SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-2853-22 

STATE OF NEW JERSEY, 

Plaintiff-Respondent, 

v.

A.W.,

1

Defendant-Appellant. 

__________________________

Argued September 18, 2024 – Decided October 7, 2024 

Before Judges Rose and Puglisi. 

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Indictment Nos. 98-10-2052

and 99-08-1540, and Accusation Nos. 99-03-0476 and 

05-12-2179. 

William Riback argued the cause for appellant 

(William Riback, LLC, attorneys; William Riback, on 

the briefs).

Jaimee M. Chasmer, Assistant Prosecutor, argued the

cause for respondent (Mark Musella, Bergen County 

Prosecutor, attorney; William P. Miller, Assistant 

1

 We use initials pursuant to Rule 1:38-3(c)(15). 

NOT FOR PUBLICATION WITHOUT THE 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.
2 A-2853-22

Prosecutor, of counsel and on the brief; Catherine A. 

Foddai, Legal Assistant, on the brief). 

Claude Caroline Heffron argued the cause for amicus

curiae Association of Criminal Defense Lawyers of 

New Jersey (Pashman Stein Walder Hayden, PC, 

attorneys; Claude Caroline Heffron, on the brief).

PER CURIAM 

Defendant A.W., a non-citizen of the United States, appeals from two 

April 10, 2023 orders denying his petition for post-conviction relief (PCR) 

without an evidentiary hearing and his motion to withdraw his guilty pleas to 

six marijuana convictions entered between 1999 and 2005. We affirm. 

We summarize the relevant facts and procedural history from the limited 

record provided on appeal.2 At issue are the follow convictions: 

Indictment No. 98-10-2052

Conviction: Fourth-degree distribution of marijuana, 

N.J.S.A. 2C:35-5(a)(1) and (5)(b)(12). 

Sentence: Fifteen months' imprisonment. 

Date of conviction: July 2, 1999. 

Accusation No. 99-03-0476

Convictions: Two counts of distribution of marijuana 

within 1000 feet of a school, N.J.S.A. 2C:35-7; and

2

 For example, defendant only provided the transcript of the plea hearing 

pertaining to his 2006 conviction because, as the State explained during 

argument before the PCR court, transcripts are not retained by the courts beyond 

twenty years. 
3 A-2853-22

one count of possession with intent to distribute 

marijuana within 1000 feet of a school (collectively, 

school-zone convictions). 

Sentence: Three years' imprisonment with a fifteenmonth parole ineligibility term, imposed concurrently 

with the sentence under Indictment No. 98-10-2052.

Date of convictions: July 2, 1999. 

Indictment No. 99-08-1540

Conviction: Fourth-degree possession of marijuana,

N.J.S.A. 2C:35-10(a)(3). 

Sentence: Eighteen months' imprisonment, imposed 

concurrently with the sentence defendant was then 

serving.

Date of conviction: March 17, 2000. 

Accusation No. 05-12-2179

Conviction: Fourth-degree possession of marijuana 

2C:35-10(a)(3). 

Sentence: Two years' probation. 

Date of conviction: March 17, 2006. 

A Jamaican national and permanent United States resident, defendant was 

deported in 2007.3 Fourteen years later, in 2021, with the assistance of retained 

counsel, defendant moved to withdraw his guilty pleas and filed a PCR petition. 

Defendant's applications were made a few months after the Legislature enacted 

marijuana reforms, codified in the Cannabis Regulatory, Enforcement 

Assistance, and Marketplace Modernization Act (CREAMMA), N.J.S.A. 24:6I3

 Defendant's removal papers are not contained in the record. 
4 A-2853-22

31 to -56, and implemented in the Attorney General Law Enforcement Directive 

Governing Dismissal of Certain Pending Marijuana Charges No. 2021-1. 

In his PCR brief, defendant raised five points, arguing: (1) the nonschool-zone offenses were "vacated by operation of law"; (2) his PCR petition 

was not time-barred; (3) his plea attorneys were ineffective for rendering 

erroneous advice concerning the potential deportation consequences and failing 

to file certain pretrial motions; (4) his plea attorneys' misadvice rendered his 

plea involuntary and, as such, he should be permitted to withdraw his guilty 

plea; and (5) he established "manifest injustice" warranting withdrawal of his 

guilty plea under the Slater4 factors. 

During oral argument before the PCR court on February 14, 2023, 

defendant's attorney commented that same day our Supreme Court issued its 

decision in State v. Gomes, 253 N.J. 6 (2023), a pretrial intervention case that 

discussed CREAMMA's legislative history, including the civil rights violations 

that spurred its enactment. Noting all but defendant's convictions for school4

 State v. Slater, 198 N.J. 145, 157-58 (2009) (establishing four factors a court 

should weigh in evaluating a motion to withdraw a guilty plea: "(1) whether the 

defendant has asserted a colorable claim of innocence; (2) the nature and 

strength of defendant's reasons for withdrawal; (3) the existence of a plea 

bargain; and (4) whether withdrawal would result in unfair prejudice to the State 

or unfair advantage to the accused").
5 A-2853-22

zone offenses were vacated "by operation of law," see id. at 25-27 (quoting 

N.J.S.A. 2C:52-6.1), PCR counsel argued "[b]ecause marijuana is still illegal at 

the federal level," vacatur of the non-school-zone convictions was "meaningless 

for foreign nationals unless the vacatur [wa]s based on a constitutional 

infirmity." PCR counsel contended defendant's civil rights were violated under 

CREAMMA and his right to due process was violated based on his plea 

attorneys' misadvice. PCR counsel further asserted defendant's school-zone 

convictions should be subject to the same automatic vacatur under CREAMMA. 

The PCR court denied relief. In a written decision accompanying the

April 10, 2023 orders, the court initially found defendant's PCR petition was 

untimely. Noting defendant "was deported one year after his final conviction in 

2006," and "did not file an application for PCR until 2021," the court found 

defendant failed to establish excusable neglect to relax the five-year time bar 

under Rule 3:22-12(a)(1). Nonetheless, the court addressed defendant's 

substantive ineffective-assistance-of-counsel claims and concluded they lacked 

merit under the familiar Strickland/Fritz5 standard. The court also found the

5

 Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 

42, 58 (1987) (requiring a defendant seeking PCR on ineffective-assistance-ofcounsel grounds demonstrate: (1) the particular manner in which counsel's 
6 A-2853-22

Slater factors weighed in the State's favor. Accordingly, the court denied 

defendant's motion to vacate his guilty pleas. 

 On appeal, defendant abandons his ineffective-assistance-of-counsel 

claims. He raises the following arguments for our consideration6: 

A. [Defendant] should be entitled to withdraw his 

guilty plea under Slater'sfour[-]factor test as a result 

of CREAMMA. 

1. [Defendant] meets factor one for offenses 

"automatically expunged" because the Legislature 

has "completely rejected" these convictions. 

 a. Gomes holds that CREAMMA's "automatic 

expungement" is not "rehabilitative." 

 b. Federal law does not recognize 

"rehabilitative" expungements. 

 c. The [c]ourt should determine that the 

Legislature intended to provide the "automatic 

expungement" because the convictions are 

procedurally and substantively improvident. 

2. [Defendant] meets Slater factor one for 

convictions under [N.J.S.A.] 2C:35-7 utilizing equal 

protection analysis because these convictions are 

substantively no different than those under 

[N.J.S.A.] 2C:35-5(12). 

performance was deficient; and (2) the deficiency prejudiced defendant's right 

to a fair trial). 

6

 We eliminate defendant's sub-headings under A(2) for the reader's 

convenience. 
7 A-2853-22

 . . . . 

3. Under Slater prong two, [defendant] has strong 

reasons for withdrawing his pleas. 

4. Factor three, that the conviction was entered 

through a plea bargain, should be given no weight. 

5. Factor four, unfair prejudice, should weigh in 

favor of [defendant]. 

B. [Defendant] should be entitled to [PCR for the same 

reasons as argued above]. 

C. The [c]ourt should exercise original jurisdiction to 

resolve the issues of law which were raised below. 

In essence, defendant seeks reentry into the United States, arguing federal 

law does not recognize his automatically-expunged marijuana convictions under 

CREAMMA, unless they are designated "procedurally and substantively 

improvident," because immigration courts do not recognize "rehabilitative" 

expungements. For the first time on appeal, defendant challenges the 

constitutionality of CREAMMA to the extent the Act "fail[s] to provide an 

'automatic expungement'" for school-zone convictions. In that context, 

defendant argues CREAMMA violates defendant's right to equal protection. 

We permitted the Association of Criminal Defense Lawyers of New Jersey 

(ACDL) to appear as amicus curiae. The ACDL joins defendant urging us to 

declare marijuana convictions "void due to the inherent procedural and 

substantive defects" for immigration purposes. The ACDL also supports 
8 A-2853-22

defendant's argument that CREAMMA's exclusion of convictions for schoolzone offenses violates equal protection. 

 As a threshold matter, before the PCR court, defendant failed to notice the 

Attorney General of his constitutional challenge to the exclusion of school-zone 

offenses under CREAMMA. See R. 4:28-4(a)(1) (providing a party questioning 

a state statute's validity "shall give notice of the pendency of the action to the 

Attorney General"). Accordingly, it would have been procedurally improper for 

the PCR court to have entertained the constitutionality of the statute without 

advance notice to the Attorney General. 

Similarly flawed is defendant's request to amend his CREAMMA vacatur 

orders to expressly state his expungements were "procedurally and substantively 

improvident." Defendant's argument "is best left for consideration by the 

Legislative and Executive branches of government." In re Declaratory Judgment 

Actions Filed by Various Muns., 446 N.J. Super. 259, 267 (App. Div. 2016); see 

also State v. Saavedra, 433 N.J. Super. 501, 525 (App. Div. 2013). We simply 

note, as did the State, following the enactment of CREAMMA, "the Legislature 

has not repealed or amended [the school zone statute]." 

 Moreover, even if we were inclined to consider defendant's statutory 

challenge to the school-zone offenses and proposed revision to automatic 
9 A-2853-22

expungement orders under CREAMMA, we would not be able to do so on the 

basis of the inadequate record in this case. Notwithstanding our de novo review 

of statutory interpretation issues, see State v. Gandhi, 201 N.J. 161, 176 (2010), 

"our function as an appellate court is to review the decision of the trial court, 

not to decide the motion tabula rasa," Est. of Doerfler v. Fed. Ins. Co., 454 N.J. 

Super. 298, 302 (App. Div. 2018). 

To the extent not addressed, defendant's remaining contentions lack 

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We 

affirm the April 10, 2023 orders substantially for the reasons set forth by the 

PCR court in its accompanying written decision – based on the arguments raised 

by defendant before the court. 

In summary, defendant's non-school-zone convictions under Indictment 

No. 98-10-2052, Indictment No. 99-08-1540, and Accusation No. 05-12-2179 

are automatically expunged under CREAMMA. We decline to revise the 

vacatur orders to state the expungements were "procedurally and substantively 

improvident." Although defendant's school-zone convictions under Accusation 

No. 99-03-0476 do not qualify for automatic expungement under CREAMMA, 

he may apply for their expungement under N.J.S.A. 2C:52-5.1(a)(1)(a). 

Affirmed.