal principles, we affirm
substantially for the reasons set forth in Judge Borkowski's thorough twenty -
eight page decision.
In 2005, defendant pled guilty to the third-degree crime of uttering a
document that falsely purports to be driver's license, N.J.S.A. 2C:21-2.1(c). In
accordance with the plea agreement, the State dismissed a second-degree charge
for unlawful use of personal identifying information of another, N.J.S.A. 2C:21 -
1
Although the PCR court did not grant an evidentiary hearing on the merits of
defendant's ineffective assistance claim, the court at oral argument heard
testimony from defendant with respect to his argument that there was excusable
neglect for filing the PCR petition beyond the five-year time limit prescribed in
Rule 3:22-12.
2
466 U.S. 668 (1984).
A-0321-19T4
2
17.2. Defendant was sentenced to a two-year period of probation. Defendant
filed his PCR petition approximately fourteen years after the sentence was
imposed and twelve years after he completed probation.
Defendant raises the following issues for our consideration:
POINT I
THE TRIAL COURT ERRED BY NOT RELAXING THE
FIVE-YEAR TIME LIMIT FOR POST-CONVICTION
RELIEF APPLICATIONS.
A. THE TRIAL COURT ERRED BY NOT
RELAXING THE FIVE-YEAR TIME LIMIT FOR
PCR PETITIONS BECAUSE MR. RIVERA SHOWED
EXCUSABLE NEGLECT.
I. THE TRIAL COURT ERRED BY FINDING
THAT MR. RIVERA'S RELIANCE ON
INACCURATE IMMIGRATION ADVICE
DOES NOT CONSTITUTE EXCUSABLE
NEGLECT.
B. THE TRIAL COURT ERRED BY NOT
RELAXING THE FIVE-YEAR TIME LIMIT
BECAUSE MR. RIVERA SUFFERED AN
INJUSTICE.
C. THE TRIAL COURT ERRED BY NOT
CONSIDERING THE RECENT CASE OF STATE V.
PATEL WHEN DECIDING WHETHER TO RELAX
THE TIME LIMIT.
A-0321-19T4
3
POINT II
THE TRIAL COURT ERRED BY FINDING THAT MR.
RIVERA DID NOT SHOW A PRIMA FACIE CASE THAT
HIS COUNSEL WAS INEFFECTIVE.
A. THE TRIAL COURT ERRED BY NOT FINDING
THAT MR. RIVERA'S COUNSEL WAS
INEFFECTIVE BY FAILING TO PROPERLY
INFORM HIM ABOUT THE IMMIGRATION
CONSEQUENCES OF HIS PLEA.
B. MR. RIVERA WOULD HAVE REJECTED THE
PLEA IF HE HAD KNOWN ABOUT THE
IMMIGRATION CONSEQUENCES.
C. MR. MONTEIRO WAS INEFFECTIVE BECAUSE
HE FAILED TO ADVISE MR. RIVERA ABOUT THE
PRETRIAL INTERVENTION PROGRAM.
POINT III
THE TRIAL COURT ERRED BY DENYING MR. RIVERA
AN EVIDENTIARY HEARING.
POINT IV
THE TRIAL COURT ERRED BY DENYING MR.
RIVERA'S REQUEST TO WITHDRAW HIS GUILTY
PLEA.
I.
Because we affirm for the reasons explained in Judge Borkowski's
thoughtful and thorough written opinion, we need not re-address defendant's
A-0321-19T4
4
arguments at length. We first consider whether defendant's petition is time -
barred.
A petitioner seeking PCR must file a petition within five years of the
judgment of conviction—that is, within five years of the date of the sentence.
R. 3:22-12(a)(1); State v. Dugan, 289 N.J. Super. 15, 19 (App. Div. 1996). A
first PCR petition filed outside of this time limit may be considered only where
the defendant (1) alleges sufficient facts to support a claim of excusable neglect,
and (2) demonstrates a reasonable probability that if said factual allegations
were true, enforcement of the time bar would result in a fundamental injustice.
R. 3:22-12(a)(1)(A).
Judge Borkowski made detailed findings with respect to the timeline of
events. She highlighted that defendant acknowledged in his testimony that he
was aware of his ability to file a PCR petition in 2014. Judge Borkowski found
that he nonetheless continued to sit on his rights for another four -and-one-half
years. Although defendant offered reasons for some portions of the fourteen-
year delay between the imposition of sentence and filing a petition for PCR, he
failed to explain significant periods of inactivity. For example, once he
discovered his initial PCR counsel failed to properly file a petition in 2017,
A-0321-19T4
5
another year-and-one-half passed before the petition was filed by a different
attorney.
Judge Borkowski further found that the State was incurably prejudiced by
the protracted delay in filing the PCR petition because the prosecutor had
destroyed its case file in accordance with a ten-year records retention policy.
We agree with Judge Borkowski's observation that the filing deadline prescribed
in Rule 3:22-12 serves to prevent a defendant from claiming constitutional errors
after the State has lost the ability to respond.
We add that Judge Borkowski properly rejected defendant's argument that
the New Jersey Supreme Court's recent decision in State v. Patel, 232 N.J. 424
(2019), authorizes a relaxation of the five-year time limit for filing a PCR
petition. That case is inapposite. The Court in Patel held that a municipal court
defendant who was not advised of his right to counsel before accepting a plea
offer was presumptively prejudiced, and that such prejudice sufficed to warrant
relief under State v. Laurick, 120 N.J. 1 (1990), even after the five-year time
limit had expired pursuant to Rule 7:10-2. 232 N.J. at 448–49. The Patel Court
explicitly limited its holding to Laurick applications under Rule 7:10-2(b)(2),
and noted that the deadline for filing other post-conviction relief petitions under
Rule 3:22-12 was not affected. Id. at 447.
A-0321-19T4
6
II.
Judge Borkowski ruled that even if defendant's petition were not time-
barred, he failed to establish a prima facie case of ineffective assistance to
warrant an evidentiary hearing. We agree.
PCR serves the same function as a federal writ of habeas corpus. State v.
Preciose, 129 N.J. 451, 459 (1992). Both the Sixth Amendment of the United
States Constitution and Article 1, paragraph 10 of the State Constitution
guarantee the right to effective assistance of counsel at all stages of criminal
proceedings. Strickland, 466 U.S. at 686 (1984) (citing McMann v. Richardson,
397 U.S. 759, 771 n.14 (1970)); State v. Fritz, 105 N.J. 42, 58 (1987). In Fritz,
our Supreme Court adopted the two-part test articulated in Strickland in
determining whether a defendant has received ineffective assistance of counsel.
Fritz, 105 N.J. at 58. Under Strickland, in order to demonstrate ineffectiveness
of counsel, "[f]irst, the defendant must show that counsel's performance was
deficient . . . . Second, the defendant must show that the deficient performance
prejudiced the defense." Strickland, 466 U.S. at 687.
In Padilla v. Kentucky, the United States Supreme Court held that a
petitioner may meet the first Strickland prong by showing that his attorney made
misrepresentations regarding potential immigration consequences flowing from
A-0321-19T4
7
a guilty plea, whether made through commission or omission. 559 U.S. at 369,
374. In State v. Gaitan, 209 N.J. 339 (2012), our Supreme Court held that "in
applying both federal and state law, . . . Padilla created a 'new rule' and, for that
reason, the level of attorney competence has no application to guilty pleas
entered prior to March 31, 2010, the day the decision in Padilla was announced."
See also State v. Barros, 425 N.J. Super. 329, 333 (App. Div. 2012) (denying
PCR relief to a petitioner seeking relief from his 2008 guilty plea, claiming
ineffective assistance of counsel pursuant to the new rule announced in Padilla).
In this instance, defendant entered his guilty plea seven years before Padilla was
decided.
The second prong of the Strickland test requires the defendant to show
"that counsel's errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable." Strickland, 466 U.S. at 687. Counsel's errors
must create a "reasonable probability" that the outcome of the proceedings
would have been different than if counsel had not made the errors. Id. at 694.
This assessment is necessarily fact-specific to the context in which the
alleged errors occurred. For example, when, as in this case, a defendant seeks
"[t]o set aside a guilty plea based on ineffective assistance of counsel, a
defendant must show . . . 'that there is a reasonable probability that, but for
A-0321-19T4
8
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) (alterations in original)).
Short of obtaining immediate relief, a defendant may prove that an
evidentiary hearing is warranted to develop the factual record in connection with
an ineffective assistance claim. Preciose, 129 N.J. at 462–63. The PCR court
should grant an evidentiary hearing only when (1) a defendant is able to prove
a prima facie case of ineffective assistance of counsel, (2) there are material
issues of disputed fact that must be resolved with evidence outside of the record,
and (3) the hearing is necessary to resolve the claims for relief. Id. at 462; R.
3:22-10(b). To meet the burden of proving a prima facie case, a defendant must
show a reasonable likelihood of success under the Strickland test. Id. at 463.
Judge Borkowski highlighted that defendant has not certified as to his
innocence. Furthermore, the record supports her conclusion that defendant
offered no probative evidence except post-hoc statements and bald assertions in
support of his claim that his interest in avoiding deportation was the
determinative factor in accepting the plea agreement and pleading guilty to the
reduced charge. We thus agree with Judge Borkowski's conclusion that
defendant failed to demonstrate that it would have been rational for him to reject
A-0321-19T4
9
the highly favorable plea offer tendered by the State. That plea bargain resulted
in the dismissal of a second-degree crime that carries a presumption of
imprisonment under N.J.S.A. 2C:44-1(d). As defendant has yet to suggest a
viable trial strategy, we see no reason to disturb the PCR court's conclusion that
it would have been irrational for defendant to reject the highly favorable plea
offer that allowed him to avoid the virtual certainty of a state prison sentence.
Even were we to accept that defendant's principal concern was to avoid
deportation, rejecting the plea offer would not have advanced that goal, given
the lack of a viable trial defense and the likelihood of a conviction by jury
verdict. Accordingly, we see no reason to disturb Judge Borkowski's finding
that petitioner failed to show a reasonable possibility that he would have rejected
the plea offer and elected to go to trial, but for his trial counsel's alleged error.
Nunez-Valdez, 200 N.J. at 138–139.
Similarly, we agree with Judge Borkowski that counsel was not ineffective
for failing to apply for pretrial intervention (PTI). Judge Borkowski found it to
be "mere speculation that the petitioner would have been accepted into PTI[,]"
especially given that defendant was charged with a second-degree crime that
invokes a presumption against admission to PTI. See State v. Nwobu, 139 N.J.
236, 252 (1995) (noting that an applicant facing a presumption against PTI must
A-0321-19T4
10
demonstrate “compelling reasons” or "something extraordinary or unusual," and
not merely that he "is a first time offender and has admitted or accepted
responsibility for the crime").
To the extent we have not addressed them, any additional arguments
raised by defendant lack sufficient merit to warrant discussion in this opinion.
R. 2:11-3(e)(2).
Affirmed.
A-0321-19T4
11