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 NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. 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 pl ea s to six marijuana convictions entered between 1999 and 2005

. We affirm. We summarize the relevant facts and procedural hist ory from the limited record provided on appeal. 2 At issue are the follow convictions: Indictment No. 98- 10
- 2052 Conviction: Fourth-degree distribution of marijuan a, 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 marijua na 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 S tate explained during argument before the PCR court, transcripts are not retained by the courts beyond tw enty years.3 A- 2853

- 22 one count of possession with intent to distribute marijuana within 1000 feet of a school (collectivel y, school-zone convictions). Sentence: Three years' imprisonment with a fifteen

month parole ineligibility term, imposed concurrent ly 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 servi ng. 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 res ident, 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 aft er the Legislature enacted marijuana reforms, codified in the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREA MMA), N.J.S.A. 24: 6I3 Defendant's removal papers are not contained in t he record

.4 A- 2853

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31 to - 56 , and implemented in the Attorney General Law Enfor cement Directive Governing Dismissal of Certain Pending Marijuana Ch arges No. 2021-1. In his PCR brief, defendant raised five points, arg uing: (1) the nonschool-zone offenses were "vacated by operation of law"; (2) his PCR petition was not time-barred; (3) his plea attorneys were in effective for rendering erroneous advice concerning the potential deportati on consequences and failing to file certain pretrial motions; (4) his plea atto rneys' misadvice rendered his plea involuntary and, as such, he should be permitt ed to withdraw his guilty plea; and (5) he established "manifest injustice" w arranting withdrawal of his guilty plea under the Slater 4 factors. During oral argument before the PCR court on Februa ry 14, 2023, defendant's attorney commented that same day our Su preme Court issued its decision in State v. Gomes, 253 N.J. 6 (2023), a pr etrial intervention case that discussed CREAMMA's legislative history, including the civil rights violations that spurred its enactment. No ting all but defendant's convictions for school4 State v. Slater, 198 N.J. 145, 157-58 (2009) (estab lishing 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 innocen ce; (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

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zone offenses were vacated "by operation of law," s ee 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 base d on a constitutional infirmity." PCR counsel contended defendant's civi l rights were violated under CREAMMA and his right to due process was violated b ased on his plea attorneys' misadvice. PCR counsel further asserted de fendant's school-zone convictions should be subject to the same automatic vacatur under CREAMMA. The PCR court denied relief. In a written decision accompanying t he April 10, 2023 orders, the court initially found de fendant's PCR petition was untimely. Noting defendant "was deported one year af ter his final conviction in
200 6," 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 defend ant's substantive ineffective-assistance- of -counsel claims an d concluded they lacked merit under the familiar Strickland/Fritz 5 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- of

counsel grounds demonstrate: (1) the particular ma nner in which counsel's6 A- 2853

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Slater factors weighed in the State's favor. Accor dingly, the court denied defendant's motion to vacate his guilty pleas. On appeal, defendant abandons his ineffective-assi stance- of -counsel claims

. He raises the following arguments for our consider ation 6 :

A. [Defendant] should be entitled to withdraw his guilty plea under Slater 's four[-]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 equa l 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 p rejudiced 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. Th e [c]ourt should exercise original jurisdiction to resolve the issues of law which were raised below. In essence, defendant seeks reentry into the United S tates , arguing federal law does not recognize his automatically-expunged m arijuana convictions under
CREAMMA , unless they are designated "procedurally and substa ntively improvident, " because immigration courts do not recognize "rehabi litative " expungements. For the first time on appeal, defend ant challenges the constitutionality of CREAMMA to the extent the Act "fail[s] to provide an 'automatic expungement'" for school-zone conviction s. In that context, defendant argues CREAMMA violates defendant's right to equal protection.
We permitted the Association of Criminal Defense Lawy ers of New Jersey (ACDL) to appear as amicus curiae. The ACDL joins defendant urging us to declare marijuana convictions "void due to the inhe rent procedural and substantive defects" for immigration purposes. The ACDL also supports8 A- 2853

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defendant's argument that CREAMMA's exclusion of co nvictions for schoolzone offenses violates equal protection. As a threshold matter, before the PCR court, defen dant 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 th e pendency of the action to the Attorney General"). Accordingly, it would have bee n procedurally improper for the PCR court to have entertained the constitutiona lity of the statute without advance notice to the Attorney General

. Similarly flawed is defendant's request to amend hi s CREAMMA vacatur orders to expressly state his expungements were "pr ocedurally and substantively improviden t. " Defendant's argument "is best left for considera tion by the Legislative and Executive branches of government." In re Declaratory Judgment Actions Filed by Various Muns., 446 N.J. Super. 259 , 2 67 (App. Div. 2016); see also State v. Saavedra, 433 N.J. Super. 501, 525 (A pp. Div. 2013). We simply note, as did the State, following the enactment of CREAMMA, "the Legislature has not repealed or amended [the school zone statut e]." Moreover, even if we were inclined to consider def endant's statutory challenge to the school-zone offenses and proposed revision to automatic9 A- 2853

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expungement orders under CREAMMA , we would not be able to do so on the basis of the inadequate record in this case. N otwithstanding 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 th e 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 opinio n . 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 decli ne to revise the vacatur orders to state the expungements were "proc edurally and substantively improvident." Although defendant's school-zone con victions under Accusation No. 99- 03

- 0476 do not qualify for automatic expungement under CREA MMA, he may apply for their expungement under N.J.S.A. 2 C:52-5.1(a)(1)(a). Affirmed.