STATE OF NEW JERSEY VS. RENE RODRIGUEZ(05-11-1496, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2212-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RENE RODRIGUEZ,
Defendant-Appellant.
__________________________
Argued May 24, 2017 – Decided July 19, 2017
Before Judges Simonelli, Gooden Brown and
Farrington.
On appeal from the Superior Court of New
Jersey, Law Division, Union County, Indictment
No. 05-11-1496.
Eric M. Mark argued the cause for appellant
(Law Office of Eric M. Mark, attorneys; Mr.
Mark, on the briefs).
Kimberly L. Donnelly, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Grace H. Park,
Acting Union County Prosecutor, attorney; N.
Christine Mansour, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Rene Rodriguez appeals from the January 6, 2016 Law
Division order, which denied his petition for post-conviction
relief (PCR) without an evidentiary hearing. We affirm.
We derive the following facts from the record. On September
19, 2005, the police observed defendant engage in a hand-to-hand
drug transaction. Defendant drove away from the scene of the
transaction and the police stopped him a short time later. A
consent search of defendant's car revealed eighteen plastic bags
containing cocaine. The police searched defendant following his
arrest and found $400 on his person.
Defendant was charged under Warrant Nos. W-05-851-2009 and
W-05-852-2009 with third-degree possession of a controlled
dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); second-degree
possession with intent to distribute a CDS, N.J.S.A. 2C:35-5(a)(1)
and N.J.S.A. 2C:35-5(b)(2); second-degree possession with intent
to distribute a CDS within 500 feet of a public park, N.J.S.A.
2C:35-7.1; and third-degree possession with intent to distribute
a CDS within 1,000 feet of school property, N.J.S.A. 2C:35-7.
On November 30, 2005, defendant entered a pre-indictment
guilty plea to possession with intent to distribute a CDS, N.J.S.A.
2C:35-5(a)(1), amended to third degree. In exchange, the State
agreed to recommend a three-year probationary term with 180 days
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to be served in the county jail, and to dismiss the remaining
charges.
At the plea hearing, defendant testified that he reviewed
each question on the plea forms with plea counsel, and gave
truthful answers to each question. Defendant had answered "Yes"
to Question 17, which asked if he understood that he may be
deported as a result of his guilty plea if he was not a United
States citizen or national. Regarding the deportation
consequences, the following colloquy occurred:
[THE COURT]: Are you a U.S. citizen?
[DEFENDANT]: No.
[THE COURT]: Do you understand you may be
deported if you plead guilty?
[DEFENDANT]: Yes.
[THE COURT]: Do you want to plead guilty
knowing that?
[DEFENDANT]: I wanted to plead innocent.
[THE COURT]: I'm sorry?
[DEFENDANT]: I'm confused right now. I
don't know what to take. Guilty or innocent.
[PLEA COUNSEL]: Are you married to a U.S.
citizen?
[DEFENDANT]: No.
[PLEA COUNSEL]: Do you have children born in
the United States?
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[DEFENDANT]: Yes.
[PLEA COUNSEL]: Okay. Unlikely.
[DEFENDANT]: I'll plead guilty.
[THE COURT]: Are you sure?
[DEFENDANT]: Yes.
When defendant again expressed uncertainty about pleading
guilty, the court refused to accept the plea and stated: "You're
going to talk to your lawyer and I'm only going to take your plea
if you fully understand everything." After a brief recess, the
following colloquy occurred:
[THE COURT]: You all set?
[PLEA COUNSEL]: Absolutely. [Defendant]
says he's fine.
[THE COURT]: Where were we when we left off?
[DEFENDANT]: I was pleading guilty, Your
Honor.
[THE COURT]: Are you okay with everything
now?
[DEFENDANT]: Yeah.
. . . .
[THE COURT]: Are [you] willing to plead
guilty knowing the consequences with regards
to the deportation if there's a chance that
they may file deportation charges against you?
[DEFENDANT]: Yes sir.
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[THE COURT]: And you had a chance to talk
with [plea counsel] about that?
[DEFENDANT]: Yes, sir.
[THE COURT]: Okay. Do you have any
questions of [plea counsel] about anything?
[DEFENDANT]: No.
[THE COURT]: Okay. Are you satisfied with
the work [plea counsel] performed for you?
[DEFENDANT]: Yes.
[(Emphasis added).]
Defendant also testified he was not forced or threatened into
pleading guilty and did so freely and voluntarily. He then gave
a factual basis for his plea, admitting that he possessed cocaine
with the intent to distribute.
On March 28, 2006, the court sentenced defendant to a three-
year probationary term with a 180-day jail sentence, which was
later suspended. Defendant did not appeal his conviction or
sentence.
In May 2015, the United States Department of Homeland Security
initiated immigration removal proceedings against defendant based
on his drug conviction. On July 14, 2015, defendant filed a PCR
petition. In his verified petition, defendant certified that plea
counsel rendered ineffective assistance by failing to: (1) apply
for pre-trial intervention (PTI); (2) pursue meritorious defenses,
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including a motion to suppress based on an unlawful motor vehicle
stop; and (3) negotiate a non-deportable plea. Defendant did not
certify that plea counsel affirmatively misadvised him there would
be no immigration consequences of his guilty plea. Defendant also
filed a motion to withdraw his guilty plea pursuant to Rule 3:21-
1.
At oral argument on the PCR petition, PCR counsel argued
there was excusable neglect to relax the five-year time bar of
Rule 3:22-12(a)(1) because defendant was unaware of the
deportation consequences of his plea until deportation proceedings
began in May 2015, and denial of the petition would result in a
fundamental injustice. PCR counsel asserted that plea counsel
rendered ineffective assistance by affirmatively misadvising
defendant there would be no immigration consequences and he would
not be deported when, in fact, defendant was pleading to a
deportable offense.
In a January 6, 2016 oral opinion, Judge William A. Daniel
denied the petition without an evidentiary hearing, concluding it
was time-barred by Rule 3:22-12(a)(1), and defendant failed to
show excusable neglect or that a denial of the petition would
result in a fundamental injustice. The judge found defendant had
knowledge and was aware of the potential immigration consequences
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when he pled guilty, and had the opportunity and incentive to
inquire about his immigration status post-plea, but did not do so.
Addressing the merits, Judge Daniel reviewed the plea
transcript and defendant's verified petition, and found the record
did not support PCR counsel's argument that plea counsel
affirmatively misadvised defendant there would be no immigration
consequences and he would not be deported. The judge emphasized
that defendant did not certify that plea counsel advised him he
would not be deported. The judge concluded that by answering
"Yes" to Question 17, defendant was on notice of the potential
deportation consequences of his guilty plea.
Judge Daniel found that given the nature of the offenses
charged, defendant was presumptively ineligible for PTI under
Guideline 3(i) of Rule 3:28, and there was no evidence defendant
was drug dependent or that the prosecutor was willing to join in
a PTI application. The judge concluded that plea counsel was not
ineffective for failing to file a likely unsuccessful PTI
application.
Judge Daniel determined that a motion to suppress would have
failed because the police had probable cause to conduct an
investigatory stop of defendant's car based on them observing him
engaging in a hand-to-hand drug transaction. The judge concluded
7 A-2212-15T2
that plea counsel was not ineffective for failing to file a
meritless motion to suppress.
Judge Daniel found defendant did not certify that the State
was willing to offer anything less than what was offered or that
plea counsel did not attempt to negotiate a more favorable plea
deal. The judge concluded there was no competent evidence that
plea counsel rendered ineffective assistance by failing to
negotiate a non-deportable plea.
Lastly, Judge Daniel denied defendant's motion to withdraw
his guilty plea. The judge found that defendant entered his plea
voluntarily and knowingly and provided a factual basis. The judge
determined that defendant failed to satisfy the Slater factors:
(1) whether defendant asserted a colorable claim of innocence; (2)
the nature and strength of defendant's reasons for withdrawal; (3)
the existence of a plea bargain; and (4) whether the withdrawal
would result in unfair prejudice to the State or unfair advantage
to defendant. State v. Slater, 198 N.J. 145, 157-58 (2009). The
judge found that defendant did not assert his innocence at the
plea hearing, but merely seemed unsure as to whether or not to
plead guilty, and did not certify that he was innocent of the
offense charged. The judge also found that defendant's reason for
withdrawal, ineffective assistance of counsel, lacked merit; there
was a negotiated plea; defendant benefitted from a favorable plea
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bargain; defendant knew of the deportation consequences of his
plea; and the State would be prejudiced by the ten-year delay
while defendant would have an unfair advantage.
On appeal, defendant raises the following contentions:
I. The Time Bar to PCR is Overcome by
Excusable Neglect and Fundamental
Injustice.
A. Petitioner's Failure to Timely
File Was Due to Excusable
Neglect.
i. The Lower Court Erred
in Finding the Absence of
Excusable Neglect because
of the Court's Warnings.
ii. The Lower Court Erred
in Finding the Plea Form,
Alone, Showed "Knowledge
or Awareness" of the
Immigration Consequences.
iii. [Defendant] Did Not
Have the "Knowledge or
Awareness" of Immigration
Consequences Because His
Trial Counsel Misinformed
Him.
B. Enforcement of the Time Bar
Would Result in Fundamental
Injustice.
II. Ineffective Assistance of Counsel.
A. Defense Counsel Misadvised
[Defendant] of Immigration
Consequences.
9 A-2212-15T2
B. Defense Counsel Failed to Apply
[Defendant] to [PTI].
C. Defense Counsel Failed to Pursue
Potentially Meritorious
Defenses.
D. Defense Counsel Failed to
Negotiate a Non-Deportable
Plea.
E. Cumulative Effects.
III. The Trial Court Erred in Denying an
Evidentiary Hearing.
IV. Withdrawal of Guilty Plea Should Have
Been Granted Because [Defendant] Did Not
Have a Comprehensive Understanding of the
Consequences.
We review a judge's decision to deny a PCR petition without
an evidentiary hearing for abuse of discretion. State v. Preciose,
129 N.J. 451, 462 (1992). We discern no abuse of discretion here.
The mere raising of a claim for PCR does not entitle the
defendant to an evidentiary hearing. State v. Cummings, 321 N.J.
Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Rather, trial courts should grant evidentiary hearings and make a
determination on the merits only if the defendant has presented a
prima facie claim of ineffective assistance, material issues of
disputed fact lie outside the record, and resolution of the issues
necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J.
10 A-2212-15T2
343, 355 (2013). To establish a prima facie claim of ineffective
assistance of counsel, the defendant
must satisfy two prongs. First, he must
demonstrate that counsel made errors so
serious that counsel was not functioning as
the counsel guaranteed the defendant by the
Sixth Amendment. An attorney's representation
is deficient when it [falls] below an
objective standard of reasonableness.
Second, a defendant must show that the
deficient performance prejudiced the defense.
A defendant will be prejudiced when counsel's
errors are sufficiently serious to deny him a
fair trial. The prejudice standard is met if
there is a reasonable probability that, but
for counsel's unprofessional errors, the
result of the proceeding would have been
different. A reasonable probability simply
means a probability sufficient to undermine
confidence in the outcome of the proceeding.
[State v. O'Neil, 219 N.J. 598, 611 (2014)
(citations omitted).]
"[I]n order to establish a prima facie claim, [the defendant]
must do more than make bald assertions that he was denied the
effective assistance of counsel. He must allege facts sufficient
to demonstrate counsel's alleged substandard performance."
Cummings, supra, 321 N.J. Super. at 170. The defendant must
establish, by a preponderance of the credible evidence, that he
is entitled to the requested relief. State v. Nash, 212 N.J. 518,
541 (2013). With respect to a guilty plea, our Supreme Court has
explained that
11 A-2212-15T2
[t]o set aside a guilty plea based on
ineffective assistance of counsel, a defendant
must show that (i) counsel's assistance was
not within the range of competence demanded
of attorneys in criminal cases; and (ii) that
there is a reasonable probability that, but
for counsel's errors, [the defendant] would
not have pled guilty and would have insisted
on going to trial.
[State v. Nuñez-Valdéz, 200 N.J. 129, 139
(2009) (quoting State v. DiFrisco, 137 N.J.
434, 457 (1994)).]
We have considered defendant's contentions in light of the
record and applicable legal principles and conclude they are
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons
expressed by Judge Daniel in his comprehensive and cogent oral
opinion. However, we make the following brief comments.
The Supreme Court of the United States has held that 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, 366, 130 S. Ct. 1473, 1482, 176 L. Ed.
2d 284, 294 (2010). However, the Court held that Padilla does not
apply retroactively, Chaidez v. United States, ___ U.S. ___, ___,
133 S. Ct. 1103, 1105, 185 L. Ed. 2d 149, 154 (2013), and our
Supreme Court held that Padilla is a new rule to be applied
prospectively only. State v. Gaitan, 209 N.J. 339, 371-72 (2012),
12 A-2212-15T2
cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361(2013); see also State v. Santos, 210 N.J. 129, 143 (2012).
Here, defendant pled guilty five years before Padilla.
Therefore, his "guilty plea is not vulnerable because neither the
court nor counsel warned the defendant about the deportation
consequences of the guilty plea." Gaitan, supra, 209 N.J. at 361(citation omitted).
A limited exception to this rule arises when defense counsel
provided affirmatively misleading advice about the immigration
consequences of a guilty plea. See Nuñez-Valdéz, supra, 200 N.J.
at 139-43 (where defense counsel informed the defendant there
would be no immigration consequences arising from his plea); see
also Santos, supra, 210 N.J. at 143. That exception is
inapplicable here because Judge Daniel did not find that plea
counsel affirmatively misadvised defendant there would be no
deportation consequences arising from his plea. Rather, the judge
found there was no competent evidence counsel gave affirmatively
misleading advice, and defendant knew that he may be deported by
virtue of having read and truthfully answered "Yes" to Question
17 and having been alerted to that possibility at the plea hearing.
This information was not prima facie proof of ineffective
assistance of counsel. State v. Brewster, 429 N.J. Super. 387,
398 (App. Div. 2013).
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Affirmed.
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