SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-2913- 22 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. ALEXEIS BEJERANO, Defendant-Appellant.

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Submitted June 3, 2024

– Decided Ju ly 5, 202 4 Before Judges Berdote Byrne and Bishop-Thompson. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05

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- 0225. Michael J. Pastacaldi LLC, attorneys for appellant (Michael J. Pastacaldi, on the briefs ). Esther Suarez, Hudson County Prosecutor, attorney f or respondent (Patrick F. Galdieri, II, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 t he internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 2913

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Defendant appeals from an order of May 12 , 2023 den ying his petition for post -conviction relief ( PCR ) without an evidentiary hearing , after the trial judge ruled his petition was procedurally time-barred and issued an order denying his motion to withdraw his guilty plea. We affirm for the reasons expressed by the Honorable Maureen B. Mantineo in her well-reasoned oral opinion. We add the following comments.
I. Defendant was indicted in February 2005 on one count of first-degree distribution of a controlled dangerous substance (C DS), one count of seconddegree distribution of a CDS, two counts of third-d egree distribution of a CDS within 1000 feet of school property, and one count of third-degree unlawful possession of a loaded shotgun. On June 8, 2005, he pleaded guilty to firstdegree possession of a CDS, and the State recommend ed a ten-year prison term with a twenty-seven-month parole disqualifier. Defendant was sentenced consistent with the plea ag reement on October 13, 2005. He claims he reviewed question seventeen on the plea form pertaining

to the immigration consequences of his plea, but his tria l counsel told him he had nothing to be concerned about because the Unite d States does not deport to3 A- 2913

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Cuba. He does not dispute he was questioned by the trial judge at the plea hearing and stated he understood the deportation co nsequences. After serving twenty-seven months, defendant was tu rned over to Immigration and Customs Enforcement (ICE), which he ld him for 180 days before releasing him on ICE supervision. In December 202 2, he filed a petition for PCR, claiming ineffective assistance of counsel for failing to adequately advise him of immigration consequences and seeking to withdraw his guilty plea. The PCR judge denied both motions on May 12 , 2023. This appeal followed.
II. In reviewing a PCR petition, we afford deference to the PCR court's findings of fact, but our interpretation of the law is de novo. State v. Nash, 212 N.J. 518, 540-41 (2013). Pursuant to Strickland v. Washington , 466 U.S. 668 (1984), which our Supreme Court adopted in State v. Fritz, 105 N.J. 42 , 67 (1987), a defendant is entitled to PCR for ineffect ive assistance of counsel if he proves "[defendant's] counsel's performance was def icient," and counsel's "deficient performance prejudiced the defense." Id . at 52 (quoting Strickland , 466 U.S. at 687). In addition, whe re a guilty plea is involved, the defendant must prove "a reasonable probability [exists] that, but for counsel's errors, [the4 A- 2913

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defendant] would not have [pleaded] guilty and would have in sisted on going to trial." State v. Nuñez-Valdéz, 200 N.J. 129, 139 ( 2009) (second alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)). As Judge Mantineo correctly found, defendant's PCR petition is timebarred pursuant to Rule 3:22 -12(a)(1)(A). The rule requires petitions for PCR to be brought within five years of the date of the judgment of conviction unless "it alleges facts showing that the delay beyond sai d time was due to defendant's excusable neglect and that there is a reasonable pr obability that if the defendant's factual assertions were found to be true enforcemen t of the time bar would result in a fundamental injustice

. . . ." R. 3:22 -12(a)(1)(A). PCR is not a substitute for direct appeal, and its various procedural bars work to further the public policy of promoting finality in judicial proceeding s. State v. Peoples, 446 N.J. Super. 245, 254 (App. Div. 2016) (quoting State v. Echols, 199 N.J. 344, 357 (2009)). The five-year time bar "should be relaxed only 'und er exceptional circumstances' because '[a]s time passes, justice b ecomes more elusive and the necessity for preserving finality and certainty of judgmen ts increases.'" State v. Goodwin , 173 N.J. 583, 594 (2002) (alteration in original) (quoting State v. Afanador, 151 N.J. 41, 52 (1997)). "[T]he extent and cause of the delay, the prejudice to the State, and the importance of the p etitioner's claim" should be5 A- 2913

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considered in analyzing whether injustice would occur suff icient to loosen Rule
3:22 -12(a)(1)(A)'s time bar. Goodwin , 173 N.J. at 594 (quoting Afanador, 151 N.J. at 52). Defendant was required to file his PCR petition by October 1 3, 2010, five years from the date of the judgment of conviction. Defendant filed his PCR petition on December 23, 2022, over twelve years after the dea dline expired. Despite this, he argues his neglect in filing the p etition was excusable and the interests of justice permit delay due to prior coun sel's failure to advise him of the immigration repercussions of his plea. As aptly noted by Judge Mantineo, defendant has not demonstrated excusable neglect exists or that fundamental injust ice would result if the time bar is enforced. There are no exceptional circumstances p resent to justify evading the strong policy favoring finality and cer tainty in criminal judgments.
See Goodwin , 173 N.J. at 594. Defendant concedes he was made aware of the immigration consequences of his plea by the trial judge

. Furthermore, his claim that he was not advised the conviction would preven t him from becoming a United States citizen until 2022 cannot establish t he compelling extenuating circumstances necessary to expand the time bar.6 A- 2913

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Defendant never filed a direct appeal. His guilty plea was entered five years before Padilla v. Kentucky , 559 U.S. 356 , 374 (2010) that recognized a pleading defendant's right to be apprised of immigr ation consequences, which has only prospective effect. State v. Antuna, 446 N.J. Super. 595, 600 (App. Div. 2016). Moreover, he concedes he was told of deportation co nsequences and represented he had consulted with several immig ration attorneys over the course of the intervening years, but did not file t he PCR until 2022. To the extent we have not addressed defendant's re maining arguments on appeal, we find they lack sufficient merit to warra nt discussion in a written opinion. R. 2:11 -3(e)(2). Affirmed.