NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0577-18T1 STATE OF NEW JERSEY, Plaintiff-Respondent, v. CLARA E. SIERRA, Defendant-Appellant. _______________________ Submitted June 30, 2020 – Decided July 20, 2020 Before Judges Vernoia and Rose. On appeal from the Superior Court of New Jersey, Law Division, Union County, Accusation No. 04-10-1295. Joseph E. Krakora, Public Defender, attorney for appellant (Monique D. Moyse, Designated Counsel, on the brief). Lyndsay V. Ruotolo, Acting Union County Prosecutor, attorney for respondent (Milton Samuel Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM Defendant Clara Sierra, a non-citizen of the United States, appeals from a November 30, 2017 order denying her petition for post-conviction relief (PCR) without an evidentiary hearing. On appeal, defendant raises the following points for our consideration: POINT ONE [DEFENDANT] IS ENTITLED TO AN EVIDENTIARY HEARING ON H[ER] CLAIM THAT HER ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR GIVING HER AFFIRMATIVE MISADVICE ABOUT THE DEPORTATION CONSEQUENCES OF HER [GUILTY] PLEA. POINT TWO THE PCR COURT ERRONEOUSLY RULED THAT [DEFENDANT]'S PETITION WAS TIME-BARRED BECAUSE ANY DELAY IN FILING THE PETITION WAS DUE TO EXCUSABLE NEGLECT AND THERE IS A REASONABLE PROBABILITY THAT IF . . . DEFENDANT'S FACTUAL ASSERTIONS WERE FOUND TO BE TRUE, ENFORCEMENT OF THE TIME BAR WOULD RESULT IN A FUNDAMENTAL INJUSTICE. We reject these contentions and affirm. The facts and procedural history are straightforward and set forth at length in the PCR judge's decision. In summary, on October 13, 2004, defendant pled guilty to a one-count accusation, charging third-degree intent to distribute a A-0577-18T1 2 controlled dangerous substance (CDS), N.J.S.A. 2C:35-5. On April 8, 2005, defendant was sentenced before another judge to time served and a one-year probationary term; the remaining six drug charges were dismissed pursuant to the terms of the negotiated plea agreement. Defendant did not file a direct appeal. Thereafter, defendant violated probation on two separate occasions. In May 2006, the original sentencing judge extended defendant's probationary term on the first violation. In April 2007, the judge discharged defendant from probation without improvement and sentenced her to a county jail term. In 2011, the United States Department of Homeland Security advised defendant she was subject to removal from the United States based on the judgment of conviction (JOC) entered in April 2007. On November 14, 2016, defendant filed a pro se petition and brief for PCR in the trial court. Defendant claimed she was denied the effective assistance of counsel because her attorney failed to inform her about the immigration consequences of her plea. Assigned counsel filed an amended petition and brief, expounding upon those arguments. PCR counsel also asserted the petition was A-0577-18T1 3 not barred by Rule ...
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