NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0321-19T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. BYRON MUNEZ-RIVERA, Defendant-Appellant. ________________________ Argued September 29, 2020 – Decided November 20, 2020 Before Judges Fasciale and Susswein. On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 05-02- 0052. William A. Proetta argued the cause for appellant (Proetta, Oliver & Fay, attorneys; William A. Proetta, on the brief). Jeffrey L. Weinstein, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Michael J. Williams, Acting Hunterdon County Prosecutor, attorney; Jeffrey L. Weinstein, of counsel and on the briefs). PER CURIAM Defendant, Byron Munez Rivera, appeals from the August 16, 2019 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing.1 He contends his trial counsel rendered ineffective assistance by misinforming him of the immigration consequences of his guilty plea. Judge Angela F. Borkowski denied defendant's petition both as time-barred under Rule 3:22-12 and on the merits, finding defendant failed to establish either prong of the two-pronged test established in Strickland v. Washington.2 After carefully reviewing the record in view of the governing legal principles, we affirm substantially for the reasons set forth in Judge Borkowski's thorough twenty - eight page decision. In 2005, defendant pled guilty to the third-degree crime of uttering a document that falsely purports to be driver's license, N.J.S.A. 2C:21-2.1(c). In accordance with the plea agreement, the State dismissed a second-degree charge for unlawful use of personal identifying information of another, N.J.S.A. 2C:21 - 1 Although the PCR court did not grant an evidentiary hearing on the merits of defendant's ineffective assistance claim, the court at oral argument heard testimony from defendant with respect to his argument that there was excusable neglect for filing the PCR petition beyond the five-year time limit prescribed in Rule 3:22-12. 2 466 U.S. 668 (1984). A-0321-19T4 2 17.2. Defendant was sentenced to a two-year period of probation. Defendant filed his PCR petition approximately fourteen years after the sentence was imposed and twelve years after he completed probation. Defendant raises the following issues for our consideration: POINT I THE TRIAL COURT ERRED BY NOT RELAXING THE FIVE-YEAR TIME LIMIT FOR POST-CONVICTION RELIEF APPLICATIONS. A. THE TRIAL COURT ERRED BY NOT RELAXING THE FIVE-YEAR TIME LIMIT FOR PCR PETITIONS BECAUSE MR. RIVERA SHOWED EXCUSABLE NEGLECT. I. THE TRIAL COURT ERRED BY FINDING THAT MR. RIVERA'S RELIANCE ON INACCURATE IMMIGRATION ADVICE DOES NOT CONSTITUTE EXCUSABLE NEGLECT. B. THE TRIAL COURT ERRED BY NOT RELAXING THE FIVE-YEAR TIME LIMIT BECAUSE MR. RIVERA SUFFERED AN INJUSTICE. C. THE TRIAL COURT ERRED BY NOT CONSIDERING THE RECENT CASE OF STATE V. PATEL WHEN DECIDING WHETHER TO RELAX THE TIME LIMIT. A-0321-19T4 3 ...
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