NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant Fei Xiao appeals from denial of his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. We affirm.

Defendant is a citizen of China. In April 2003, he was granted permanent resident alien status (a green card) to remain legally in the United States. In May 2005, he was arrested in Woodbridge and charged in a criminal complaint with sexual offenses. A woman he had met recently alleged he had attempted to assault her sexually in his apartment, and that she had been injured in her efforts to resist.

The State made a pre-indictment plea offer for defendant to plead guilty to second-degree attempted sexual assault with the prosecutor's recommendation of a sentence of four years imprisonment, within the third-degree range, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant and his privately-retained attorney discussed the likelihood that defendant would be deported if convicted of the sexual offenses. By letter dated September 30, 2005, defense counsel wrote to the assistant prosecutor in response to the plea offer. Counsel stated that defendant "does not want to go to jail, especially when he knows that within weeks of his being released he will be deported." The attorney wrote further: "The key is that he is going to jail. If he isn't imprisoned, there is a strong likelihood that he would not be deported." Counsel requested a more favorable resolution of the charges or a plea offer with no jail time.

Defendant was indicted in October 2005 on two counts: second-degree attempted sexual assault, N.J.S.A. 2C:14-2(c), and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). Through further negotiations, defense counsel eventually obtained a non-custodial plea offer to the fourth-degree charge, and the conviction would not be subject to Megan's Law, N.J.S.A. 2C:7-2 to-5, or to Community Supervision for Life, N.J.S.A. 2C:43-6.4(d). Defendant would be required to complete counseling and to have no contact with the victim.

On March 30, 2006, defendant and counsel appeared before Judge Bradley J. Ferencz, and defendant pleaded guilty to the fourth-degree charge of criminal sexual contact. During the plea hearing, defense counsel questioned defendant to confirm his knowledge of the charges he was facing and the terms of the plea agreement. He then asked whether anybody had "made any other promises to" defendant besides the terms of the plea agreement as we have set forth. Defendant answered no.

Regarding deportation, defense counsel questioned defendant as follows:

The plea colloquy continued with a factual basis for the guilty plea. Defendant admitted he had met a woman, brought her to his apartment, and while there, he had lifted the victim's blouse and touched her breasts without her consent for the purpose of gratifying himself sexually.

Judge Ferencz then questioned defendant further to assure himself that his guilty plea was knowing and voluntary. During the court's questioning, the following dialogue occurred:

The court then accepted the guilty plea.

During the sentencing proceeding on May 19, 2006, defense counsel restated defendant's objective of avoiding deportation. The court sentenced defendant to five years probation, without a term of incarceration, but with the conditions required by the plea agreement and statutory money penalties. The court also left open a possibility that the probationary term could be shortened after three years if defendant complied with the terms of his supervision. A judgment of conviction was entered on May 31, 2006.

During his term of probation, defendant traveled to China in January 2009 with the court's permission and returned through New York City's John F. Kennedy Airport. He encountered no difficulty re-entering the United States. After he successfully completed his probation, he again traveled to China in January 2011 and returned to the United States with no problems, again at the same airport.

However, while returning to the United States from a trip to Canada in December 2012, defendant was detained by United States immigration officers at Vancouver Airport, and he was not permitted re-entry as a legal permanent resident. The reason for denying re-entry was defendant's 2006 conviction for fourth-degree criminal sexual contact. Eventually, defendant was permitted to enter the United States, but on a conditional status requiring that he appear for a hearing before a federal immigration judge to determine whether he will be deported.

On or about February 14, 2013, new counsel for defendant filed a PCR petition in the criminal court in New Jersey seeking to vacate defendant's guilty plea and conviction. His federal deportation proceedings were stayed pending resolution of the PCR petition.

In the petition, defendant alleges that avoiding deportation was the most important consideration when he and his plea counsel were negotiating for a plea agreement. He agreed to plead guilty only because his attorney incorrectly believed that a non-custodial sentence would make it highly unlikely that he would be deported and advised him so. Defendant alleged this wrong legal advice amounted to deficient performance of his attorney and ineffective assistance of counsel in violation of his constitutional rights.

Judge Ferencz heard argument on the PCR petition and determined that an evidentiary hearing was not required. The judge accepted defendant's representation that his attorney had advised him it was highly unlikely he would be deported if he received and served a non-custodial sentence. The judge concluded that counsel's advice was not deficient, since both defense counsel and the court warned defendant in open court that he might be deported. The judge also commented that defendant received a very favorable plea offer, and that he could have been convicted of a second-degree crime and been sentenced to a significant term of imprisonment with Megan's Law consequences, and then been deported anyway. As it was, defendant received a non-custodial, non-Megan's Law sentence, also without community supervision for life, and his risks of deportation were reduced. Most important, he was fully advised by his attorney and by the court that he might in fact be deported.

On appeal, defendant makes the following arguments:

On a PCR appeal, our standard of review is plenary on questions of law, but the factual findings of the trial court are granted deference if they are supported by adequate, substantial, and credible evidence. State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L. Ed. 2d 898 (2005). Our deference is particularly warranted where the trial court's personal participation in the proceedings and its observation of the defendant and any other witnesses provide an advantage over an appellate court reviewing a documentary record. See id. at 420-21; State v. Nunez-Valdez, 200 N.J. 129, 141 (2009).

In considering a petition for post-conviction relief, the court begins with a presumption that defendant received the assistance of counsel that is mandated by the Sixth Amendment of the United States Constitution, Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L. Ed. 2d 674, 694, (1984), and by Article I, Paragraph 10 of the New Jersey Constitution. State v. Loftin, 191 N.J. 172, 198 (2007). Defendant bears the burden of proving that his attorney provided ineffective assistance. Ibid.

In Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, the United States Supreme Court described a two-part test for evaluating claims of ineffective assistance of counsel:

The New Jersey Supreme Court adopted this test under our State constitutional standards as well. State v. Fritz, 105 N.J. 42, 52, 58 (1987).

If a claim of ineffective assistance follows a guilty plea, the defendant must prove counsel's constitutionally deficient representation and also "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); accord State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 33 L. Ed. 2d 873 (1996).

In Nunez-Valdez, supra, 200 N.J. at 143, the New Jersey Supreme Court held that a defendant can show ineffective assistance by proving that his guilty plea resulted from "inaccurate information from counsel concerning the deportation consequences of his plea." Counsel's "misleading or false information" would prove the first part of the Strickland test. Id. at 142.

Here, defendant argues his defense attorney gave him false legal advice by telling him he was highly unlikely to be deported if he pleaded guilty to the fourth-degree charge and received a non-custodial sentence. He contends defense counsel believed that such a guilty plea and sentence would not require defendant's deportation under federal law because the fourth-degree charge was not an "aggravated felony." See 8 U.S.C. §§ 1101(a)(43) and 1227(a)(2)(A)(iii).

Defendant does not fault counsel's advice with respect to an aggravated felony, but he argues defense counsel failed to take into account that his conviction would make him deportable as a person convicted of a crime involving moral turpitude. See 8 U.S.C. § 1227(a)(2)(A)(i). His plea counsel advised that defendant was highly unlikely to be deported because he would receive a non-custodial sentence, but the federal statute provides that a crime involving moral turpitude makes the alien deportable if it is committed within five years of entry into the United States and a sentence of more than one year incarceration "may be imposed." Ibid. Defendant argues the federal moral turpitude statute looks only to the sentence that is available to the court and could be imposed rather than the actual sentence the court imposes.

Defendant committed the sexual contact offense within five years of his entry into the United States, and he could have been sentenced to a maximum of eighteen months imprisonment for his conviction on the fourth-degree charge. N.J.S.A. 2C:43-6(a)(4). According to defendant's arguments on the PCR petition, these facts make his deportation mandatory, and counsel was required to advise him of that consequence of his guilty plea.

We reject defendant's argument and agree with the trial court that defense counsel's advice was not deficient when viewed in totality rather than only the alleged prediction that defendant was highly unlikely to be deported. Assuming, as the trial court did, that defense counsel did make such a prediction, counsel and the court also took pains to clarify for defendant in open court that they could not assure him he would not be deported. The excerpts of the plea hearing we quoted amply demonstrate that defense counsel and the court informed defendant that federal officials had authority to deport him and that defense counsel and the court could not predict what the federal officials would do.

Also, the plea form that defendant signed, after discussing its contents with defense counsel, contained Question 17: "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?" Defendant answered yes. In addition, while the terms of the plea agreement that were handwritten onto the form specified the sentence would be non-custodial and would have no Megan's Law requirement and no provision for community supervision for life, the plea form did not state that defendant would not be deported. Defendant acknowledged that he had not been promised anything in exchange for his guilty plea beyond what was disclosed on the court's record.

At the time of his guilty plea, defendant had three sources of information that warned him of a potential risk of deportation — the plea form, his defense attorney, and the court. Defendant said he understood the risk, and there is no reason to conclude that he did not. Although defendant now faces possible deportation, the totality of the advice defendant received informed him that he could be deported. That was not wrong or misleading advice.

Defendant has not presented evidence or legal authority to show that he would definitely be deported because of his conviction. In fact, the lack of action by the federal government for more than six years after his conviction, and his routine re-entry into the United States on two occasions, show that his deportation was not a foregone conclusion simply because he was convicted of the fourth-degree crime.

Defendant's PCR counsel argued before Judge Ferencz that the only correct legal advice his plea counsel could have given in 2006 was "if you plead guilty to . . . this offense, it's practically inevitable you're going to be deported no matter what the sentence." We disagree. Such advice might have caused defendant to reject a favorable plea offer, be convicted at a trial of a more serious offense, and be sentenced to a long term of imprisonment, which would not have avoided deportation. Had those eventualities occurred, defendant might as likely allege that his attorney was ineffective for misleadingly advising him not to accept a plea offer, for which he is suffering more severe consequences. Cf. Lafler v. Cooper, ___ U.S. ___, ___, 132 S.Ct. 1376, 1386, 182 L. Ed. 2d 398, 408 (2012) (The defendant's decision to reject a plea offer and go to trial was the result of ineffective assistance in that counsel gave incorrect legal advice about defendant's prospects for avoiding conviction at trial.).

While plea counsel's prediction that deportation was highly unlikely appears in hindsight to have been incorrect, the reliability of that prediction was clarified by the plea colloquy with defendant in open court. Defendant gave no indication at that time that he was in fact relying on his attorney's prediction rather than the complete legal advice the attorney and the court were then providing to him.

The purpose under Rule 3:9-2 of a plea hearing and personal questioning of defendant by the judge is to ensure that defendant is pleading guilty voluntarily and knowingly and to disclose openly "any promises or inducements" that are prompting the defendant to plead guilty. When the full nature and terms of the plea agreement are disclosed on the record and defendant acknowledges that no other promises have been made, the court should be able to discredit defendant's later contention that he pleaded guilty only because of an undisclosed prediction made by his defense attorney.

Defendant also argues that the court should have held an evidentiary hearing to establish the advice that plea counsel gave and defendant's contention that he would not have pleaded guilty if he had known the advice was wrong.

An evidentiary hearing may be required where ineffective assistance of counsel is alleged and matters beyond the trial record must be examined, see State v. Preciose, 129 N.J. 451, 462 (1992), but we review the PCR court's determination to decide the matter without holding an evidentiary hearing under the abuse of discretion standard of review. State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L. Ed. 2d 88 (1997). "If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief. . . then an evidentiary hearing need not be granted." Id. at 158 (citing State v. Flores, 228 N.J.Super. 586, 590 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989); Preciose, supra, 129 N.J. at 464-64; and State v. Odom, 113 N.J.Super. 186, 192 (App. Div. 1971)).

Here, Judge Ferencz accepted defendant's representation that his attorney advised him his deportation was highly unlikely. On a separate issue, the judge commented that defendant would likely have accepted the favorable plea offer even with different advice about the immigration consequences of his guilty plea, but the judge did not make a finding to that effect. We do not rely on the judge's comment about whether or not defendant would have accepted the plea offer. For purposes of the appeal, we take defendant at his word that he would have stood trial had his attorney been able to predict that, more than six years after the plea, federal officials would seek to deport him. Nonetheless, we find no abuse of discretion in the trial court's denial of defendant's PCR petition without holding an evidentiary hearing because defendant failed to establish "deficient performance" by his attorney. See Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

In sum, we find no error in the trial court's conclusion that defense counsel did not give misleading or false legal advice to defendant at the time of his guilty plea. Therefore, defendant failed to demonstrate a prima facie case of ineffective assistance of counsel.

As an alternative ground for affirming the trial court's order, we also conclude that defendant's PCR petition was untimely filed. Defendant filed his petition in February 2013, about six years and eight months after entry of the judgment of conviction in May 2006. Rule 3:22-12(a)(1) requires that a PCR petition be filed within five years of the judgment of conviction. For an untimely petition to be heard, the petitioner must allege facts in the petition and the trial court must find that the delay "was due to defendant's excusable neglect and that 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." Ibid.

To relax the five-year time limitation for a PCR petition, the New Jersey Supreme Court has required a showing of "compelling, extenuating circumstances," see State v. Milne, 178 N.J. 486, 492 (2004); State v. Goodwin, 173 N.J. 583, 594 (2002), or, alternatively, "exceptional circumstances," see State v. Murray, 162 N.J. 240, 246 (2000); State v. Mitchell, 126 N.J. 565, 580 (1992). A procedural rule otherwise barring post-conviction relief may be overlooked to avoid a fundamental injustice where the deficient representation of counsel affected "a determination of guilt or otherwise wrought a miscarriage of justice." See State v. Nash, 212 N.J. 518, 546 (2013) (quoting Mitchell, supra, 126 N.J. at 587). To succeed on a claim of fundamental injustice, the petitioner must show that the error "played a role in the determination of guilt." Ibid.

Here, the alleged error of defense counsel did not play a role in the determination of defendant's guilt on the sexual contact charge. It had nothing to do with the circumstances of the offense or the elements of the charge.

Defendant claims exceptional and compelling circumstances because he was permitted to leave and re-enter the United States twice during the five-year period after his conviction and he was not denied re-entry until after the five-year limitation period had passed. He contends that his attorney's incorrect legal advice and the decision of federal officials not to question his immigration status until December 2012 caused him to trust that he remained a legal permanent resident, and thus, he should be excused for filing a late PCR petition.

In State v. Brewster, 429 N.J.Super. 387 (App. Div. 2013), we stated:

Defendant was informed by means of Question 17 on the plea form and the colloquy in open court on March 30, 2006, that his conviction could result in his deportation. Even if his plea attorney gave him incorrect advice about the likelihood of deportation, he was put on notice in the courtroom that deportation might be a consequence of his guilty plea. The federal statutes leading to the deportation proceedings were in effect when defendant pleaded guilty. He had five years from the time of his conviction to discover any fault in his attorney's advice. The fact that defendant apparently did nothing to become fully informed about his immigration and deportation status for more than six years is contrary to a finding of excusable neglect. We conclude that defendant's petition was untimely filed.1

Affirmed.