SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1237-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

IAN A. PERSAUD, 

Defendant-Appellant.

_______________________

Submitted March 17, 2021 – Decided April 20, 2021

Before Judges Alvarez and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law 

Division, Monmouth County, Indictment No. 93-06-

0959.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Monique Moyse, Designated Counsel, on the 

brief).

Christopher J. Gramiccioni, Monmouth County 

Prosecutor, attorney for respondent (Monica do 

Outeiro, Assistant Prosecutor, of counsel; Daniel J. 

Burzon, Legal Assistant, 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NOT FOR PUBLICATION WITHOUT THE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 Ian Persaud appeals from a September 16, 2019 order denying 

his petition for post-conviction relief (PCR) without an evidentiary hearing. We 

affirm. 

We discern the following facts from the record. On March 21, 1993, 

defendant, a Guyanese immigrant, was arrested after police found various 

controlled dangerous substances (CDS) in his vehicle. On February 2, 1995, a 

jury convicted defendant of fourth-degree possession of CDS, N.J.S.A. 2C:35-

10(a)(3); and third-degree possession of CDS with intent to distribute, N.J.S.A. 

2C:35-5(b)(11). On March 24, 1995, defendant was sentenced to three years' 

probation. Defendant did not appeal his conviction or sentence. 

In 1997, defendant was convicted in North Carolina of four drug-related 

offenses: possession with the intent to sell and deliver marijuana, manufacturing 

marijuana, maintaining a dwelling for the keeping of drugs, and possession of 

heroin. In 2002, defendant was convicted in North Carolina of conspiracy to 

possess with intent to distribute fifty grams or more of cocaine and cocaine base. 

Defendant was then sentenced to life imprisonment pursuant to 21 U.S.C. §§ 

841, 851. In 2012, defendant filed a writ of habeas corpus arguing that his 

mandatory life sentence, based on the finding that he had two prior convictions 

for "felony" drug offenses, was contrary to United States v. Simmons, 649 F.3d 
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237, 247 (4th Cir. 2011) (en banc). Persaud v. United States, Nos. 12-cv-509, 

01-cr-36-7, 2019 U.S. Dist. LEXIS 93810, at *3 (W.D.N.C. June 4, 2019). A 

judge in the United States District Court for the Western District of North 

Carolina agreed, finding that the highest sentence defendant could have received 

for the 1997 North Carolina convictions was eight months and, therefore, they 

were not "felony" drug offenses for purposes of the sentencing enhancement

statute. Id. at *6-7. In 2019, the judge accordingly vacated defendant's life 

sentence and remanded the case for re-sentencing. Id. at *7. 

On September 18, 2018, more than twenty years after his 1995 conviction, 

defendant filed a pro se petition for PCR. Following oral argument, Judge 

Dennis R. O'Brien issued a clear and cogent opinion from the bench denying 

defendant's request for an evidentiary hearing as well as his petition for PCR. 

He found that defendant failed to demonstrate any basis to excuse the 

untimeliness of the application. R. 3:22-12(a)(1)(A). Judge O'Brien also 

concluded defendant's claims that his trial counsel was ineffective in failing to

inform him of the immigration consequences of his conviction or potential 

sentencing enhancements in the event of future convictions were wholly without 

merit. 
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On appeal, defendant raises the following arguments for our 

consideration: 

POINT I

[DEFENDANT] IS ENTITLED TO AN 

EVIDENTIARY HEARING ON HIS CLAIM THAT 

HIS ATTORNEY RENDERED INEFFECTIVE 

ASSISTANCE OF COUNSEL FOR MISINFORMING 

HIM ABOUT THE DEPORTATION AND 

SENTENCING ENHANCEMENT CONSEQUENCES 

OF HIS CASE. 

POINT II

THE PCR COURT ERRONEOUSLY RULED THAT 

[DEFENDANT'S] PETITION WAS TIME-BARRED 

BECAUSE ANY DELAY IN FILING THE PETITION 

WAS DUE TO DEFENDANT'S EXCUSABLE 

NEGLECT AND 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.

Where, as here, the PCR judge "did not hold an evidentiary hearing on the 

claim defendant now raises on appeal, we 'conduct a de novo review.'" State v. 

Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018) (quoting State v. Harris, 

181 N.J. 391, 421 (2004)); see also State v. Blake, 444 N.J. Super. 285, 294 

(App. Div. 2016). The decision to proceed without an evidentiary hearing is 
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reviewed for abuse of discretion. State v. Brewster, 429 N.J. Super. 387, 401 

(App. Div. 2013) (citing State v. Marshall, 148 N.J. 89, 157-58 (1997)). 

To establish a prima facie claim of ineffective assistance of counsel, a 

defendant must satisfy the two-pronged test enumerated in Strickland v. 

Washington, 466 U.S. 668, 687 (1984), which our Supreme Court adopted in 

State v. Fritz, 105 N.J. 42, 58 (1987). To satisfy the first Strickland/Fritz prong, 

a defendant must establish that his counsel "made errors so serious that counsel 

was not functioning as the 'counsel' guaranteed the defendant by the Sixth 

Amendment." Strickland, 466 U.S. at 687. To satisfy the second Strickland/Fritz

prong, a defendant must establish "a reasonable probability that, but for 

counsel's unprofessional errors, the result of the proceeding would have been 

different. A reasonable probability is a probability sufficient to undermine the 

outcome." Id. at 694.

Defendant's claims are unquestionably time-barred. Rule 3:22-

12(a)(1)(A) states that a first petition for PCR shall not be filed more than five 

years after the judgment of conviction unless the petition "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 
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injustice." "Absent compelling, extenuating circumstances, the burden to justify 

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

delay." State v. Milne, 178 N.J. 486, 492 (2004) (quoting State v. Afanador, 

151 N.J. 41, 52 (1997)). Defendant's sole argument, that he was unaware he 

could file a petition for PCR, is unavailing. "Ignorance of the law and rules of 

court does not qualify as excusable neglect." State v. Merola, 365 N.J. Super. 

203, 218 (Law Div. 2002), aff'd o.b., 365 N.J. Super. 82 (App. Div. 2003). 

Regardless, we also reject defendant's argument that his trial counsel was 

ineffective in failing to inform him of the immigration consequences of his 

conviction. In 2009, our Supreme Court held that a defendant could show 

ineffective assistance of counsel by proving that his or her guilty plea resulted 

from "inaccurate information from counsel concerning the deportation 

consequences of his plea." State v. Nuñez-Valdéz, 200 N.J. 129, 143 (2009). A 

year later, the United States Supreme Court clarified that counsel's duty is not 

limited to avoiding providing "false or misleading information," Nuñez-Valdéz, 

200 N.J. at 138, but also includes an affirmative duty to inform a defendant 

entering a guilty plea of the relevant law pertaining to mandatory deportation,

Padilla v. Kentucky, 559 U.S. 356, 368-69 (2010). The United States Supreme 

Court, however, held that the rule announced in Padilla imposed a new 
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obligation and announced a new rule of law. Chaidez v. United States, 568 U.S. 

342, 357-58 (2013). Consequently, the holding of Padilla would be applied 

prospectively and "defendants whose convictions became final prior to Padilla

therefore cannot benefit from its holding." Id. at 358. Defendant, who was 

convicted in 1995, seeks PCR relief based on the allegation his trial counsel did 

not inform him of the possibility of deportation. Defendant was not misadvised 

or given false information. Under pre-Padilla standards, defendant cannot 

satisfy the first Strickland prong. 

We also conclude, as did the PCR judge, that trial counsel was not 

ineffective due to his alleged failure to advise defendant of the effect of the 

subject conviction on his sentencing for future crimes. See State v. Wilkerson, 

321 N.J. Super. 219, 227 (App. Div. 1999) (holding there is no constitutional 

requirement that a defense attorney must advise a client that if he or she commits 

future criminal offenses there may be adverse consequences by way of 

enhancement of punishment). 

Even viewing defendant's factual assertions in the light most favorable to 

him, he has failed to establish a prima facie case sufficient to warrant an 

evidentiary hearing. Therefore, the PCR judge did not abuse his discretion in 

denying defendant's request. See R. 3:22-10(b). 
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Affirmed.