SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4642-18

STATE OF NEW JERSEY 

Plaintiff-Respondent,

v.

ARTURO ESPICHAN, 

Defendant-Appellant.

_______________________

Submitted December 1, 2020 – Decided 

Before Judges Fisher and Moynihan.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 96-12-3980.

Joseph E. Krakora, Public Defender, attorney for 

appellant (David J. Reich, Designated Counsel, on the 

brief).

Theodore N. Stephens II, Acting Essex County 

Prosecutor, attorney for respondent (Barbara A.

Rosenkrans, 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NOT FOR PUBLICATION WITHOUT THE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.

February 16, 2021
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A-4642-18

Defendant Arturo Espichan pleaded guilty to second-degree conspiracy to 

commit robbery and aggravated sexual assault, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-

1 and N.J.S.A. 2C:14-2; third-degree criminal restraint,1 N.J.S.A. 2C: 13-2; firstdegree robbery, N.J.S.A. 2C:15-1; second-degree aggravated assault, N.J.S.A. 

2C:12-1(b)(1); and third-degree unlawful possession of a weapon, N.J.S.A. 

2C:39-4(d).2 Facing deportation to his native Peru, he filed a petition for postconviction relief (PCR) more than twenty years after he was sentenced. He 

appeals from the denial of that petition, arguing: 

POINT I

[DEFENDANT] HAS ESTABLISHED A PRIMA 

FACIE CASE THAT HIS INITIAL COUNSEL WAS 

INEFFECTIVE IN FAILING TO ADEQUATELY 

REVIEW WITH HIM THE GUILTY PLEA FORM 

PROVISION REGARDING DEPORTATION.

POINT II

[DEFENDANT] HAS ESTABLISHED A PRIMA 

FACIE CASE THAT HE WAS PREJUDICED BY HIS 

COUNSEL'S DEFECTIVE PERFORMNCE. 

1 Count two was amended from first-degree kidnapping, N.J.S.A. 2C:13-

1(b)(1).

2 As part of the plea agreement, the State agreed to dismiss: first-degree 

attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1; first-degree 

aggravated sexual assault, N.J.S.A. 2C:14-2(a); third-degree terroristic threats, 

N.J.S.A. 2C:12-3; and fourth-degree unlawful possession of a weapon, N.J.S.A. 

2C:39-5(d). 
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POINT III

[DEFENDANT] IS ENTITLED TO AN 

EVIDENTIARY HEARING.

POINT IV

[DEFENDANT]'S PETITION SHOULD NOT BE 

TIME-BARRED. 

Reviewing the factual inferences drawn by the PCR judge and his legal 

conclusions de novo because he did not conduct an evidentiary hearing, State v. 

Blake, 444 N.J. Super. 285, 294 (App. Div. 2016), and considering "the facts in 

the light most favorable to [the] defendant," State v. Preciose, 129 N.J. 451, 462-

63 (1992), we affirm because defendant did not establish a prima facie case of 

ineffective assistance of counsel under the test set forth in Strickland v. 

Washington, 466 U.S. 668 (1984),

3

to warrant an evidentiary hearing, Preciose, 

3

 To establish a PCR claim of ineffective assistance of counsel, a defendant 

must satisfy the two-prong test formulated in Strickland, 466 U.S. at 687, and 

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

"showing that counsel made errors so serious that counsel was not functioning 

as the 'counsel' guaranteed . . . by the Sixth Amendment," then by proving he 

suffered prejudice due to counsel's deficient performance, Strickland, 466 U.S. 

at 687; see also Fritz, 105 N.J. at 52. Defendant must show by a "reasonable 

probability" that the deficient performance affected the outcome. Fritz, 105 N.J. 

at 58.
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129 N.J. at 462-63; see also R. 3:22-10(b), and his PCR petition is time-barred, 

R. 3:22-12(a)(1). 

Although the United States Supreme Court held in Padilla v. Kentucky, 

559 U.S. 356, 368-69 (2010), that the Sixth Amendment obligation to render 

effective assistance requires counsel to inform clients of the possible 

immigration consequences of entering a guilty plea, our Supreme Court, in State 

v. Gaitan, 209 N.J. 339, 372-73 (2012), held that Padilla had only prospective 

application because it established a new rule of law, see also Chaidez v. United 

States, 568 U.S. 342, 357-58 (2013).

At the time defendant entered his plea in 1997, his counsel was not 

required to give any advice about the deportation consequences of pleading 

guilty; a defendant could, however, establish the first prong of the Strickland/ 

Fritz test by showing his counsel gave false or affirmatively misleading advice 

about the deportation consequences of pleading guilty. State v. Nuñez-Valdéz, 

200 N.J. 129, 140-42 (2009). "Only if defendant's attorney affirmatively gave 

incorrect advice about the deportation consequences of his guilty plea might he 

be entitled to set aside his conviction in accordance with the holding of NuñezValdéz." State v. Brewster, 429 N.J. Super. 387, 394-95 (App. Div. 2013).
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As the PCR judge noted, defendant does not claim his plea counsel gave 

him any advice regarding immigration consequences. In his merits brief, he 

acknowledged his PCR petition alleged his plea counsel "never told [him] that 

entering the [guilty] plea would subject [him] to mandatory removal from the 

United States," and that his PCR counsel argued that his plea counsel "had 

provided ineffective assistance in failing to advise [defendant] of the 

immigration consequences of the guilty plea." Contrary to defendant's claim, 

his plea counsel was not ineffective under the standard in effect at the time 

defendant entered his plea. See Gaitan, 209 N.J. at 372.

Further, defendant's contention that he "did not have notice of the 

immigration consequences of his guilty plea until almost [twenty] years later[] 

when he received that advice from [U.S. Immigration and Customs Enforcement 

(ICE)] officials who told him he would be deported as a result of his earlier 

plea," is belied by the record. Unlike the plea form in State v. Antuna, 446 N.J. 

Super. 595 (App. Div. 2016), upon which defendant relies to support his 

argument, the answer, "yes," is circled in response to question seventeen of 

defendant's plea form that asked: "Do you understand that if you are not a 

United States citizen or national, you may be deported by virtue of your guilty 

plea?" Defendant's initials appear at the bottom of the page. While defendant 
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now contests that the initials are his, in his PCR petition—verified as true and 

signed by defendant—defendant concedes he signed the plea form.4 Like the 

Court in Gaitan, 209 N.J. at 375, "[w]e are unable to conclude that following the 

then-existing plea form resulted in misadvice being provided to [defendant], 

particularly where there is no evidence or claim that, at the time, defendant 

sought more information about immigration consequences and was then 

misinformed by counsel."

The PCR judge correctly held defendant was not entitled to an evidentiary 

hearing because he did not make a prima facie showing of entitlement to such 

relief by demonstrating "a reasonable likelihood that his or her claim will 

ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (1997); 

see also Preciose, 129 N.J. at 463.

In that defendant failed to establish that his plea counsel rendered 

ineffective assistance, we need not examine whether defendant also established 

"that there is a reasonable probability that, but for counsel's errors, [the 

defendant] would not have pleaded guilty and would have insisted on going to 

trial," Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also Nuñez-Valdéz, 200 

4

 The plea transcript was not provided with in the appellate record. In his PCR 

petition, defendant informs that "those records were destroyed" in the passage 

of time between the 1997 plea hearing and the filing of his PCR.
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N.J. at 139, and that his "decision to reject the plea bargain would have been 

rational under the circumstances," Padilla v. Kentucky, 559 U.S. at 372. 

Although defendant was ultimately sentenced to a twelve-year prison term with 

four years of parole ineligibility when he faced between fifteen and thirty years 

on the first-degree kidnapping charge alone, N.J.S.A. 2C:13-1(c)(1), the absence 

of a plea transcript hampers our review of that issue. See Lee v. United States,

582 U.S. ___, 137 S.Ct. 1958, 1967 (2017) (holding "[c]ourts should not upset 

a plea solely because of post hoc assertions from a defendant about how he 

would have pleaded but for his attorney's deficiencies" and "[j]udges should 

instead look to contemporaneous evidence to substantiate a defendant's 

expressed preferences"); Strickland, 466 U.S. at 687, 694; State v. DiFrisco, 137 

N.J. 434, 457 (1994). 

We also concur with the PCR judge's determination that defendant's 

petition was time barred. A first petition for PCR must be filed within five years 

of "the date of entry[,] pursuant to Rule 3:21-5[,] of the judgment of conviction 

that is being challenged." 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, Brewster, 429 N.J. Super. at 400; R. 3:22-12(a)(1)(A); or the petition is 
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filed under Rule 3:22-12(a)(1)(B) within one year from the date of discovery of 

that factual predicate on which relief is sought "if that factual predicate could 

not have been discovered earlier through the exercise of reasonable diligence,"

R. 3:22-12(a)(2)(B). "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. Afanador, 151 N.J. 41, 52 (1997). "[A] court 

should relax Rule 3:22-12's bar only under exceptional circumstances. The court 

should consider the extent and cause of the delay, the prejudice to the State, and 

the importance of the petitioner's claim in determining whether there has been 

an 'injustice' sufficient to relax the time limits." State v. Mitchell, 126 N.J. 565, 

580 (1992).

Defendant filed his PCR petition in October 2017, over twenty years after 

the sentencing judge filed the judgment of conviction in April 1997. We reject 

defendant's argument that he established excusable neglect because he did not 

learn that he would be deported until he was informed by ICE officials, and he 

"cannot be faulted for failing to take action concerning an issue of which he was 

unaware." Actually, he can. "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). Similarly, a 
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defendant's "lack[] [of] sophistication in the law" is not excusable neglect. State 

v. Murray, 162 N.J. 240, 246 (2000). Nor does lack of factual knowledge

amount to excusable neglect. See State v. Cummings, 321 N.J. Super. 154, 166

(App. Div. 1999).

We also note defendant concedes in his PCR petition and his merits brief

that he was taken into ICE custody on August 11, 2016. Knowing that he faced 

deportation, he still did not file the PCR petition for over fourteen months. He 

thus is not entitled to relief under Rule 3:22-12(a)(1)(B) because he did not file 

within one year of the date he knew of the factual predicate for his PCR petition.

In rejecting defendant's claim of excusable neglect, we also consider the 

prejudice to the State. Obviously if it were required to reconstruct this matter 

for trial, the State would be prejudiced by defendant's significant filing delay. 

Our Supreme Court recognized:

[a]s time passes after conviction, the difficulties 

associated with a fair and accurate reassessment of the 

critical events multiply. Achieving "justice" years after 

the fact may be more an illusory temptation than a 

plausibly attainable goal when memories have dimmed, 

witnesses have died or disappeared, and evidence is lost 

or unattainable. . . . Moreover, the [time-bar] Rule

serves to respect the need for achieving finality of 

judgments and to allay the uncertainty associated with 

an unlimited possibility of relitigation. The Rule

therefore strongly encourages those believing they have 

grounds for post-conviction relief to bring their claims 
10 A-4642-18

swiftly, and discourages them from sitting on their 

rights until it is too late for a court to render justice.

[Mitchell, 126 N.J. at 575-76.]

Defendant is not entitled to relief from the time bar.

To the extent defendant's remaining arguments are not addressed, we 

determine they are without sufficient merit to warrant discussion in a written 

opinion. R. 2:11-3(e)(2).

Affirmed.