Date: 04-12-2016

Case Style: STATE OF NEW JERSEY VS. MARAT GARBON

Case Number: A-3263-13T3

Judge: Francis J. Vernoia

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Plaintiff's Attorney: Mary Eva Colalillo, Jason Magid

Defendant's Attorney: Joseph E. Krakora, Steven J. Sloan

Description: To establish a prima facie case of ineffective assistance
of counsel, a defendant must demonstrate a reasonable likelihood
of succeeding under the test set forth in Strickland v.
Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed.
2d 674, 698 (1984), and adopted by our Supreme Court in State v.
Fritz, 105 N.J. 42, 58 (1987). Under the two-pronged
Strickland/Fritz test, the defendant must demonstrate his
counsel's performance was deficient and there exists "a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L.
Ed. 2d at 698.
If a claim of ineffective assistance follows a guilty plea,
as here, the defendant must prove counsel's constitutionally
deficient representation, and also demonstrate "a reasonable
A-3263-13T3 6
probability that, but for counsel's errors, he would not have
pleaded guilty and would have insisted on going to trial." Hill
v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d
203, 210 (1985).
Defendant argues that excusable neglect delayed the filing
of his PCR petition because he was unaware of the immigration
consequences of his guilty plea until receiving correspondence
from INS.
Rule 3:22-12(a)(l) provides that the five-year time bar may
be relaxed if defendant establishes that the delay "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."
Excusable neglect requires more than simply providing a
plausible explanation for a failure to file a timely PCR
petition. To determine whether a defendant has asserted a
sufficient basis for relaxing the Rule's time restraints, courts
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. Afanador, 151 N.J. 41, 52
(1997) (quoting State v. Mitchell, 126 N.J. 565, 580 (1992)).
A-3263-13T3 7
To succeed on a claim of fundamental injustice, a defendant
must show that the error "played a role in the determination of
guilt." State v. Nash, 212 N.J. 518, 547 (2013) (quoting
Mitchell, supra, 126 N.J. at 587). "Absent compelling,
extenuating circumstances, the burden of justifying a petition
filed after the five-year period will increase with the extent
of the delay." Mitchell, supra, 126 N.J. at 580.
Defendant's claim that he was unaware of potential
immigration consequences of his guilty plea until he was
contacted by ICE and INS is contradicted by record evidence.
The plea form signed by defendant contained the question: "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?"
A "yes" response is circled on the form. During defendant's
allocution, the following exchange took place:
[THE COURT]: Okay, before you, sir, is the plea form together with the Megan's Law addendum. Did you have the opportunity to read and review each and every page?
[DEFENDANT]: Yes, I did.
[THE COURT]: Do you understand it, sir?
[DEFENDANT]: Yes, I do.
[THE COURT]: Do you have any questions?
[DEFENDANT]: No, I don't.
. . . .
A-3263-13T3 8
[THE COURT]: Did you review it with your attorney?
[DEFENDANT]: Yes, I did.
. . . .
[THE COURT]: Do you understand, sir, that you don't have to plead guilty, that you have a right to a jury trial at which time the state has to prove your guilt beyond a reasonable doubt?
[DEFENDANT]: Yes, I do.
Defendant argues that the question regarding immigration
consequences on the plea form was not adequately explained to
him. However, defendant's plea counsel provided a certification
indicating, "as was customary in practice among criminal defense
attorneys, I may have circled the question pertaining to
possible immigration consequences on the plea form 'Yes,' but
would have only read the question in passing to [defendant]."
Counsel further certified that he "would have advised him that
it was very unlikely that he would have any problems with
immigration, since this was a probationary sentence and he had
no adult criminal record."
Defendant claims that, because the immigration consequences
were understated, he was unaware of the very real possibility of
deportation and that the notification letter he received from
A-3263-13T3 9
INS and his detention by ICE constitute a new factual predicate.
We are not persuaded by this argument.
We note that defendant has not asserted a claim of
innocence and, therefore, his "knowledge of the risk of
deportation did not affect the truth-finding function of the
court when it accepted his plea." State v. Brewster, 429 N.J.
Super. 387, 401 (App. Div. 2013). Thus, defendant has not shown
that alleged inadequate immigration advice "played a role in the
determination of guilt." Nash, supra, 212 N.J. at 547 (quoting
Mitchell, supra, 126 N.J. at 587).
In addition, as in Brewster, defendant had "both the
opportunity and the incentive to learn whether he might be
deported before the time of his arrest by federal immigration
authorities." 429 N.J. Super. at 401. Defendant was aware that
he was not a United States citizen, and even if plea counsel had
only gone over the deportation question on the plea form "in
passing," he was placed on notice of the possibility of the
immigration consequences of his plea.
There is no indication that plea counsel provided false or
misleading information. See State v. Nuñez-Valdéz, 200 N.J. 129,
140-43 (2009) (holding that counsel is ineffective by providing
false or misleading advice regarding the immigration
consequences of a defendant's plea). Therefore, defendant has
A-3263-13T3 10
failed to meet his burden of showing that his failure to file
his PCR petition within five years of his conviction was due to
excusable neglect.
We also reject defendant's argument that he established a
prima facie showing of ineffective assistance and was entitled
to an evidentiary hearing. Our review of a PCR court's
determination to proceed without an evidentiary hearing is
guided by an abuse-of-discretion standard. R. 3:22-10; Brewster,
supra, 429 N.J. Super. at 401. A defendant is:
entitled to an evidentiary hearing only upon [1] the establishment of a prima facie case in support of post-conviction relief, [2] a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and [3] a determination that an evidentiary hearing is necessary to resolve the claims for relief.
[R. 3:22-10(b).]

In making such determinations, courts view the facts in a
light most favorable to the defendant. State v. Preciose, 129
N.J. 451, 462-63 (1992). A hearing is required only where a
defendant has shown a reasonable likelihood of success on the
merits, and the facts on which a defendant relies are not
already of record. State v. Porter, 216 N.J. 343, 355 (2013).
We find no abuse of discretion by the PCR judge in denying
defendant's petition without an evidentiary hearing because
A-3263-13T3 11
defendant has not presented a meritorious ineffective assistance
of counsel claim. Plea counsel's observation that defendant's
deportation was "unlikely" might have been optimistic, but it
did not constitute incorrect or deficient legal advice. See
Brewster, supra, 429 N.J. Super. at 397. In addition, even if
defendant had demonstrated that his counsel's performance was
deficient, he did not establish that, but for his counsel's
alleged errors, he would have rejected the plea offer and
proceeded to trial. Hill, supra, 474 U.S. at 59, 106 S. Ct. at
370, 88 L. Ed. 2d at 210.
We are satisfied that an evidentiary hearing would not have
aided the court's analysis of whether defendant's PCR petition
should have been granted, and perceive no abuse of discretion in
denying an evidentiary hearing.

Outcome: We find defendant's remaining arguments lack sufficient merit to warrant discussion in our opinion. Affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: