STATE OF NEW JERSEY VS. HERNAN A. CHICAÂ (82-10-0947, BERGEN COUNTY AND STATEWIDE), A-5457-14T1

Background

Hernan Chica, a Colombian national, pled guilty in 1983 in Bergen County to two counts of cocaine possession and one count of distribution; he admitted specific small-quantity drug conduct and agreed to concurrent terms not exceeding six years.
At sentencing the court discussed deportation risk and imposed a 360-day jail sentence to try to avoid triggering a deportation ground tied to sentences over one year.
Chica was deported in December 1984, reentered the U.S. soon after, and faced additional immigration removal proceedings culminating in a 2001 removal order; he was arrested by ICE in 2015 and thereafter deported again.
In April 2015 (about 32 years after the conviction) Chica filed a petition for post-conviction relief (PCR) seeking to withdraw his 1982 guilty plea, claiming ineffective assistance of counsel for failing to advise him about deportation consequences and claiming the court misadvised him.
The PCR court denied relief as untimely under R. 3:22-12(a)(1) (petition filed more than five years after conviction) because Chica failed to allege excusable neglect or certify facts showing fundamental injustice; the court also found no prima facie ineffective-assistance claim.
On appeal the court affirmed: the petition was time-barred, Chica did not show excusable neglect or factual support for ineffective assistance, and Padilla v. Kentucky (requiring counsel to advise about deportation) does not apply retroactively to convictions final before Padilla.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Chica's 2015 PCR petition is barred by the five-year time limit in R. 3:22-12(a)(1)	State: petition is time-barred; Chica failed to allege excusable neglect or facts showing fundamental injustice	Chica: late filing excused because counsel/record misadvised and he lacked knowledge of PCR remedies	Held: Time-barred; no excusable neglect or specific factual certification; delays after deportation and reentry undercut excuse
Whether Chica made a prima facie showing of ineffective assistance of counsel for failing to advise deportation risk when pleading guilty	State: no prima facie claim; before Padilla counsel was not required to advise, and no affirmative misadvice alleged	Chica: trial counsel failed to advise of deportation consequences such that plea was not knowing and voluntary	Held: No prima facie showing; transcript shows plea was voluntary and counsel acknowledged deportation risk; Padilla not retroactive to this long-final conviction
Whether any misstatements by the sentencing court about deportation establish a basis for relief	State: sentencing comments cannot retroactively void a voluntary plea and such claims are waived if not raised on direct appeal	Chica: sentencing court misinformed him, creating fundamental injustice	Held: Rejected—any sentencing-stage misinformation could not have affected the earlier plea decision and is barred as could have been raised on direct appeal
Whether relief should be granted under Rule 1:1-2 or court discretion despite procedural bars	State: Rule 3:22-12 time limits cannot be enlarged and defendant has no vested right to retroactive relaxation	Chica: requests equitable relaxation to avoid deportation after long delay	Held: Denied—rule amendments forbid extending the statutory period; no fundamental injustice shown

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective-assistance test)
Hill v. Lockhart, 474 U.S. 52 (applies Strickland to guilty-plea prejudice inquiry)
Padilla v. Kentucky, 559 U.S. 356 (attorney must inform client of deportation risk of plea)
Chaidez v. United States, 568 U.S. 342 (Padilla not retroactive to convictions already final)
State v. Fritz, 105 N.J. 42 (New Jersey adoption of Strickland standard)
State v. DiFrisco, 137 N.J. 434 (applying Strickland/Hill to guilty pleas in NJ)
State v. Gaitan, 209 N.J. 339 (evaluate belated claims of misadvice against plea and sentencing transcripts)
State v. Milne, 178 N.J. 486 (burden to justify late PCR increases with length of delay)
State v. Nuñez-Valdéz, 200 N.J. 129 (counsel ineffective only if false or misleading deportation advice pre-Padilla)