NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2542-17T1 STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSE BAYONA-CASTILLO, Defendant-Appellant. Submitted April 28, 2020 – Decided June 19, 2020 Before Judges Hoffman and Currier. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-01-0067. Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Mark Niedziela, Assistant Prosecutor, of counsel and on the brief). PER CURIAM Defendant Jose Bayona-Castillo appeals from the May 26, 2017 denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. 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. In January 2003, defendant was charged in an indictment with third- degree possession of controlled dangerous substance (CDS), namely cocaine, N.J.S.A. 2C:35-10(a)(1); second-degree possession of CDS, namely cocaine, with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(2); fourth-degree possession with intent to distribute drug paraphernalia, N.J.S.A. 2C:36-3; fourth-degree possession of CDS, namely marijuana, N.J.S.A. 2C:35-10(a)(3); and third-degree possession of CDS, namely marijuana, with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(11). Several months later, in March 2003, defendant pled guilty to second- degree possession of CDS with intent to distribute. During the plea hearing, defense counsel inquired of defendant whether he was a U.S. citizen. Defendant responded "no" and advised he was a permanent resident. The court inquired whether defendant had reviewed all of the questions on the plea form with his attorney, whether he understood the questions and whether his answers were truthful. Defendant replied affirmatively and stated A-2542-17T1 2 he had signed the plea form voluntarily. He also stated that his plea was uncoerced. Still addressing defendant, the court stated "I notice you are not a U.S. citizen. What are you, a permanent resident?" Defendant replied "[y]es." The court continued, "You are pleading guilty to a second[-]degree offense. I don’t know how that will affect your immigration status; it may affect it, it may not affect it. But my concern is that you are aware that by pleading guilty, you could possibly be deported. Are you aware of that?" Defendant replied "[y]es." In accordance with the plea agreement, defendant was sentenced to a third-degree sentence of three years of probation, conditioned on his continued attendance at an out-patient substance abuse program and Alcoholics and Narcotics Anonymous meetings. The court also required defendant to remain employed. After defendant violated his probation in 2004, he was continued on probation and sentenced to 364 days in jail. A subsequent motion to reconsider his sentence was denied. Defendant did ...
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