STATE OF NEW JERSEY VS. RAMON VILLALTAÂ (01-05-1372, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-0372-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RAMON VILLALTA,
Defendant-Appellant.
__________________________________________________________
Submitted June 26, 2017 – Decided July 6, 2017
Before Judges Fisher and Fasciale.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County,
Indictment No. 01-05-1372.
Joseph E. Krakora, Public Defender, attorney
for appellant (Suzannah Brown, Designated
Counsel, on the brief).
Gurbir S. Grewal, Bergen County Prosecutor,
attorney for respondent (Elizabeth R. Rebein,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
On September 24, 2001, defendant pleaded guilty to third-
degree receiving stolen property. In executing a plea form,
defendant acknowledged he understood the charges and that a guilty
plea could bring about his deportation. On December 7, 2001, the
court sentenced defendant to a one-year probationary term, which
was terminated a year later when defendant pleaded guilty to a
probation violation. Defendant did not file a direct appeal.
In April 2015, defendant was arrested and detained in federal
immigration custody. The following month, defendant moved to
vacate his conviction – an application viewed by the trial court
as a post-conviction relief (PCR) petition. Defendant claimed he
was denied the effective assistance of counsel because his lawyer:
misinformed him about the charges and the potential immigration
ramifications; coerced him to plead guilty; and refused to file a
direct appeal.1
The PCR judge conducted an evidentiary hearing. Defendant's
former attorney testified that he recalled defendant but did not
specifically remember reviewing the plea form with him. The
attorney testified, however, that his usual practice was to review
a plea form in detail with his client, including, when applicable,
the immigration consequences of a guilty plea. Defendant testified
by telephone from his place of incarceration in Buffalo, New York,
and disputed much of his attorney's testimony.
1
Defendant has not here renewed his argument about counsel's
failure to file a direct appeal.
2 A-0372-16T3
The PCR judge found defendant's application both time-barred
and without merit. In oral and written opinions, the judge reasoned
that defendant's failure to understand the PCR process was not a
ground for relaxing the bar, and that his attorney, consistent
with his usual conduct during many years of criminal practice,
reviewed the plea form in detail with defendant to ensure defendant
understood the consequences of his guilty plea.2
Defendant appeals, arguing:
I. THE PCR COURT ERRED IN HOLDING THAT
[DEFENDANT'S] [PCR] PETITION . . . WAS TIME-
BARRED.
II. THE PCR COURT ERRED IN DENYING
[DEFENDANT'S] CLAIM THAT HE RECEIVED
INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE
TRIAL COUNSEL FAILED TO ADVISE HIM HE COULD
BE DEPORTED AS A RESULT OF HIS GUILTY PLEA.
Because we find insufficient merit in defendant's Point II, we
need not reach Point I.3
2
According to the judge's findings, the attorney gave advice as
was his custom and practice at the time. As the attorney explained,
he routinely gave advice that if the defendant was "not legally
in this country [he would be] facing deportation," but also that
he was "not an immigration attorney" and if the defendant had "any
question[s] [he] should consult with an immigration attorney."
3
According to Rule 3:22-12(a)(1), a PCR petition must be filed
within five years of the judgment of conviction absent "excusable
neglect" for the delay and "a reasonable probability that if the
defendant's factual assertions were found to be true enforcement
of the time bar would result in a fundamental injustice." We need
not determine whether defendant's sudden incarceration and
3 A-0372-16T3
In Point II, defendant essentially argues that the PCR judge
erred by finding his former counsel's testimony more credible than
his, and defendant maintains that his former counsel failed to
adequately inform him about the consequences of his guilty plea.
An appellate court, however, must give deference to a judge's
credibility findings and resolution of factual disputes so long
as the judge's findings are supported by the evidence. State v.
Pierre, 223 N.J. 560, 576, 579 (2015). Moreover, because
defendant's guilty plea was entered prior to Padilla v. Kentucky,
559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), only
negligent legal advice could support the relief sought by defendant
in his PCR petition. State v. Gaitan, 209 N.J. 339, 361-62 (2012),
cert. denied, __ U.S. __, 133 S. Ct. 1454, 185 L. Ed. 2d 361
(2013); accord Chaidez v. United States, 568 U.S. __, __, 133 S.
Ct. 1103, 1107, 185 L. Ed. 2d 149, 155 (2013). In applying these
principles, we conclude that defendant failed to establish a prima
facie case of ineffective assistance of counsel under Strickland
v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064,
2068, 80 L. Ed. 2d 674, 693, 698 (1984).
threatened deportation so many years after the conviction
constitutes a ground for finding "excusable neglect" for not moving
for post-conviction relief within the five-year timeframe, or
whether we would adhere to another panel's assessment, in State
v. Brewster, 429 N.J. Super. 387, 398-401 (App. Div. 2013), of the
time-bar in similar circumstances.
4 A-0372-16T3
Affirmed.
5 A-0372-16T3