STATE OF NEW JERSEY VS. JORGE ECHEVERRY (05-04-0479, HUDSON COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-0079-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JORGE ECHEVERRY, a/k/a GATO,
Defendant-Appellant.
______________________________
Submitted August 7, 2018 – Decided August 13, 2018
Before Judges Sabatino and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
05-04-0479.
Michael Pastacaldi, attorney for appellant.
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Svjetlana Tesic,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Jorge Echeverry appeals from the trial court's
August 30, 2017 order denying his petition for post-conviction
relief ("PCR") without an evidentiary hearing. We affirm.
In April 2005, defendant was named with others in a multi-
count indictment. The indictment charged him with nine counts of
distribution of a controlled dangerous substance ("CDS"),
including the distribution of CDS within 1000 feet of a school,
and CDS distribution within 500 feet of a public housing facility;
four counts of possession of CDS with the intent to distribute it;
and one count of operating a CDS facility.
Defendant entered into a negotiated plea agreement with the
State, in which he agreed to plead guilty to an amended charge of
third-degree possession of CDS with the intent to distribute,
N.J.S.A. 2C:35-5(a)(1), reduced from a first-degree charge. In
addition to the possessory downgrade, the State agreed to dismiss
all other charges against defendant.
Defendant and his counsel appeared before the trial court on
September 14, 2005, at which time he voluntarily entered a guilty
plea to the amended possessory count, consistent with the terms
of the plea agreement. Defendant was sentenced to two years of
probation, largely based upon the application of mitigating
sentencing factor twelve, N.J.S.A. 2C:44-1(b)(12). Defendant did
not appeal his judgment of conviction.
In March 2017, defendant filed a PCR petition, claiming his
former counsel was ineffective for allegedly failing to advise
him, as a non-citizen, about the adverse immigration consequences
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of his guilty plea. Defendant also sought to withdraw his guilty
plea. After hearing oral argument, the PCR judge denied the
petition and found no need for an evidentiary hearing. The judge
also rejected defendant's belated request to withdraw his plea.
On appeal, defendant repeats his argument that his former
counsel was ineffective because counsel allegedly failed to advise
him the plea might result in his deportation. He asserts that his
counsel knew he was not a citizen, and that there is nothing in
the record to show counsel advised him of immigration consequences.
He notes that question number seventeen on the plea form, requiring
him to acknowledge as a non-citizen that he could be deported, was
marked both "yes" and "n/a," the latter of which was crossed out
and not initialed.
Defendant argues he was entitled to an evidentiary hearing
because of the alleged discrepancy on the plea form. Defendant
concedes his PCR application was filed beyond the five-year time
bar of Rule 3:22-12, but argues there was excusable neglect for
his delay. Defendant asserts he never signed an appeals rights
form and claims he was never informed about the PCR time bar.
In his briefs, defendant presents the following points for
our consideration:
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POINT ONE
THE TRIAL COURT ERRED IN DENYING MR.
ECHEVERRY'S CLAIM THAT TRIAL COUNSEL WAS
INEFFECTIVE FOR FAILING TO ADVISE HIM OF HIS
IMMIGRATION CONSEQUENCES ASSOCIATED WITH THE
PLEA.
POINT TWO
MR. ECHEVERRY IS ENTITLED TO AN EVIDENTIARY
HEARING ON HIS CLAIM THAT HIS TRIAL ATTORNEY
RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT THREE
THE TRIAL COURT ERRED IN TIME BARRING MR.
ECHEVERRY'S PETITION PURSUANT TO R. 3:22-12.
POINT FOUR
THE TRIAL COURT ERRED BY DENYING MR.
ECHEVERRY'S MOTION TO WITHDRAW HIS PLEA.
REPLY POINT ONE
THE STATE'S INTERPRETATION OF STATE V. MOLINA
AS NON-APPLICABLE TO MR. ECHEVERRY'S PETITION
FOR POST-CONVICTION RELIEF IS INCORRECT.
REPLY POINT TWO
THE STATE'S RELIANCE ON STATE V. CHUNG AS
APPLICABLE TO MR. ECHEVERRY'S PETITION FOR
POST-CONVICTION RELIEF IS MISPLACED.
REPLY POINT THREE
THE TRIAL COURT ERRED BY DENYING MR.
ECHEVERRY'S MOTION TO WITHDRAW HIS PLEA.
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REPLY POINT FOUR
MR. ECHEVERRY IS ENTITLED TO AN EVIDENTIARY
HEARING ON HIS CLAIM THAT HIS TRIAL ATTORNEY
RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.
Having considered these points in light of the record and the
applicable law, we affirm the denial of defendant's PCR petition.
As this court explained in State v. O'Donnell, 435 N.J. Super.
351, 368 (App. Div. 2014), the analysis of a defendant's PCR
petition and a motion to withdraw a guilty plea are governed by
two distinct legal criteria. Applying those separate criteria,
defendant's claims for relief were properly rejected.
We begin with the PCR petition. For the sake of discussion,
we shall assume, but not decide, that defendant's PCR petition is
not time-barred. We thus choose to address the merits of his
claims of ineffective assistance of plea counsel.
The Supreme Court of the United States held in 2010 that
criminal defense attorneys are affirmatively obligated to inform
their clients about the deportation risks of entering a guilty
plea. Padilla v. Kentucky, 559 U.S. 356, 367-69 (2010); see also
Lee v. United States, 582 U.S. ___, ___, 137 S. Ct. 1958, 1965
(2017) (holding that, when a defendant pled guilty prior to trial
based on incorrect advice from counsel about deportation
consequences, the court must determine "whether the defendant was
prejudiced by the 'denial of the entire judicial proceeding . . .
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to which he had a right.'") (quoting Roe v. Flores-Ortega, 528
U.S. 470, 483 (2000)).
The Court has determined that Padilla does not apply
retroactively. Chaidez v. United States, 568 U.S. 342, 347 (2013).
The New Jersey Supreme Court has likewise held that Padilla is a
new rule to be applied prospectively only. State v. Gaitan, 209
N.J. 339, 371 (2012); see also State v. Santos, 210 N.J. 129, 143
(2012). Thus, for convictions such as defendant's that preceded
Padilla, constitutionally ineffective assistance of plea counsel
can only be established where counsel provided affirmatively
misleading advice to a defendant about the immigration
consequences of his or her guilty plea. See State v. Nuñez-Valdéz,
200 N.J. 129, 139-43 (2009) (where defense counsel affirmatively
misinformed the defendant there would be no immigration
consequences arising from his plea); see also Santos, 210 N.J. at
143.
Defendant has failed to present a prima facie claim of
ineffectiveness relating to his former counsel's conduct, under
the then-applicable standards of Nuñez-Valdéz concerning a
client's risks of deportation. The record is bereft of any
competent proof that such affirmative misadvice was provided to
defendant here. The plea form does not support defendant's claim,
as his "Yes" answer to Question #17 acknowledging his awareness
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of possible deportation is circled and not stricken out, unlike
the crossed-out "N/A" response to that query.
Moreover, defendant provides no proof that his counsel gave
him affirmative misadvice that he would not be deported. At most,
defendant asserts he received no advice at all, which does not
transgress pre-Padilla standards. Because defendant presented no
prima facie claim of an ineffective assistance of counsel, there
was no need for the trial court to conduct an evidentiary hearing.
State v. Preciose, 129 N.J. 451, 462-63 (1992).
The trial court likewise did not err in denying defendant's
motion to withdraw his 2005 guilty plea. Defendant does not
satisfy the factors of State v. Slater, 198 N.J. 145, 150 (2009).
He does not advance or substantiate a colorable claim of innocence.
Moreover, defendant's negotiated plea bargain to a third-degree
offense ultimately yielded him a very favorable non-custodial
disposition on an indictment that had charged him with multiple
first-degree and second-degree crimes and a lengthy mandatory
custodial term. In addition, the State clearly would be prejudiced
in now having to prosecute this stale drug case more than a decade
after the charges were brought.
Defendant's remaining arguments are plainly without merit and
do not warrant discussion. R. 2:11-3(e)(2).
Affirmed.
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