SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2186-20

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHANE PRYCE,

Defendant-Appellant.

Submitted May 24, 2022 – Decided June 27, 2022

Before Judges Currier and Smith.

On appeal from the Superior Court of New Jersey, Law 

Division, Mercer County, Indictment No. 08-10-0913.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Karen A. Lodeserto, Designated Counsel, on 

the brief).

Angelo J. Onofri, Mercer County Prosecutor, attorney 

for respondent (Elizabeth M. Newton, 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NOT FOR PUBLICATION WITHOUT THE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 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, a Jamaican citizen, appeals from the September 4, 2020 order 

denying his petition for post-conviction relief (PCR) without an evidentiary 

hearing. Defendant argues the PCR court erred in denying him a hearing 

because his plea counsel did not give him proper advice regarding the 

immigration consequences of a guilty plea. We affirm.

After a search of defendant's home disclosed a large amount of marijuana,

which defendant conceded was his, he was charged in a 2008 indictment with: 

(1) fourth-degree possession of a controlled dangerous substance, N.J.S.A. 

2C:35-10(a)(3); (2) third-degree possession of a controlled dangerous substance 

with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(11); and (3) 

third-degree possession of a controlled dangerous substance with intent to 

distribute on or near school property, N.J.S.A. 2C:35-7, 2C:35-5(a)(1), and 

2C:35-5(b)(11). 

During the May 29, 2009 plea hearing, defendant signed and initialed plea 

forms. Question seventeen asked, "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?" Defendant circled "YES" when executing the plea form. At the time, 

defendant was a legal permanent resident.
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Through counsel, defendant requested an adjournment of the hearing to 

seek advice on how a guilty plea might affect his immigration status. In granting 

the adjournment, the judge stated, "[Defendant] has made this request to run the 

effect of his plea past an immigration attorney." She later explained to 

defendant, "I'm giving you between now and June 23 to look into this 

immigration issue." 

The parties reconvened on July 8, 2009. The court referenced the plea 

forms previously completed at the initial plea hearing and defendant executed a

supplemental plea form for drug offenses. The judge also noted the prior hearing 

was adjourned for defendant to consult with an immigration attorney. In 

response, defense counsel stated, "That's correct, Judge. We're ready to proceed 

today." 

The court inquired whether defendant had reviewed all of the questions 

on the plea form with his attorney, and whether he understood the questions. 

Defendant replied affirmatively and stated he was not coerced into signing the 

forms.

Defendant subsequently pleaded guilty to one count of third-degree 

possession of a controlled dangerous substance with intent to distribute on or 

near school property, N.J.S.A. 2C:35-7, 2C:35-5(a)(1), and 2C:35-5(b)(11). The 
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State recommended a flat, three-year prison term. On March 3, 2010, the court 

sentenced defendant to a three-year probationary term. Defendant successfully 

completed his probationary term in March 2013. 

Defendant traveled to Jamaica in December 2008. Upon his return to the 

United States, he was detained by Immigration and Customs Enforcement (ICE)

and his passport was seized. Nine years later, in June 2017, defendant was 

arrested by ICE and detained for almost two years.

Defendant filed a pro se PCR petition on August 24, 2018. Assigned 

counsel filed a supplemental brief. Defendant alleged he was not informed of 

the effect his guilty plea would have on his immigration status. He asserted if 

he knew he could be deported, he would not have pleaded guilty. PCR counsel 

also included a letter from defendant's plea counsel. It stated:

I am unable to locate [defendant's] file . . . . I have no 

personal recollection of what I may have told 

[defendant] regarding potential immigration 

consequences. I can only tell you that typically, if 

immigration issues were involved, I would advise the 

client to seek immigration counsel, as I do not practice 

immigration law and would not feel comfortable giving 

any such advice. 

In considering the timeliness of defendant's petition, the court found it 

was filed more than eight years after his conviction. Therefore, it was untimely 
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under Rule 3:22-12. In addition, defendant waited an additional year to file his 

petition even after he was arrested by ICE. 

The judge found defendant had not shown excusable neglect to permit a 

late filing because he was aware of the potential immigration consequences 

when he pleaded guilty in 2009 and "unfamiliarity with his post-conviction 

status does not establish excusable neglect." The judge further concluded the 

State would be prejudiced by the late filing because it would have to prosecute 

an eight-year-old case.

Despite its conclusion that the petition was untimely, the court 

nevertheless considered its merits. After reviewing the pertinent case law, the 

court stated: 

[T]he record establishes that when he pled, [defendant] 

understood the implications of the guilty plea on his 

immigration status . . . . [Defendant] initialed and 

signed the plea form and acknowledged an 

understanding that since he was not a United States 

citizen or national, he may be deported. He inquired as 

to his immigration status before he entered the guilty 

plea and the court granted an adjournment for him to 

speak to an immigration attorney. Thus, [defendant]

has not established that counsel's performance fell 

outside the wide range of professionally competent 

assistance, and he has not adequately established 

prejudice. Further, the record supplies ample doubt that 

petitioner would not have pled guilty but for counsel's 

alleged errors. 
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Because defendant did not present a prima facie case, the court denied his 

request for an evidentiary hearing.

On appeal, defendant raises the following issues for our consideration:

POINT I

THE PCR COURT ERRED IN DENYING 

[DEFENDANT'S] PETITION FOR POSTCONVICTION RELIEF WITHOUT GRANTING AN 

EVIDENTIARY HEARING AS TESTIMONY IS 

NEEDED FROM PRIOR COUNSEL REGARDING 

THE SUBSTANCE OF HIS ADVICE AS TO THE 

IMMIGRATION CONSEQUENCES OF ACCEPTING 

THE GUILTY PLEA.

POINT II

THE PCR COURT ERRED IN DENYING 

[DEFENDANT'S] PETITION FOR POSTCONVICTION RELIEF WITHOUT GRANTING AN 

EVIDENTIARY HEARING AS THE FIVE-YEAR 

TIME BAR SHOULD BE RELAXED DUE TO 

EXCUSABLE NEGLECT AND/OR THE INTERESTS 

OF JUSTICE.

POINT III

THE PCR COURT ERRED IN DENYING 

[DEFENDANT'S] PETITION FOR POSTCONVICTION RELIEF WITHOUT GRANTING AN 

EVIDENTIARY HEARING AS TESTIMONY IS 

NEEDED FROM PRIOR COUNSEL REGARDING 

WHY HE ALLOWED HIS CLIENT TO PROCEED 

WITH HIS GUIL[T]Y PLEA WHEN [DEFENDANT]

WAS NOT AWARE OF THE IMMIGRATION 

CONSEQUENCES. 
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The standard for determining whether trial counsel's performance was 

ineffective for purposes of the Sixth Amendment was formulated in Strickland

v. Washington, 466 U.S. 668, 687 (1984), and adopted by the New Jersey 

Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). 

In order to prevail on a claim of ineffective assistance of counsel, 

defendant must meet the two-prong test establishing both that: (1) counsel's 

performance was deficient and they made errors that were so egregious that 

counsel was not functioning effectively as guaranteed by the Sixth Amendment 

to the United States Constitution; and (2) the defect in performance prejudiced 

defendant's rights to a fair trial such that there exists a "reasonable probability 

that, but for counsel's unprofessional errors, the result of the proceeding would 

have been different." Strickland, 466 U.S. at 687, 694.

A first petition for PCR must be filed within five years of the date of the 

judgment of conviction. R. 3:22-12(a)(1). A late filing may be considered if 

the petition itself shows excusable neglect for the late filing and that a 

fundamental injustice will result if defendant's claims are not considered on their 

merits. R. 3:22-12(a)(1)(A). In addition, Rule 3:22-12(a)(2)(B) allows for a 

second or subsequent petition to be filed within one year of the "date on which 

the factual predicate for the relief sought was discovered, if that factual predicate 
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could not have been discovered earlier through the exercise of reasonable 

diligence . . . ."

To establish "excusable neglect," a defendant must demonstrate "more 

than simply . . . a plausible explanation for a failure to file a timely PCR 

petition." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). Factors 

to be considered include "the extent and cause of the delay, the prejudice to the 

State, and the importance of the [defendant's] claim in determining whether 

there has been an 'injustice' sufficient to relax the time limits." Ibid. (quoting 

State v. Afanador, 151 N.J. 41, 52 (1997)).

"Absent compelling, extenuating circumstances, the burden to justify 

filing a petition after the five-year period will increase with the extent of the 

delay." Afanador, 151 N.J. at 52 (citing State v. Mitchell, 126 N.J. 565, 580 

(1992)). "Where the deficient representation of counsel affected 'a 

determination of guilt or otherwise wrought a miscarriage of justice,' a 

procedural rule otherwise barring post-conviction relief may be overlooked to 

avoid a fundamental injustice." State v. Brewster, 429 N.J. Super. 387, 400 

(App. Div. 2013) (citation omitted).

Defendant's petition was filed eight years after the entry of the judgment 

of conviction. During the first scheduled plea hearing, defendant discussed with 
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counsel and signed a plea form in which he acknowledged understanding he 

could be deported as a result of his guilty plea. He also requested and was 

granted an adjournment of the hearing to consult with immigration counsel. 

Six weeks later, when the parties convened for the plea hearing, defendant 

confirmed he had read and understood the plea forms and discussed the 

questions with counsel. After the court noted the first hearing was adjourned to 

permit defendant to seek immigration advice, his attorney stated, "We're ready 

to proceed today." 

Moreover, during this same time frame, defendant traveled to Jamaica and 

was detained by ICE after his return to the United States. His passport was 

taken. Despite those events, defendant did not seek any further guidance for 

more than eight years and then only after ICE arrested him. Defendant then 

waited an additional year to file his PCR petition. We are satisfied defendant 

has not demonstrated excusable neglect to overcome the time bar under Rule

3:22-12.

Defendant has also failed to establish a prima facie case of ineffective 

assistance of counsel. At the time of defendant's plea and sentence, he was 

subject to the Nunez-Valdez standard—allowing a defendant to establish the 

ineffective assistance of counsel by proving his guilty plea resulted from 
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"inaccurate information from counsel concerning the deportation consequences 

of his plea." 200 N.J. 129, 143 (2009). 

Defendant read and signed the plea forms in 2009 with counsel. He 

acknowledged that he could be deported by virtue of his guilty plea. He also 

sought time to consult with an immigration attorney. Defendant cannot 

demonstrate he was given false or affirmatively misleading advice about the 

deportation consequences of his guilty plea. See id. at 141-42. 

Defendant has also not shown he suffered prejudice from his counsel's 

representation. Although the State recommended a three-year prison term with 

no parole ineligibility period, defense counsel convinced the court to impose a 

non-custodial probationary sentence instead. 

Defendant has not demonstrated a reasonable likelihood that his claim will 

succeed on the merits. As he failed to establish a prima facie case of 

ineffectiveness of counsel, we discern no error in the denial of an evidentiary 

hearing. 

Affirmed.