State v. Brewster
429 N.J. Super. 387
| N.J. Super. Ct. App. Div. | 2013Background
- Brewster, a non-citizen born in Jamaica, came to the United States in 1988 and had no prior criminal record before a 1997 drug arrest.
- He was indicted for possession with intent to distribute marijuana in a school zone; potential 3–5 year state term if convicted.
- With counsel, Brewster pled guilty in 1998 under N.J.S.A. 20:35-12 to avoid mandatory incarceration, with a 364-day county jail term and probation.
- The plea form included Question 17, warning that non-citizens may be deported by virtue of the guilty plea; Brewster acknowledged understanding this.
- In 1998 Brewster was sentenced to two years of probation with 364 days in county jail; he did not file a direct appeal and served the sentence.
- In 2010, federal authorities detained Brewster for deportation; he filed a PCR petition August 2010; the PCR court denied in January 2011 and again in January 2011 on reconsideration.
- The court rejected his claims of ineffective assistance of counsel and untimeliness, relying on, among other authorities, Padilla, Nunez-Valdez, and Gaitan, and held the petition untimely under Rule 3:22-12.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did counsel cause ineffective assistance by not advising deportation consequences? | Brewster alleges he was misadvised about deportation by counsel. | Counsel did not assure deportation; he said it may not be an issue and would discuss with the prosecutor. | No prima facie case; advice fell within prevailing norms in 1998. |
| Is the PCR petition time-barred and should it be excused? | Nunez-Valdez and Padilla create grounds for relief; novel rules or discovery of a factual predicate justify tolling. | Petition was filed nearly 12 years late; no excusable neglect or fundamental injustice shown. | Untimely; Rule 3:22-12 time bar enforced. |
| Should the court have granted an evidentiary hearing? | An evidentiary hearing could develop the ineffective assistance claim. | No factual basis shown that would warrant relief or hearing. | No abuse of discretion; no evidentiary hearing required. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (establishes ineffective assistance framework)
- Hill v. Lockhart, 474 U.S. 52 (U.S. 1985) (requires showing that defendant would not have pleaded guilty but for counsel's errors)
- Nunez-Valdez, 200 N.J. 129 (N.J. 2009) (redefines ineffective assistance via deportation consequences)
- Padilla v. Kentucky, 559 U.S. 356 (S. Ct. 2010) (affirms affirmative duty to advise on deportation consequences)
- Gaitan, 209 N.J. 339 (N.J. 2012) (retroactivity of Padilla on collateral review explained)
- Rule 3:22-12, N.J. Ct. R. 3:22-12 (N.J. Supreme Court amendments effective 2010) (time limits for first and subsequent PCR petitions; tolling rules)