RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4322-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTIAN SOLORZANO,

Defendant-Appellant.

__________________________

Submitted April 21, 2020 – Decided June 12, 2020

Before Judges Yannotti and Currier.

On appeal from the Superior Court of New Jersey, Law 

Division, Atlantic County, Indictment No. 07-02-0406.

Edward Crisonino, attorney for appellant.

Damon G. Tyner, Atlantic County Prosecutor, attorney 

for respondent (Nicole Lynn Campellone, Assistant 

Prosecutor, on the brief).

PER CURIAM

Defendant Christian Solorzano appeals from the May 9, 2019 denial of his 

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

NOT FOR PUBLICATION WITHOUT THE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 argues the PCR court erred by finding the petition was untimely under 

Rule 3:22-12 and that he was not entitled to an evidentiary hearing. We affirm.

Defendant was born in Peru and came to the United States with his parents

when he was fifteen years old. He attended high school and completed some 

college courses in the United States. At the time of oral argument on defendant's 

petition, he was married, employed, and had two children who were United 

States citizens.

In April 2007, an Atlantic County grand jury indicted defendant with four 

counts of third-degree invasion of privacy in violation of N.J.S.A. 2C:14-9(b); 

four counts of fourth-degree endangering the welfare of a child in violation of 

N.J.S.A. 2C:24-4(b); and third-degree attempt in violation of N.J.S.A. 2C:5-1 

and N.J.S.A. 2C:14-9. The charges arose from incidents that took place in 

March and November 2006. At the time, defendant was living with his girlfriend 

and her thirteen-year-old daughter. On those dates, he hid a camera in the girl's 

bathroom so he could observe her undressed. 

On December 3, 2007, defendant pled guilty to two counts of third-degree 

invasion of privacy and two amended charges of fourth-degree abuse of a child 

in violation of N.J.S.A. 9:6-3. At the time of the plea hearing, defendant was 

thirty-two years old. He used the services of a translator during the hearing.
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While under oath, represented by counsel, defendant acknowledged he 

understood his rights, was pleading guilty voluntarily and without any threats, 

coercion or pressure, and had truthfully answered all of the questions on the plea 

form. Question seventeen asked whether defendant understood that by pleading 

guilty, he "may be deported by virtue of [his] plea of guilty" if "[he was] not a 

United States citizen or national . . . ." Defendant circled "yes."

Defendant was sentenced in March 2008 to five years of probation, 

conditioned on serving 270 days in jail, which could be served by day reporting. 

He did not appeal and successfully completed probation.

Ten years later, in June 2018, defendant was arrested by the United States 

Immigration and Customs Enforcement (ICE) and faced removal proceedings as 

a result of the 2008 convictions. He was released on bail pending the outcome 

of his PCR application.

In September 2018, defendant filed a counseled PCR petition. He 

challenged his plea and sentence, stating in a certification that he "was not told 

of the immigration consequences of [the] plea," and he had not agreed to the 

amended charges for fourth-degree abuse of a child. 

Defendant further stated he "believed [his] attorney when he told me I

would not be deported as a result of these pleas." He certified he had no reason 
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to know the advice was wrong until he was arrested ten years later by ICE. 

Defendant further alleged he would not have accepted the plea agreement had 

he known it would subject him to deportation. He stated that upon his arrest and 

discovery of the "true immigration consequences" of his plea, he hired counsel 

and filed the petition for PCR.

After oral argument, the PCR court entered an order and issued a written 

decision on May 9, 2019 denying the petition. The court found the petition was 

untimely because it was filed more than ten years after the entry of the judgment 

of conviction, "well over" the five-year time limit established in Rule 3:22-12. 

The court rejected defendant's argument that he had demonstrated 

excusable neglect to relax the time restriction, citing to State v. Cummings, 321 

N.J. Super. 154, 165 (App. Div. 1999), for the proposition that a lack of legal 

knowledge is not adequate to show excusable neglect. The court also relied on

State v. Brown, 455 N.J. Super. 460 (App. Div. 2018), and State v. Brewster, 

429 N.J. Super. 387 (App. Div. 2013), to support its determination that 

defendant had not demonstrated excusable neglect.

The PCR court stated:

Here, while the judge both at the plea and at the 

sentencing did not mention any immigration 

consequences, the judge did confirm with [defendant] 

that he had discussed the questions and answers from 
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the plea form with his attorney. This plea form 

contained the same [q]uestion [seventeen] as that 

considered in Brewster. [Defendant] acknowledged he 

had reviewed the plea form and that he understood each 

question and answered them truthfully.

The PCR court also held defendant was not entitled to an evidentiary 

hearing because he did not satisfy the Strickland-Fritz1test for an ineffective 

assistance of counsel claim. The court reasoned there was "no evidence to 

support [defendant's] claim that [plea counsel] provided false or misleading 

information before he agreed to plead guilty." The court stated further that

defendant's "allegation amounts to a bald assertion, failing to reach the threshold 

necessary to merit an evidentiary hearing. While [defendant] alleges that [plea 

counsel] told him his plea would not at all affect his immigration status, 

[defendant] provides no evidence to support this allegation." 

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

I. THE TIME-BAR IN [RULE] 3:22-12 SHOULD BE 

RELAXED BECAUSE THE DELAY IN THIS CASE 

WAS NOT DUE TO ANY LACK OF EFFORT ON 

THE PART OF THE APPELLANT AND 

ENFORCEMENT OF THE TIME-BAR WOULD 

RESULT IN A FUNDAMENTAL INJUSTICE

II. THE COURT SHOULD HAVE HELD AN 

EVIDENTIARY HEARING AS APPELLANT HAS 

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

42, 58 (1987). 
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MADE A PRIME FACIE CASE FOR INEFFECTIVE 

ASSISTANCE OF COUNSEL

The standard for determining whether trial counsel's performance was 

ineffective for purposes of the Sixth Amendment was formulated in Strickland, 

466 U.S. at 687, and adopted by the New Jersey Supreme Court in Fritz, 105 

N.J. at 58. 

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 he or she 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 

petition to be filed within one year of the "date on which the factual predicate 
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for the relief sought was discovered, if that factual predicate 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." State v. 

Afanador, 151 N.J. 41, 52 (1997) (citation omitted).

"Absent compelling, extenuating circumstances, the burden to justify 

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

delay." Ibid. "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." Brewster, 429 N.J. Super. at 400 (citation 

omitted).

In first addressing the procedural issue of timeliness, we are satisfied 

defendant demonstrated excusable neglect as required for a late filing under 

Rule 3:22-12(a)(1). He asserts the ten-year delay between the March 2008 
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judgment of conviction to the filing of his petition was excusable because he 

was affirmatively misinformed regarding the immigration consequences of his 

plea. He certified he had no reason to suspect he had received the ineffective 

assistance of counsel until he was arrested by ICE in June 2018 and learned he 

was misinformed of the consequences of his plea. Moreover, he claimed his 

green card had been renewed in 2015.2Immediately after defendant was 

arrested, he retained counsel and filed his PCR petition. 

We disagree, however, with defendant's argument that he was entitled to 

an evidentiary hearing. In his supporting certification, defendant gave 

conflicting statements and made bald assertions. He stated initially that he "was 

not told of the immigration consequences of [his] plea," but later said "[he]

believed [his] attorney when he told [him he] would not be deported as a result 

of these pleas." These are contradictory statements. In addition, the record from 

the plea hearing made it clear defendant was informed through counsel that his 

guilty plea might subject him to deportation consequences.

As defendant's conviction occurred in March 2008, he was subject to the 

Nunez-Valdez standard – allowing a defendant to establish the ineffective 

2 PCR counsel made this representation regarding defendant's immigration 

status to the PCR court during oral argument on the petition. The record does 

not contain any information as to a green card or its renewal.
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assistance of counsel by proving his guilty plea resulted from "inaccurate 

information from counsel concerning the deportation consequences of his plea." 

State v. Nunez-Valdez, 200 N.J. 129, 143 (2009). Defendant's conflicting and 

unsupported statements have not established what advice, if any, he received 

from counsel. Therefore, we are satisfied 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.