SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0430-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ILYA BOBROV,

Defendant-Appellant.

_____________________________

Submitted March 18, 2020 – Decided June 2, 2020

Before Judges Whipple and Mawla.

On appeal from the Superior Court of New Jersey, Law 

Division, Morris County, Indictment No. 04-06-0629.

Terry Webb, attorney for appellant.

Fredric M. Knapp, Morris County Prosecutor, attorney 

for respondent (Tiffany M. Russo, Assistant 

Prosecutor, on the brief).

PER CURIAM

Defendant Ilya Bobrov appeals the August 17, 2018 denial of his postconviction relief (PCR) petition without an evidentiary hearing. We affirm.

NOT FOR PUBLICATION WITHOUT THE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.
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Defendant raises the following issues on appeal:

POINT I: PRIOR COUNSEL RENDERED 

INEFFECTIVE ASSISTANCE OF COUNSEL BY 

FAILING TO ADVISE [DEFENDANT] OF THE 

POTENTIAL IMMIGRATION CONSEQUENCES OF 

ENTERING A GUILTY PLEA. 

POINT II: [DEFENDANT]'S RIGHTS TO FAIR 

TRIAL UNDER THE UNITED STATES AND NEW 

JERSEY CONSTITUTION WAS VIOLATED BY 

THE STATE'S FAILURE TO COMPLY WITH THE 

VIENNA CONVENTION OF CONSULAR 

RELATIONS. 

POINT III: THERE WAS NO FACTUAL BASIS TO 

SUPPORT [DEFENDANT]'S PLEA; THUS 

[DEFENDANT]'S SENTENCE WAS ILLEGAL AND 

MAY BE CORRECTED AT ANY TIME. 

Defendant is a citizen of Russia who was granted lawful permanent

resident status of the United States in August 1999, when he was sixteen years 

old. In May 2003, defendant was arrested in Union County; it is not apparent 

from the record what the original charges were, but on November 20, 2003, he 

was sentenced to one year of probation and a six-month suspension of his 

driver's license for a disorderly persons (DP) offense related to drugs. 

On November 21, 2003, defendant was again arrested and charged with 

third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1), for which he was 

indicted in Morris County. This offense is the subject of the PCR petition. On 
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July 15, 2004, defendant initially entered a not-guilty plea with his counsel from 

the Office of the Public Defender and applied for Pretrial Intervention (PTI) the 

same day. 

On July 24, 2004, defendant was once again arrested. This time, he was

charged with third-degree resisting arrest, N.J.S.A. 2C:29-2(a), which was later 

downgraded to fourth-degree obstruction by flight, N.J.S.A. 2C:29-1(a), and 

leaving the scene of an accident, N.J.S.A.39:4-129(a), among other charges that 

were ultimately dropped. 

It is not clear from the record what happened with defendant's PTI 

application. However, on September 16, 2004, with a different attorney, 

defendant pled guilty to the November 2003 third-degree heroin possession 

charge, for which he had been indicted, as well as the July 2004 fourth-degree 

obstruction by flight and leaving the scene of an accident charges, for which he 

waived indictment. 

Defendant's exposure was up to five years for the heroin possession 

charge, eighteen months for obstruction by flight charge, and 180 days for 

leaving the scene of an accident. The State recommended a probationary 

sentence of one to five years with the possibility of 180 days in the Morris 

County jail, dependent on a substance abuse evaluation, proof of drug
4

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counselling, and drug treatment. Defendant testified to the plea judge that his 

attorney reviewed the sentencing exposure with him, he was entering the plea 

voluntarily, and he understood he was giving up the right to go to trial and to 

confront witnesses. Defendant also stated his attorney went over every question 

on the plea form with him, and that he signed and initialed each page. Question 

Seventeen on the plea form, which asks "[d]o you understand that if you are not 

a United States citizen or national, you may be deported by virtue of your plea 

of guilty," was circled "[y]es."

Defendant also testified that he was aware he would have a criminal 

record, and stated he was on probation in Union County for his first offense. 

When the plea judge asked defense counsel if there was anything he would like 

to follow up on, defense counsel responded, "I would like the court . . . if you 

would, to review [Question Seventeen] about the citizenship." The plea judge 

read over Question Seventeen and asked defendant if he was a United States 

citizen, to which defendant replied that he had a green card and planned to get 

his citizenship. Defendant indicated he thought he might have a problem getting 

his citizenship because of his arrest in Union County, and defense counsel stated 

he explained to defendant that the current charges to which he was pleading 

guilty "could result in more problems." The following exchange then took place:
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[THE COURT]: And you do understand that because 

of your status in this country, you may be deported?

[DEFENDANT]: I understand. Is it possible or it's 

likely?

[THE COURT]: It's possible.

Defense counsel then questioned defendant about the factual basis for the plea. 

For the heroin possession charge, the plea judge sentenced defendant to 

three years of probation, with the condition of 180 days in the Morris County 

jail, an inpatient drug treatment program, and a six-month suspension of his 

driver's license. For the fourth-degree obstruction accusation, defendant was 

sentenced to three years of probation to run concurrent, and for leaving the scene 

of an accident, defendant was sentenced to forty-five days in the Morris County 

jail to run concurrent with the 180 days, and a one-year suspension of his driver's 

license to run consecutive with the six-month suspension. Should defendant be 

admitted to an inpatient drug treatment facility, his jail sentence would be time 

served at that time. 

Over eight years later, in April 2013, defendant arrived at John F. 

Kennedy International Airport after a trip with his family to Russia and sought 

re-admission to the United States as a lawful permanent resident. However, 

defendant was charged as subject to removal from the United States based on 
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his third-degree heroin possession conviction under N.J.S.A. 2C:35-10(a)(1) 

"pursuant to the following provisions of law":

Section 212(a)(2)(A)(i)(II) of the Immigration and 

Nationality Act, as amended, in that you are an alien 

who has been convicted of, or who admits having 

committed, or who admits committing acts which 

constitute the essential elements of (or a conspiracy or 

attempt to violate) any law or regulation of a [s]tate, the 

United States, or a foreign country relating to a 

controlled substances (as defined in Section 102 of the 

Controlled Substances Act (21 U.S.C. 802)).

The April 22, 2013 notice to appear ordered defendant to appear before 

an immigration judge of the United States Department of Justice "[a]t a place 

and time to be determined on a date to be set at a time to be set to show why you 

should not be removed from the United States based on the charge(s) set forth 

above." 

Almost five years later, on April 19, 2018, defendant filed a PCR petition

through counsel asserting he was given incorrect information when he was told 

deportation was a "possibility," which rendered defendant's guilty plea neither

knowing nor voluntary and constituted ineffective assistance of counsel under 

Nuñez-Valdéz.

1 At the hearing, PCR counsel argued the advice that deportation 

was possible "wasn't true" because deportation "was mandatory . . . and we know 

 

1

 State v. Nuñez-Valdéz, 200 N.J. 129 (2009).
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that because defendant got paperwork now that because of this plea he is going 

to be deported back to a country where he knows no one." Defendant asserted 

he never would have taken the plea had he known deportation was mandatory, 

as his whole life was in the United States and did not have any life or ties left in 

Russia. 

Defendant also argued he had defenses never asserted by his original 

counsel, as well as that there was no basis for defendant's rejection from PTI, 

and that plea counsel should have fought for it. Defendant asked the court to 

vacate his guilty plea.

The PCR judge denied the petition because there were no grounds on 

which he could vacate the guilty plea. The judge noted that the plea judge's voir 

dire was "thorough" and that there was a discussion during the plea hearing 

about how the plea and the prior adjudication from Union County might cause 

defendant a problem getting his citizenship. The PCR judge noted defendant 

was specifically asked whether he understood he may be deported and answered 

in the affirmative. 

As for defendant's question during the plea hearing asking whether it was 

possible or likely that he would be deported, and the answer that it was 

"possible," the PCR judge stated: 
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[W]hat has happened in my understanding is that I will 

characterize it as a result of changing attitudes and 

policies regarding immigration, deportation, the status 

of non-citizens in the country. We have come from a 

situation where in 2004 what was described as possible 

is now a very real threat. And has moved from I would 

say possible to very probable. 

He noted the answer that deportation was "possible," when considered in 2018 

versus in 2004 at the time of the plea hearing, "a few things . . . have happened 

since then, you will be facing the high probability of being deported." He 

pointed out that plea counsel and the plea judge 

could not have known that. That would require an 

understanding of what I'll call a change in political and 

enforcement culture [regarding] immigration status 

. . . . And so for that reason it's in my view not easy to 

conclude the attorney at that time and the court in 

making sure that a plea is being done knowingly were 

off the mark in any substantial way. 

The judge stated that describing deportation as "possible" at the time of the plea

was correct, noting that defendant "has been allowed to remain substantially 

unmolested in the country for a decade and a half . . . almost and has a business," 

and that the deportation defendant currently faced boiled down to a change in 

the "attitudes, approaches, and actions regarding immigration and deportation." 

Although the PCR judge sympathized with defendant's plight, noting he 

had moved on to live a productive life from the time of his criminal charges, 
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other than some subsequent DP charges for marijuana-related activities, the PCR 

judge did not find that defendant's removal from what had become his home to 

a foreign and strange place was a "fundamental injustice" in the sense that an 

error or violation played a role in the determination of defendant's guilt in order

to overcome the five-year time bar on PCR proceedings. 

The PCR judge stated he also could not find that the language of the voir 

dire and discussion at the time defendant asked whether it was possible or likely 

that he would be deported should he plead guilty was "false," even though it was 

ambiguous. Rather, the PCR judge found it was "in a sense true" and it was 

"only in retrospect that it turned out to be I don't even know if it can be said 

misleading because possible means it might be a consequence." 

Although noting defendant's life was in the United States and he appeared 

to be doing well as a small business owner, the PCR judge was unable to find a 

legal basis to vacate the guilty plea, and stated that even though he was not 

happy with the result of defendant's deportation, he could not put himself in the 

place of the immigration authorities. The PCR judge hoped that the immigration 

authorities would consider the remoteness of the conviction, and defendant's 

"reasonable level of rehabilitation and a turn to competent living." 

This appeal followed.
10 A-0430-18T4

Where no evidentiary hearing was conducted in the denial of a PCR 

petition, "we may review the factual inferences the court has drawn from the 

documentary record de novo." State v. Blake, 444 N.J. Super. 285, 294 (App. 

Div. 2016). We also review de novo the trial court's conclusions of law. Ibid. 

PCR is "New Jersey's analogue to the federal writ of habeas corpus." State 

v. Cummings, 321 N.J. Super. 154, 164 (App. Div. 1999) (citing State v. 

Afanador, 151 N.J. 41, 49 (1997); State v. Preciose, 129 N.J. 451, 459 (1992)). 

A PCR claim "must be established by a preponderance of the credible evidence." 

State v. McQuaid, 147 N.J. 464, 483 (1997) (citing Preciose, 129 N.J. at 459). 

PCR "is cognizable if based upon . . . [s]ubstantial denial in the conviction 

proceedings of defendant's rights under the Constitution of the United States or 

the Constitution or laws of the State of New Jersey." R. 3:22-2(a). The Sixth 

Amendment of the United States Constitution and Article I, paragraph 10 of the 

New Jersey Constitution both guarantee effective assistance of legal defense counsel 

to a person accused of a crime. See State v. Porter, 216 N.J. 343, 352 (2013) (citing 

Strickland v. Washington, 466 U.S. 668, 685-86 (1984)). 

Generally, a defendant must seek relief through a direct appeal under Rule

3:22-3 and "may not use [PCR] to assert a new claim that could have been raised 

on direct appeal." McQuaid, 147 N.J. at 483 (citing R. 3:22-4). However, a 
11 A-0430-18T4

defendant may use PCR "to challenge . . . [a] final judgment of conviction which 

could not have been raised on direct appeal." Id. at 482-83 (citing Preciose, 129 

N.J. at 459). "[P]etitioners are rarely barred from raising ineffective-assistanceof-counsel claims on [PCR]" under New Jersey case law, Preciose, 129 N.J. at 459-

60, and "[o]ur courts have expressed a general policy against entertaining 

ineffective-assistance-of-counsel claims on direct appeal because such claims 

involve allegations and evidence that lie outside the trial record," id. at 460. 

Defendant argues he did not enter his plea knowingly and intelligently, as 

he contends plea counsel grossly misrepresented that deportation was merely 

possible and not likely, which he asserts was incorrect as the statute mandates 

removal for the charge to which defendant pled guilty. Defendant asserts he 

never would have pled guilty had he known it was likely he would be deported. 

In determining whether a defendant has established ineffective assistance of 

counsel, the claim must be evaluated under the two-prong Strickland test, where "a 

reviewing court must determine: (1) whether counsel's performance 'fell below an 

objective standard of reasonableness,' . . . and if so, (2) whether there exists a 

'reasonable probability that, but for counsel's unprofessional error, the result of the 

proceeding would have been different.'" State v. Castagna, 187 N.J. 293, 313-14 

(2006) (quoting Strickland, 466 U.S. at 688, 694). See also State v. Fritz, 105 N.J. 
12 A-0430-18T4

42, 58 (1987) (adopting the Strickland test in New Jersey). Where a claim of 

ineffective assistance of counsel follows a guilty plea, the defendant must prove 

counsel's deficient representation and "a reasonable probability that, but for 

counsel's errors, he would not have pleaded guilty and would have insisted on 

going to trial." State v. Brewster, 429 N.J. Super. 387, 392 (App. Div. 2013) 

(quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). A defendant may satisfy the 

first prong of the Strickland test "by a showing that counsel's acts or omissions 

fell outside the wide range of professionally competent assistance considered in 

light of all the circumstances of the case." State v. Allegro, 193 N.J. 352, 366

(2008) (quoting Castagna, 187 N.J. at 314). 

Plea counsel is required to provide a non-citizen defendant sufficient 

information regarding immigration consequences of a guilty plea. See State v. 

Nuñez-Valdéz, 200 N.J. 129, 140, 143 (2009). "[W]rong or inaccurate advice 

from counsel about the immigration consequences, and specifically deportation, 

that would result from entry of a guilty plea, present[s] ineffective assistance of 

counsel." State v. Gaitan, 209 N.J. 339, 361 (2012). 

Padilla, decided in 2010, six years after defendant here pled to his 

offenses, holds that counsel has an affirmative duty to correctly advise a 

defendant of the risk of deportation where the terms of the relevant immigration 
13 A-0430-18T4

statute are "succinct, clear, and explicit in defining the removal consequence" 

of a plea; thus, where deportation for an offense is presumptively mandatory, 

counsel must specifically advise defendant of that fact. Gaitan, 209 N.J. at 373; 

Padilla v. Kentucky, 559 U.S. 356, 368-69 (2010). However, the New Jersey 

Supreme Court held in Gaitan that Padilla is not retroactive, but rather that 

Nuñez-Valdéz still governs pre-Padilla cases. Gaitan, 209 N.J. at 373-74. 

Nuñez-Valdéz holds that there may be ineffective assistance of counsel 

where advice given a defendant regarding the removal consequences of a guilty 

plea is false, or inaccurate and affirmatively misleading, such as where counsel 

tells a defendant there will be no immigration consequences when pleading to 

an offense that is indeed presumptively deportable. Gaitan, 209 N.J. at 381; 

Nuñez-Valdéz, 200 N.J. at 140-43. However, in pre-Padilla cases, where a 

defendant is not given affirmatively misleading advice, but rather there is an 

absence of advice, such as where there is evidence that a defendant did review 

Question Seventeen on the plea form and was told there "may" be immigration 

consequences to his plea, even for an offense that was presumptively deportable, 

that advice is sufficient. Gaitan, 209 N.J. at 347, 374-76, 378-79, 381. 

In Brewster, the Appellate Division found defendant did not show 

ineffective assistance of counsel where he circled Question Seventeen of the 
14 A-0430-18T4

plea form that informed him he "may" be deported, which was "not unreasonable 

advice or outside the norms of the profession," where at the time, in 1998,

defense counsel could not have reasonably predicted 

the certainty or even likelihood of defendant's 

deportation. In fact, it might have been incorrect at that 

time for defense counsel to have advised defendant he 

would surely, or likely, be deported and thus potentially 

have caused defendant to forego a favorable plea offer 

and to accept the likelihood of a longer term in state 

prison by conviction at trial. A longer prison sentence 

would not have saved defendant from deportation. 

[429 N.J. Super. at 397-98.] 

The Brewster court noted that federal immigration laws were still evolving 

and deportation was not always enforced at the time of the defendant's plea, as 

was evidenced by the fact that the defendant "remained undisturbed by federal 

immigration officials for almost twelve years" after his plea. Id. at 396. 

Here, one of the charges to which defendant pled guilty was N.J.S.A. 

2C:35-10(a)(1), third-degree possession of heroin. Under 8 U.S.C. § 

1227(a)(2)(B)(i), a non-citizen "who at any time after admission has been 

convicted of a violation of . . . any law or regulation of a [s]tate, the United 

States, or a foreign country relating to a controlled substance . . . other than a 
15 A-0430-18T4

single offense involving possession for one's own use of [thirty] grams or less 

of marijuana, is deportable." (emphasis added).2 

However, even though the offense to which defendant pled guilty was 

mandatorily deportable, he pled in 2004, well before the 2010 decision in 

Padilla, and thus the information he received that deportation was "possible" 

was sufficient under Gaitan, Nuñez-Valdéz, and Brewster. Like Brewster, the 

fact that defendant was able to go without deportation proceedings eight and a 

half years after his plea, and had still not been deported at the time of his PCR 

hearing around thirteen years after his plea, is evidence he was correctly 

informed that deportation was "possible."

Further, defendant's claims are time-barred, as under Rule 3:22-12, a first 

petition for PCR may not be filed more than five years after the date of entry of 

the judgment of conviction being challenged unless "it alleges facts showing 

that the delay beyond said time 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 . . . ." R. 3:22-12(a)(1)(A). The purpose of the PCR five-year time bar 

 

2

 This offense also renders a non-citizen inadmissible under 8 U.S.C. § 

1182(a)(2)(A)(i)(II).
16 A-0430-18T4

"is to encourage defendants reasonably believing they have grounds for [PCR] 

to bring their claims swiftly and discourages them from sitting on their rights 

until it is simply too late for a court to render justice." Cummings, 321 N.J. 

Super. at 165. 

Here, defendant filed his first PCR petition well over five years after his 

September 2004 plea. Therefore, defendant is time-barred unless he can show 

excusable neglect. Excusable neglect "encompasses more than simply providing 

a plausible explanation for a failure to file a timely PCR petition." State v. 

Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). To determine whether 

excusable neglect is present, the court "should 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." Ibid. (quoting Afanador, 151 N.J. at 52).

Defendant argues he can show excusable neglect in that he did not have 

any way of knowing at the time he entered his plea nor until the time deportation 

proceedings were initiated about eight and a half years later that PCR was 

necessary. He contends the "assurances" he received at his plea hearing made 

it reasonable for him not to worry about deportation or take any steps such as 
17 A-0430-18T4

PCR to mitigate any potential consequences of a prior guilty plea on a "future 

potential deportation he had no reason to believe was coming." 

However, defendant was first aware of the possible deportation 

consequences from the time he entered his plea, thirteen years before he filed

his PCR petition. Therefore, defendant's claims are time-barred, as he has not 

shown excusable neglect in that he was aware deportation was a possibility from 

the time he entered his plea, and, even after deportation proceedings were 

initiated against him, did not act promptly but waited another four years. 

Defendant's remaining arguments are without sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.