STATE OF NEW JERSEY VS. LINCOLN J. SMITH (06-02-0218, MORRIS COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2834-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

LINCOLN J. SMITH,

     Defendant-Appellant.
________________________

                   Submitted March 16, 2021 – Decided June 23, 2021

                   Before Judges Gilson and Moynihan.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Morris County, Indictment No. 06-02-0218.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (John J. Bannan, Designated Counsel, on the
                   brief).

                   Robert J. Carroll, Morris County Acting Prosecutor,
                   attorney for respondent (Paula Jordao, Special Deputy
                   Attorney General/Acting Assistant Prosecutor, on the
                   brief).

PER CURIAM
      Defendant Lincoln J. Smith and a female were observed by a Morristown

police officer—to whom both were known—engage in a hand-to-hand sale of a

suspected controlled dangerous substance (CDS). After the female was arrested

and admitted to police she purchased cocaine from defendant, and a search of

the vehicle from which defendant was seen exiting revealed more suspected

CDS, defendant was indicted for: third-degree aggravated assault of a law

enforcement officer, N.J.S.A. 2C:12-1(b)(5) (count one); third-degree resisting

arrest, N.J.S.A. 2C:29-2(a) (count two); third-degree conspiracy to possess

CDS, N.J.S.A. 2C:5-2(a)(1) and 2C:35-10(a)(1) (count three); third-degree

possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count four); third-degree

possession with intent to distribute CDS, N.J.S.A. 2C:35-5(a)(1) and 2C:35-

5(b)(3) (count five); third-degree conspiracy to possess with intent to distribute

CDS, N.J.S.A. 2C:5-2(a)(1), 2C:35-5(a)(1) and 2C:35-5(b)(3) (count six);

second-degree possession with intent to distribute CDS within 500 feet of public

property, N.J.S.A. 2C:35-7.1 (count seven); he was also charged in a complaint-

warrant with possession of marijuana, N.J.S.A. 2C:35-10(a)(4). He pleaded

guilty to second-degree possession of cocaine with intent to distribute within

500 feet of a public park, N.J.S.A. 2C:35-7.1, and was sentenced on August 29,

2006, in accordance with the plea agreement—under which the State agreed not


                                        2                                   A-2834-19
to seek an extended-term sentence or a period of parole ineligibility—to a five-

year prison term; all other charges were dismissed. He did not file a direct

appeal.

       The Department of Homeland Security initiated removal proceedings

against defendant, a citizen of Jamaica who entered the United States in 1987,

by serving him with a Notice to Appear in August 2017. See Smith v. Barr, 

444

F. Supp. 3d 1289

, 1291-92 (N.D. Okla. 2020), appeal dismissed, No. 20-5053,

2020 U.S. App. LEXIS 36684

 (10th Cir. Aug. 20, 2020). Immigration and

Customs Enforcement (ICE) agents took defendant into custody on or about

August 21, 2017. 

Id. at 1292

.

       On January 2, 2019, defendant filed a pro se petition for post-conviction

relief (PCR) 1 which was denied by the PCR court. He appeals from that order,

arguing:

             POINT I

             BECAUSE       [DEFENDANT]       RECEIVED
             INEFFECTIVE ASSISTANCE OF COUNSEL, THE
             PCR    COURT     ERRED     IN    DENYING
             [DEFENDANT'S] PETITION FOR PCR.

                   (A)   Legal Standards Governing Applications
                         [f]or Post-Conviction Relief[.]


1
    The PCR petition was dated November 18, 2018.

                                       3                                  A-2834-19
                  (B)   Defense Counsel [W]as Ineffective [f]or
                        Among Other Reasons [i]n Failing to
                        Advise [Defendant] that Pleading Guilty
                        [M]ay Result in His Deportation.

            POINT II

            BECAUSE DEFENDANT DID NOT MAKE A
            KNOWING, INTELLIGENT, AND VOLUNTARY
            PLEA, THE PCR COURT ERRED IN DENYING
            DEFENDANT'S PETITION FOR PCR.

                  (A)   Legal Standards Governing Applications
                        for Post-Conviction Relief.

                  (B)   Defendant Did Not Make a Knowing,
                        Intelligent, and Voluntary Guilty Plea.

            POINT III

            IN THE ALTERNATIVE, BECAUSE THERE ARE
            GENUINE ISSUES OF MATERIAL FACT IN
            DISPUTE, THE PCR COURT ERRED IN DENYING
            AN EVIDENTIARY HEARING.

                  (A)   Legal Standards Governing Post-
                        Conviction Relief Evidentiary Hearings[.]

                  (B)   In the Alternative, [Defendant]           [I]s
                        Entitled to an Evidentiary Hearing.

      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" defendant, State v. Preciose, 

129 N.J. 451

, 463

                                      4                                  A-2834-19
(1992), we affirm because his PCR petition is time-barred, R. 3:22-12(a)(1), and

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), to

warrant an evidentiary hearing, Preciose, 

129 N.J. at 462-63

; see also R. 3:22-

10(b).

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

satisfy the two-part Strickland test: (1) "counsel made errors so serious that

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

Sixth Amendment[,]" and (2) "the deficient performance prejudiced the

defense." Strickland, 

466 U.S. at 687

; accord State v. Fritz, 

105 N.J. 42

, 57-58

(1987). On petitions brought by a defendant who has entered a guilty plea,

defendant satisfies the first Strickland prong if he or she can show that counsel's

representation fell short of the prevailing norms of the legal community. Padilla

v. Kentucky, 

559 U.S. 356

, 366-67 (2010).           Defendant proves the second

component of Strickland by establishing "a reasonable probability that"

defendant "would not have pled guilty," but for counsel's errors. State v. Gaitan,

209 N.J. 339

, 351 (2012) (quoting State v. Nuñez-Valdéz, 

200 N.J. 129

, 139

(2009)).




                                          5                                   A-2834-19
      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, R. 3:22-

12(a)(1)(A); see also State v. Brewster, 

429 N.J. Super. 387

, 400 (App. Div.

2013), or the petition is filed under Rule 3:22-12(a)(1)(B) within one year from

the date of discovery of the 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 January 2019, over twelve years after

the sentencing judge filed the judgment of conviction in August 2006. Although



                                         6                                    A-2834-19
the sentencing judge neglected to remind defendant of the five-year window to

file a PCR petition, "[i]gnorance 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 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 was taken into ICE custody on August 21, 2017.

Smith, 444 F. Supp. at 1292. Knowing he faced deportation, he still did not file

the PCR petition for over sixteen 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

                                        7                                   A-2834-19
            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
            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 argues the time bar "should be relaxed because [the] Sixth

Amendment violation [causing him to be unaware of the 'deportation

consequences' of his plea] works a fundamental injustice." Counsel, however,

was not ineffective. Accordingly, defendant is not entitled to relief from the

time bar.

      We address the merits of defendant's PCR claims starting with his claim

he was misadvised as to the immigration consequences of his plea. Although

the United States Supreme Court held in Padilla, 

559 U.S. at 368-69,

 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 Gaitan, 

209 N.J. at 372-73,

 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).

                                        8                                A-2834-19
      At the time defendant entered his plea in 2006, 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. See Nuñez-Valdéz, 

200

N.J. at 140-42

. "Only if [a] 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 Nuñez-Valdéz."

Brewster, 429 N.J. Super. at 394-95.

      Defendant's plea counsel did not misadvise defendant about his

immigration status because defendant maintained he was a United States citizen.

During the plea colloquy, in response to plea counsel's questions, defendant

confirmed the questions counsel was going to review were "the same questions

[they] went through out in the hallway"; defendant acknowledged the circled

answers on the plea form were his. At that time, question seventeen of the

standard plea form 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?" The

circled answer was "N/A." Counsel also asked, "All right, you are a United

States citizen, so you don't have to worry about being deported. You don't hold


                                       9                                   A-2834-19
public office. You're not going to lose your job as a result of this. Is that

correct?" Defendant answered, "Yes."

         At sentencing, plea counsel represented to the court that he had received

a copy of the presentence report and "had a very long time on Friday to review

it.   Everything's accurate except, obviously, the jail credit."        Both the

presentence report and Uniform Defendant Intake list "QUEENS, NY" as

defendant's place of birth. The "US" box designating defendant's citizenship on

the Uniform Defendant Intake is checked, and the form provides defendant was

twenty-eight years old and had resided in the United States for twenty-eight

years.

         We note defendant did not appear for his presentence interview despite

mailed notices to each of defendant's two last known addresses and the probation

officer's reminder call to defendant's wife. As conceded in defendant's merits

brief, defendant's wife "advised the probation officer that she would tell

[defendant] to call back for his interview." And defendant did not correct any

information contained in the presentence report when he exercised his right of

allocution at sentencing.

         Under the circumstances, plea counsel did not misadvise defendant as to

deportation consequences because, as admitted in defendant's merits brief, "[t]he


                                        10                                  A-2834-19
plea transcript proves [plea] counsel was unaware that [defendant] was not a

U.S. [c]itizen." Counsel's advice was based on defendant's representation that

he was a United States citizen.

      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 372-73

. As in Gaitan, "there is no evidence or claim that, at the time,

defendant sought more information about immigration consequences and was

then misinformed by counsel." 

Id. at 375

.

      Cognately, we determine there is insufficient merit to defendant's claim

that counsel was ineffective for failing to investigate his citizenship status to

warrant discussion. R. 2:11-3(e)(2). There is no reason in the record why plea

counsel would have or should have doubted defendant's representation that he

was a United States citizen. Nothing in the record establishes that defendant

raised to plea counsel any question as to his citizenship. Although defendant

points out a Morristown Police Department arrest report lists "KINGSTON,

JAMAICA" as defendant's place of birth, that report does not designate

defendant's citizenship; and the place of birth is not indicative of citizenship

status.




                                      11                                   A-2834-19
      Defendant also contends "[t]he PCR [court] did not address [his]

arguments contained in his pro se PCR petition that [plea] counsel was

ineffective in failing to investigate his case, review discovery with him, explain

his legal options, and . . . file pre[]trial motions." We would ordinarily remand

a matter in which the trial court did not set forth its findings of fact and

conclusions of law, see R. 1:7-4(a), and address each point raised in a PCR

petition, see R. 3:22-11. But defendant's bald claims are insufficient to establish

a claim of ineffective assistance of counsel. A defendant

            must do more than make bald assertions that he was
            denied the effective assistance of counsel. He must
            allege facts sufficient to demonstrate counsel's alleged
            substandard performance. Thus, when a petitioner
            claims his trial attorney inadequately investigated his
            case, he must assert the facts that an investigation
            would have revealed, supported by affidavits or
            certifications based upon the personal knowledge of the
            affiant or the person making the certification.

            [Cummings, 

321 N.J. Super. at 170

.]

Similarly, if a defendant claims trial counsel failed to pursue certain motions,

he must specify those motions. Here, defendant has failed to provide such

certifications or affidavits setting forth any facts in support of his bald

assertions. And, defendant's arguments about plea counsel's failure to review

discovery and explain his legal options are without sufficient merit to warrant


                                       12                                    A-2834-19
discussion. R. 2:11-3(e)(2). Defendant's admissions during his plea colloquy

about his interactions with counsel and his answers on the plea form belie those

contentions.

      Furthermore, defendant did not establish a prima facie case to warrant an

evidentiary hearing. A "defendant must allege specific facts and evidence

supporting his allegations," State v. Porter, 

216 N.J. 343

, 355 (2013), and "do

more than make bald assertions that he was denied the effective assistance of

counsel" to establish a prima facie claim, Cummings, 

321 N.J. Super. at 170

.

"Defendant may not create a genuine issue of fact, warranting an evidentiary

hearing, by contradicting his prior statements without explanation." Blake, 444

N.J. Super. at 299. Defendant's bald averments, belied by the record, do not

establish a prima facie claim. And, an evidentiary hearing is not to be used to

explore PCR claims. See State v. Marshall, 

148 N.J. 89

, 157-58 (1997).

      In that section of his merits brief arguing defendant's plea was not

knowing, intelligent and voluntary, defendant refers to portions of his

certification submitted with his PCR petition to support that argument:

               Defendant certified that "[m]y attorney also pressured
               me to plead guilty which was part of my confusion. I
               was never advised I could be deported. [My attorney]
               said deportation was not an issue in my case. This was
               erroneous advice." He continued that "I felt rushed
               throughout my matter and was never advised I faced

                                        13                                A-2834-19
              deportation." Defendant concluded that "[m]y plea was
              not knowing [(sic)] and voluntarily entered because I
              was pressured to plead guilty and misadvised regarding
              the immigration consequences of my pleas."

              [(First, second and third alterations in original.)]

In his brief to the PCR court, however, defendant argued only that his plea was

not knowingly and voluntarily entered "[a]s a consequence of [plea counsel] not

advising him he faced mandatory deportation." In light of our determination

that plea counsel did not misadvise defendant as to the immigration

consequences of his plea, there are no supported grounds for defendant's

arguments. Again, the record of the plea hearing belies defendant's other bald

assertions.

      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.




                                         14                              A-2834-19

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