State v. Brown, 190 A.3d 531

In 2008 a Bergen County grand jury indicted Kevin Brown for possession with intent to distribute (third-degree), possession (fourth-degree), and endangering the welfare of a child (second-degree). Brown was represented by a Bergen County Public Defender staff attorney.
On July 7, 2010 Brown pled guilty to third-degree possession with intent to distribute under a plea agreement dismissing other counts and recommending probation with up to 364 days in jail; Brown admitted possessing about five pounds of marijuana.
At the plea colloquy the trial judge asked Brown (who is not a U.S. citizen) about immigration consequences, warned that deportation was possible for aggravated felonies, told him he could consult immigration counsel, and Brown declined additional time to do so.
Sentencing (Sept. 17, 2010) found aggravating factors and imposed three years’ probation (no jail); Brown did not appeal his conviction or sentence.
In March 2016 Brown filed a first PCR petition alleging ineffective assistance of plea counsel for misadvising him about immigration consequences (counsel allegedly said a sentence under a year and one day would avoid deportation).
The PCR court (the same trial judge) held an evidentiary hearing, found Brown not credible, concluded plea counsel was not ineffective, and denied relief; Brown appealed and the Appellate Division affirmed on timeliness and merits grounds.

Issue	Plaintiff's Argument (Brown)	Defendant's Argument (State)	Held
Whether plea counsel provided ineffective assistance by giving incorrect immigration advice	Counsel told Brown only that a custodial sentence under a year and one day would avoid deportation; Brown says this was patently incorrect and deprived him of an immigration-safe plea negotiation	State contends Brown was warned at plea, had opportunity to consult immigration counsel, and later detention by DHS triggered immigration consequences — counsel was not ineffective	Court held Brown failed to prove ineffective assistance; trial record and plea colloquy put Brown on notice of deportation risk and he voluntarily declined immigration advice
Whether Brown's PCR petition is time-barred under Rule 3:22-12(a) and if excusable neglect was shown	Brown argued he had no reason to suspect this conviction guaranteed deportation (given prior drug convictions without immigration consequence) and that failing to raise PCR earlier would cause fundamental injustice	State argued Brown did not allege facts supporting excusable neglect or timeline to relax the five-year bar and therefore petition is untimely	Court held PCR was filed more than five years after judgment and Brown failed to show excusable neglect or reasonable probability of fundamental injustice; court has duty to enforce timeliness and may not reach merits absent competent excuse

Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective assistance test)
Padilla v. Kentucky, 559 U.S. 356 (defense counsel must advise noncitizen clients about clear deportation consequences)
State v. Fritz, 105 N.J. 42 (adopts Strickland for New Jersey)
State v. Nunez-Valdez, 200 N.J. 129 (deference to trial-court credibility findings in PCR context)
State v. Cann, 342 N.J. Super. 93 (timeliness: petition must allege excusable neglect with supporting facts)
State v. McQuaid, 147 N.J. 464 (policy and importance of Rule 3:22-12 timeliness)
State v. Adubato, 420 N.J. Super. 167 (appellate affirmance for reasons different from trial court is permissible)
State v. Elders, 192 N.J. 224 (trial-court opportunity to see witnesses gives factual-findings deference)