RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2954-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHANNS CUADROS,

Defendant-Appellant.

_______________________

Submitted January 21, 2021 – Decided

Before Judges Ostrer and Enright.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment Nos. 99-01-0382

and 99-01-0383.

Adam W. Toraya, attorney for appellant. 

Theodore N. Stephens II, Acting Essex County 

Prosecutor, attorney for respondent (Matthew E. 

Hanley, Special Deputy Attorney General/Acting 

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NOT FOR PUBLICATION WITHOUT THE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.

March 1, 2021
2

A-2954-18

Defendant Johanns Cuadros appeals from a January 29, 2019 denial of his 

post-conviction relief (PCR) petition following an evidentiary hearing. We 

affirm.

Defendant was charged under separate indictments with two counts of 

second-degree sexual assault, N.J.S.A. 2C:14-2(5). His victims were fourteen 

years old. Defendant pled guilty to amended charges of fourth-degree criminal 

sexual contact, N.J.S.A. 2C:14-3(b), regarding each victim. In exchange for his 

pleas, the State recommended that he receive a county jail sentence not to exceed

364 days, as a condition of probation, that he undergo counseling and not have 

contact with his victims. On May 26, 1999, he was sentenced in accordance 

with the plea agreement to five years of probation, a 364-day jail term, no 

contact with his victims and counseling, along with the mandatory assessments. 

Defendant filed no direct appeal from his conviction or sentence.

On November 28, 2016, while facing deportation, defendant collaterally 

challenged his seventeen-year-old judgment of conviction by filing a pro se 

petition for PCR. Defendant alleged he was denied effective assistance of 

counsel, "as he was not advised of potential immigration consequences" related 

to his guilty pleas. PCR counsel amended defendant's petition in July 2018, 

alleging trial counsel was ineffective because he misadvised defendant about the 
3

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consequences of his guilty pleas. Specifically, defendant asserted his trial 

attorney told him not to worry about being deported since he was a lawful 

permanent resident and would be serving county jail, versus prison, time under 

his recommended sentence. 

In his amended petition, defendant also argued his guilty pleas were 

defective under Rule 3:9-2, because he did not realize his guilty pleas would 

lead to deportation, and he claimed his pleas resulted from the "the coercive 

conduct of trial counsel." Further, defendant contended he was entitled to 

withdraw his pleas under the Slater test1and that the time bar on his petition 

should be relaxed, due to excusable neglect and because enforcement of the time 

bar would result in a fundamental injustice.

In November 2018, the PCR judge conducted an evidentiary hearing to 

address defendant's claims. Trial counsel testified at the evidentiary hearing. 

He stated his testimony was based on his recollection, as he no longer possessed

defendant's file, except for a copy of defendant's plea and sentencing transcripts. 

Trial counsel affirmed he had practiced law since 1976, and had "an active 

criminal practice," but also handled immigration and real estate cases when he 

represented defendant. Trial counsel testified he was aware of defendant's 

1

 State v. Slater, 198 N.J. 145 (2009).
4

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citizenship status at the time of the plea, and that it was his practice to "go over 

every item on the plea form" with a client. Therefore, he would have reviewed 

the citizenship question at Question 17. Further, trial counsel stated he would 

have circled "N/A" on Question 17, if immigration consequences were not 

relevant to the defendant. In this instance, trial counsel confirmed Question 17 

was answered by circling "Yes" and testified what when a client's response to 

this question was answered in the affirmative, it was his practice to "go over the 

possibilities or the potential of any dire consequences" resulting from the plea. 

Trial counsel also confirmed that at sentencing, he told the judge, "there is an 

immigration situation that may come up in the future. My client is a permanent 

resident. He's not a citizen of the United States. These charges may cause a 

problem with his status here, may eventually cause a deportation problem." 

Further, trial counsel stated he knew when he was negotiating defendant's plea 

agreement that defendant faced exposure for consecutive ten-year prison terms 

and mandatory compliance with the requirements of Megan's Law, N.J.S.A.

2C:7-1 to -23, on his second-degree charges.

Defendant also testified at the evidentiary hearing. On direct examination, 

he claimed he relied on his trial attorney's assurances he would not suffer 

immigration consequences as a result of his pleas. Additionally, he stated that 
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when he was "picked up by Immigration and Customs [Enforcement]" (ICE), he 

was unaware he "could be picked up by them." Defendant also testified he did 

not understand when he pled guilty in 1999 that there was a possibility of 

deportation because he was "just told that it wouldn't be a problem." Further, 

on redirect, defendant testified that if he had known he would be deported, or 

there was a possibility of deportation, he would not have entered his plea. He 

explained, "[i]f there was a certainty that I was going to be deported, I would 

have rather taken my chances and not build a life here, do everything that I did 

here . . . . I might as well have started somewhere else when I was younger."

Defendant attested he was currently married, had two children, was 

gainfully employed and paid taxes. When defendant was asked by PCR counsel 

how he came to be picked up by ICE, the assistant prosecutor objected. The 

PCR judge ruled, "it doesn't make any difference why or how he was picked up" 

by ICE. However, the judge also acknowledged defendant had "no subsequent 

record after this conviction." Following a brief discussion between counsel and 

the judge, PCR counsel concluded his direct examination by stating his client 

had "lived a law-abiding life" and he had wanted the court to "hear it from" 

defendant. 
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On cross-examination, defendant conceded he was well aware of his 

charges under the original indictments. Further, he admitted he "had an intimate 

situation with [his fourteen-year-old victim, S.S.]"

2 which "involved her 

genitals" and him. When defendant was asked about his second victim, C.J., the 

following exchange occurred:

Assistant Prosecutor: Alright, and isn't it a fact that you 

vaginally penetrated C.J.?

Defendant: Yes.

. . . .

Assistant Prosecutor: And if that witness, C.J. took the 

stand at . . . trial and said that you vaginally penetrated 

her, she'd be telling the truth, right?

Defendant: Yes.

Assistant Prosecutor: So - - and as to the other victim, 

S.S., if she got on the stand and she said that you 

vaginally penetrated her . . ., that would be the truth, 

wouldn't it?

Defendant: It depends on what you mean by . . . 

penetration - - again going back 20 years if, 19-yearsold, not understanding the legal system and having 

someone tell me that you have to go before the judge 

and say that you did this for your gratification—you 

know I just followed procedure. So, if you're asking 

me if that would be true, no, but I had to take a plea. 

2

 We reference the victims in this case by their initials to protect their privacy. 

R. 1:38-3(c)(9) and (12).
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A-2954-18

And in order to take a plea, I had to make certain 

statements. 

Assistant Prosecutor: But you just told this judge that 

you vaginally penetrated C.J.

Defendant: I - - I did, because I'm not going to tell you 

something that's not true.

Assistant Prosecutor: So you got a good deal. You 

were facing minimally ten years in State Prison for 

vaginally penetrating C.J. and you got 364 days as a 

condition of probation, correct?

Defendant: That's - - that was the term that I got, 

correct.

Additionally, on cross-examination, defendant acknowledged that trial 

counsel bargained down the State's original plea offer from a ten-year prison 

term, to a five-year term, before he obtained the State's offer for a 364-day jail 

term. Asked if that was a "pretty good" deal, defendant answered, "[y]es, it 

was." Defendant also conceded that when he answered Question 17 on his plea 

form, he could "speak and read English perfectly." The assistant prosecutor 

inquired if the "real reason why" defendant petitioned the court was "because 

you do not want to be deported, correct?" Defendant answered, "[o]f course I 

don't; that's right." 

The PCR judge posed additional questions to defendant. The judge asked 

whether trial counsel discussed defendant's potential immigration consequences 
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with him. Defendant answered in the negative, adding, "[n]o consequence at all 

was discussed." The judge then referred to PCR counsel's memorandum wherein 

he represented defendant's trial counsel inaccurately advised him he would not 

be deported. Defendant then shifted his testimony to state trial counsel 

misinforming him about the potential consequences of his plea. Finally, the 

PCR judge asked if defendant recalled trial counsel saying at sentencing that 

defendant's charges "may cause a problem with his status here" and "may 

eventually cause a deportation problem." Defendant acknowledged he 

remembered trial counsel making these statements. 

Following defendant's testimony, the PCR judge reserved his decision. 

On January 29, 2019, the judge denied defendant's PCR petition, finding it was 

time barred under Rule 3:22-12. The judge determined defendant failed to 

establish the seventeen-year delay in filing his petition was due to "excusable 

neglect" and there was "a reasonable probability that, if his factual assertions 

[were] true, enforcement of the time bar would result in a fundamental 

injustice." Additionally, referencing State v. Mitchell, 126 N.J. 565, 579-80 

(1992), the judge noted that the time bar should not be relaxed absent 

"'exceptional circumstances' such that strict adherence to the five-year time bar 

of [Rule] 3:22-12 would result in an injustice." 
9

A-2954-18

The judge also found defendant's defective plea and Slater arguments

could have been raised on direct appeal, so they were procedurally barred under 

Rule 3:22-4. Lastly, the judge concluded that even if defendant's petition was 

neither time barred nor procedurally barred, defendant failed to demonstrate his 

trial counsel was ineffective, pursuant to the two-pronged test set forth in 

Strickland v. Washington, 466 U.S. 668 (1984) (holding that in order to establish 

ineffective assistance of counsel, a defendant must demonstrate substandard 

representation by counsel and prejudice to the outcome as a result). 

On appeal, defendant raises the following arguments:

POINT ONE

THE COURT ERRED IN DENYING DEFENDANT 

THE RIGHT TO TESTIFY AT HIS EVIDENTIARY 

HEARING ABOUT THE REASON FOR HIS 

DELAYED FILING OF HIS PCR AND THEN

DENIED HIS PETITION BY SPECIFICALLY 

FINDING THAT HE HAD NOT GIVEN ANY 

EXPLANATION ON WHICH THE COURT COULD 

FIND A BASIS TO RELAX THE PROCEDURAL

TIME BAR UNDER [RULE] 3:22-12.

POINT TWO

THE PCR COURT'S ORDER SHOULD BE 

REVERSED AND THE MATTER REMANDED TO 

THE TRIAL COURT TO ALLOW THE DEFENDANT 

TO VACATE HIS GUILTY PLEA BECAUSE THE

PCR COURT ERRED IN DETERMINING THAT 

DEFENDANT DID NOT MEET HIS BURDEN 
10 A-2954-18

UNDER THE STRICKLAND STANDARD OF 

INEFFECTIVE ASSISTANCE OF COUNSEL. 

We find these arguments unconvincing, in light of the record and 

applicable legal standards.

Our review following an evidentiary hearing for PCR "is necessarily 

deferential to a PCR court's factual findings based on its review of live witness 

testimony." State v. Nash, 212 N.J. 518, 540 (2013). Where an evidentiary 

hearing has been held, we should not disturb "the PCR court's findings that are 

supported by sufficient credible evidence in the record." State v. Pierre, 223 

N.J. 560, 576 (2015) (citation omitted). We review any legal conclusions of the 

court de novo. Nash, 212 N.J. at 540-41. 

Regarding Point I, we note that Rule 3:22-12(a)(1)(A) generally requires 

that absent a defendant's "excusable neglect" and the "reasonable probability" 

that a "fundamental injustice" would result if "defendant's factual assertions 

were found to be true," a first PCR petition must be filed no more than five years 

"after the date of entry . . . of the judgment of conviction that is being 

challenged." When a PCR petition is filed more than five years after the

Judgment of Conviction,

a PCR judge has an independent, non-delegable duty to 

question the timeliness of the petition, and to require 

that defendant submit competent evidence to satisfy the 
11 A-2954-18

standards for relaxing the rule's time restrictions 

pursuant to Rule 3:22-12. Absent sufficient competent 

evidence to satisfy this standard, the court does not 

have the authority to review the merits of the claim.

[State v. Brown, 455 N.J. Super. 460, 470 (App. Div. 

2018).]

A claim of excusable neglect requires "more than simply providing a 

plausible explanation for a failure to file a timely PCR petition." State v. 

Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). To avoid application of 

the time bar in Rule 3:22-12(a)(1), the defendant must show the failure to file a 

petition within the time required was due to "compelling, extenuating" or 

"exceptional circumstances." State v. Brewster, 429 N.J. Super. 387, 400 (App. 

Div. 2013) (quoting State v. Milne, 178 N.J. 486, 492 (2004)). In determining 

whether the defendant has made the required showing for relaxation of the rule, 

the court must consider: (1) "the extent and cause of the delay"; (2) "the 

prejudice to the State"; and (3) "the importance of the petitioner'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) (quoting Mitchell, 126 N.J. 

at 580).

Seeking relaxation of the five-year time bar, defendant contends the PCR 

judge 
12 A-2954-18

erred by continuously cutting off PCR counsel's line of 

questioning and preventing testimony that would have 

specifically addressed when and how he first learned he 

was facing deportation consequences. This is directly 

relevant to the issue of excusable neglect. The fact that 

he never encountered any law enforcement for fifteen 

years supports his claim that he had no idea he was 

facing immigration consequences.

We are not persuaded. 

The transcript from the evidentiary hearing reveals that as soon as PCR 

counsel asked defendant how he came to be detained by ICE, the State objected. 

PCR counsel made clear he wanted to illustrate to the court that defendant had 

no contact with law enforcement after his 1999 conviction, until he was detained 

by ICE. The PCR judge promptly accepted the fact defendant had "no 

subsequent record after this conviction" so he had no contact with law 

enforcement from the time he was convicted until he was detained by ICE. But, 

as the judge correctly found, defendant's lack of contact with law enforcement 

following his conviction did not establish excusable neglect for the delayed 

filing of his PCR petition. 

As the plea form and sentencing transcript reflect, defendant was notified 

of the immigration consequences of his plea long before removal proceedings 

were commenced. Not only did defendant's answer to Question 17 on the plea 

form acknowledge his status, but at sentencing, trial counsel specifically noted 
13 A-2954-18

his concern that defendant could be deported once convicted. More 

importantly, as the PCR judge observed, even if trial counsel did not provide 

defendant with correct advice about the immigration consequences of his plea, 

defendant's assertions of ineffective assistance of counsel claims were 

insufficient to overcome the Rule 3:22-12 time bar. Referring to Brewster, 429 

N.J. Super. at 400, the PCR judge aptly noted inaccurate advice at the time of 

the plea does not establish excusable neglect, for if it did, "long-convicted 

defendants might routinely claim they did not learn about the deficiencies in 

counsel's advice on a variety of topics until after the five -year-limitation period 

had run." Also, "[a] defendant cannot decide to remain intentionally ignorant of 

the legal consequences of his decision as a means of establishing excusable 

neglect." Brown, 455 N.J. Super. at 471. 

We also are satisfied the PCR judge correctly found defendant failed to 

establish that enforcing the five-year time bar would result in a fundamental 

injustice. As our Supreme Court has stated, "[o]ur courts will find fundamental 

injustice when the judicial system has denied a 'defendant with fair proceedings 

leading to a just outcome' or when 'inadvertent errors mistakenly impacted a 

determination of guilt or otherwise wrought a miscarriage of justice.'" Nash, 

212 N.J. at 546 (quoting Mitchell, 126 N.J. at 587). However, here, the PCR 
14 A-2954-18

judge concluded defendant's purported lack of awareness of his immigration 

consequences did not implicate his guilt of the charges. See Brewster, 429 N.J. 

Super. at 401 (no "fundamental injustice" where defendant's "knowledge of the

risk of deportation did not affect the truth-finding function of the court"). 

Regarding Point II, we also are convinced the PCR court properly rejected 

defendant's ineffective assistance of counsel and Slater arguments. However, 

we part ways with the PCR judge's conclusion that defendant's Slater argument 

was procedurally barred, because a motion to withdraw a plea may be made at 

any time. State v. O'Donnell, 435 N.J. Super. 351, 368 (App. Div. 2014). 

However, we affirm the court's denial of the plea withdrawal for different 

reasons. See State v. Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011) 

(recognizing that an appellate court is "free to affirm the trial court's decision 

on grounds different from those relied upon by the trial court").

As a threshold matter, we observe that different rights are implicated by a 

petition for PCR based on ineffective assistance of counsel and an application 

to withdraw a guilty plea. O'Donnell, 435 N.J. Super. at 368. "To establish a 

prima facie claim of ineffective assistance of counsel, a defendant must 

demonstrate [a] reasonable likelihood of succe[ss] under the test set forth in 

Strickland[], 466 U.S. . . . at 694 . . ., which we adopted in State v. Fritz, 105 
15 A-2954-18

N.J. 42, 58 (1987)." State v. Preciose, 129 N.J. 451, 463 (1992). Under the first 

Strickland prong, a "defendant must show that [defense] counsel's performance 

was deficient." Strickland, 466 U.S. at 687. Under the second prong, a 

defendant must demonstrate "a reasonable probability that, but for counsel's 

unprofessional errors, the result of the proceeding would have been different."

Id. at 694. In demonstrating that counsel's performance was deficient under the 

first prong of Strickland, a defendant must overcome "a strong presumption that 

counsel's conduct falls within the wide range of reasonable professional 

assistance." Fritz, 105 N.J. at 52 (quoting Strickland, 466 U.S. at 689). Further, 

because prejudice is not presumed, ibid., a defendant must demonstrate "how 

specific errors of counsel undermined the reliability" of the proceeding, United 

States v. Cronic, 466 U.S. 648, 659 n.26 (1984).

To justify vacating a guilty plea premised on ineffective assistance of 

counsel, a defendant must satisfy a modified Strickland standard.

When a guilty plea is part of the equation, . . . a 

defendant must show that (i) counsel's assistance was 

not "within the range of competence demanded of 

attorneys in criminal cases" and (ii) "that there is a 

reasonable probability that, but for counsel's errors, 

[the defendant] would not have pled guilty and would 

have insisted on going to trial."
16 A-2954-18

[State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) 

(quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)

(alteration in original)).]

Moreover, "a petitioner must convince the court that a decision to reject the plea 

bargain would have been rational under the circumstances." Padilla v. 

Kentucky, 559 U.S. 356, 372 (2010). 

On the other hand, defendant's motion to withdraw his plea must be 

separately considered under the standard enunciated in Slater. The Court held:

trial judges are to consider and balance four factors in 

evaluating motions 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.

[Slater, 198 N.J. at 157-58 (citations omitted).]

The Slater Court further held:

The same factors are to be used for motions filed either 

before or after sentencing, but the timing of the motion 

will trigger different burdens of proof for the movant: 

pre-sentence motions to withdraw a plea are governed 

by the "interest of justice" standard in Rule 3:9-3(e), 

while post-sentence motions are subject to the 

"manifest injustice" standard in Rule 3:21-1. 

[Id. at 158.]
17 A-2954-18

Guided by these distinct principles, we first address defendant's claim of 

error regarding the PCR judge's analysis of his ineffective assistance of counsel 

claims. As we have noted, the PCR judge considered the merits of defendant's 

ineffective assistance of counsel claims, notwithstanding the fact defendant's 

application was time barred. Finding defendant's case was "governed by prePadilla law," the judge noted defendant was required under the first Strickland

prong to demonstrate that trial counsel affirmatively misled him about the 

immigration consequences of his guilty pleas. The judge determined defendant's 

proofs fell short in this regard, pointing to defendant's plea form answer at 

Question 17, as well as his testimony at the plea hearing when he confirmed he 

had no questions for his attorney, he was satisfied with counsel's services, and 

was not promised anything that was not placed on the record. Further, the judge 

credited trial counsel's testimony that he discussed defendant's immigration 

consequences with him and also noted those consequences on the record at 

sentencing. Further, the judge found defendant failed to satisfy the second 

Strickland prong. The judge concluded defendant's claim that he would have 

rejected the State's offer had he known of his immigration consequences of his 

plea was a "bald assertion." He added that rejecting the State's offer would have 

been "absolutely irrational under the circumstances," in light of the seriousness 
18 A-2954-18

of the charges pending against him, his exposure for significant prison time, and 

"certain deportation upon completion of any custodial sentence." We perceive 

no basis to disturb the judge's decision in this regard, as it was amply supported 

by the credible evidence in the record. 

Finally, in considering defendant's motion to withdraw his plea, although 

the PCR judge did not extensively analyze the Slater factors in his opinion, he 

explicitly found defendant did not assert a colorable claim of innocence. This 

finding is supported by defendant's own admissions during the evidentiary 

hearing, in terms of his criminal acts against his victims. Moreover, the nature 

and strength of defendant's reasons for withdrawing his pleas were not 

convincing. Indeed, the judge found defendant's allegations "not credible" and 

his testimony "unsupported," given what was set forth in the face of 

"documentary evidence – e.g. the plea form; plea transcript; and sentencing 

transcript." Further, defendant candidly admitted on cross-examination that the 

"real reason why" he petitioned the court was "because [he did] do not want to 

be deported." Also, the judge noted defendant's knowledge of his deportation 

risk did not affect the "truth-finding function" of the court when it accepted his 

plea. 
19 A-2954-18

Regarding the third Slater factor, there is no question but that a plea 

bargain existed in this matter. As to the final Slater factor, the PCR judge noted 

that "[a]s time passes, justice becomes more elusive and the necessity for 

preserving finality and certainty of judgments increases." The judge also found 

that "allowing the Petitioner to proceed, seventeen years post-conviction, would 

greatly prejudice the State." Additionally, without holding defendant to the 

more rigorous "manifest injustice" standard contemplated for post-sentencing 

Slater motions, the judge concluded defendant failed to demonstrate an 

"injustice" would result "if relief from [a] procedural bar was not obtained." 

Under these circumstances and given the credible testimony trial counsel 

presented at the evidentiary, we perceive no basis to second-guess the judge's 

decision to deny defendant's Slater application.

To the extent we have not specifically addressed any of defendant's 

remaining arguments, we find them to be without sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.