STATE OF NEW JERSEY VS. EDWIN ROSARIO (14-05-0796, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-2219-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EDWIN ROSARIO,
Defendant-Appellant.
__________________________
Submitted December 18, 2018 – Decided January 11, 2019
Before Judges Rothstadt and Gilson.
On appeal from Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 14-05-0796.
Joseph E. Krakora, Public Defender, attorney for
appellant (Monique Moyse, Designated Counsel, on the
brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Erin M. Campbell, Assistant Prosecutor,
on the brief).
PER CURIAM
Defendant Edwin Rosario appeals from a March 10, 2017 order denying
his petition for post-conviction relief (PCR) after oral argument, but without an
evidentiary hearing. Defendant contends that his counsel was ineffective in
misleading him about the immigration consequences of his plea and he should
be permitted to withdraw his plea of guilt. The record, however, establishes that
defendant was advised of the immigration consequences of his plea and,
therefore, we affirm.
I.
In April 2014, defendant was indicted for seven crimes related to his
possession and intention to distribute cocaine and marijuana. Those charges
included two second-degree offenses, four third-degree offenses, and one
fourth-degree offense.
In October 2014, defendant pled guilty to third-degree possession of
cocaine with intent to distribute within 1000 feet of school property, N.J.S.A.
2C:35-7. Before giving that plea, defendant reviewed, completed, and signed a
plea form. In response to question seventeen of that form, defendant stated that
he was not a United States citizen, acknowledged that he had the right to consult
with an immigration attorney, waived that right, and acknowledged that he
understood that he could be removed from the United States if he pled guilty.
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At the plea hearing, defendant informed the court that he was not a United
States citizen. Defendant initially stated that he had not consulted with an
immigration attorney, but when the court stated that it would adjourn the
hearing, defendant testified that he had spoken to another immigration attorney.
Defendant also testified that he had been advised that his guilty plea might result
in his deportation from the United States, prevent him from becoming a United
States citizen, and prevent him from re-entering the United States. In that
regard, defendant had the following exchange with the judge:
THE COURT: Are you a U.S. citizen?
THE DEFENDANT: No.
THE COURT: Okay. Have you had an opportunity
to speak with an immigration attorney?
THE DEFENDANT: Not really.
THE COURT: Okay. We [will] adjourn this so that
you could speak with an immigration attorney.
THE DEFENDANT: I did, he was on vacation.
THE COURT: So you didn't speak to any other
immigration attorney?
THE DEFENDANT: I spoke to another one.
THE COURT: So is it not really or you spoke to
someone - -
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THE DEFENDANT: Yes.
THE COURT: - - else?
THE DEFENDANT: Yes, I did.
THE COURT: Okay. And did he answer all of your
questions with regards to your immigration status?
THE DEFENDANT: Yes.
THE COURT: Did he explain to you, sir, that this
charge could result in your deportation?
THE DEFENDANT: Yes.
THE COURT: Not only could it result in your
deportation, it could affect your ability to apply for
immigration and naturalization as a U.S. citizen in this
country.
THE DEFENDANT: Yes.
THE COURT: Additionally, if you are deported it
could affect your ability to get back into the [country].
THE DEFENDANT: Yes.
THE COURT: And understanding that, you still
wish to plead guilty today?
THE DEFENDANT: Yes.
Following that exchange, the judge confirmed with defendant that (1) he had
reviewed the plea form with his attorney, (2) he had understood all the questions
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and answers on the form, (3) his attorney had answered all of his questions, and
(4) his answers were truthful.
Defendant then testified to the factual basis for his plea. In that regard,
he testified that on October 30, 2013, he was in Union City, he possessed cocaine
with the intent to distribute it, and he was within 1000 feet of a school. Based
on defendant's testimony, the court found there was an adequate factual basis
for the plea and defendant had pled guilty "freely and voluntarily with the full
knowledge and consequences of his actions." Thus, the court accepted
defendant's plea of guilt.
In November 2014, defendant was sentenced to five years of probation
with the condition that he participate in drug court. That sentence was in
accordance with defendant's plea agreement, which had provided that he would
be sentenced either to four years in prison or drug court.
In August 2016, defendant filed a petition for PCR. He certified that his
counsel was ineffective for misadvising him about the deportation consequences
of his plea. He also moved to withdraw his plea. Thereafter, defendant was
assigned PCR counsel and the PCR court heard oral arguments. On March 10,
2017, the court entered an order denying defendant's petition for PCR.
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II.
On this appeal, defendant argues:
MR. ROSARIO IS ENTITLED TO AN
EVIDENTIARY HEARING ON HIS CLAIM THAT
HIS ATTORNEY RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL FOR
AFFIRMATIVELY MISADVISING HIM ABOUT
THE DEPORTATION CONSEQUENCES OF HIS
PLEA AND ON HIS CLAIM THAT HE SHOULD BE
ALLOWED TO WITHDRAW HIS PLEA.
Defendant's petition arises from the application of Rule 3:22, which
permits collateral attack of a conviction based upon a claim of ineffective
assistance of counsel within five years of the conviction. See R. 3:22-2(a); R.
3:22-12(a)(1); see also Strickland v. Washington, 466 U.S. 668, 687 (1984);
State v. Fritz, 105 N.J. 42, 58 (1987). To establish a claim of ineffective
assistance of counsel, a defendant must satisfy the two-part Strickland test: (1)
"counsel made errors so serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment," and (2) "the deficient
performance prejudiced the defense." Strickland, 466 U.S. at 687; Fritz, 105
N.J. at 58 (adopting the Strickland two-part test in New Jersey).
On petitions brought by a defendant who has entered a guilty plea, the
defendant satisfies the first Strickland prong if he or she can show that counsel's
representation fell short of the prevailing norms of the legal community. Padilla
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v. Kentucky, 559 U.S. 356, 366-67 (2010). The defendant proves the second
component of Strickland by establishing "a reasonable probability that" the
defendant "would not have pled guilty," but for counsel's errors. State v. Gaitan,
209 N.J. 339, 351 (2012) (quoting State v. Nunez-Valdez, 200 N.J. 129, 139
(2009)).
In cases involving noncitizen defendants, "a defendant can show
ineffective assistance of counsel by proving that his [or her] guilty plea resulted
from 'inaccurate information from counsel concerning the deportation
consequences of his [or her] plea.'" State v. Brewster, 429 N.J. Super. 387, 392
(App. Div. 2013) (quoting Nunez-Valdez, 200 N.J. at 143). Counsel's duty
encompasses informing a defendant who had entered a guilty plea of the relevant
mandatory deportation law if it is "succinct, clear, and explicit." Padilla, 559
U.S. at 368. Counsel's "failure to advise a noncitizen client that a guilty plea
will lead to mandatory deportation deprives the client of the effective assistance
of counsel guaranteed by the Sixth Amendment." State v. Barros, 425 N.J.
Super. 329, 330 (App. Div. 2012) (citing Padilla, 559 U.S. at 368-69).
Applying these principles and using a de novo standard of review, see
State v. Harris, 181 N.J. 391, 420-21 (2004), we affirm the denial of defendant's
petition for PCR. The record amply demonstrates that defendant was fully aware
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of the immigration consequences of his guilty plea. In both his plea form and at
the plea hearing, defendant confirmed that he had the right to consult with an
immigration attorney and that he understood that by pleading guilty he may be
deported and face other immigration consequences. Accordingly, there is no
showing that defendant was not properly advised of the immigration
consequences of his plea. See Padilla, 559 U.S. at 365-66; Gaitan, 209 N.J. at
380; Nunez-Valdez, 200 N.J. at 139-40; Brewster, 429 N.J. Super. at 393.
Defendant has also made no showing that it would have been rational for
him to reject the plea bargain. See Padilla, 559 U.S. at 372. See also State v.
DiFrisco, 137 N.J. 434, 457 (1994) (a defendant must show a "reasonable
probability" that, absent the incompetent representation, he or she "would not
have pled guilty and would have insisted on going to trial" (quoting Hill v.
Lockhart, 474 U.S. 52, 59 (1985))). Here, defendant was facing two second-
degree charges, three other third-degree charges, and a fourth-degree charge.
He has shown no reasonable probability that he would have rejected the
opportunity to participate in five years of probation in drug court and gone to
trial where he faced the possibility of receiving a sentence of ten years in prison.
Indeed, as the PCR court noted, defendant's petition asserted he pled guilty
because he was "given the option of probation instead of prison time."
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There was also no showing that required an evidentiary hearing on
defendant's PCR petition. A PCR judge should only grant an evidentiary hearing
"if a defendant has presented a prima facie claim in support of post-conviction
relief." State v. Preciose, 129 N.J. 451, 462 (1992). To establish a prima facie
case, "a defendant must demonstrate the reasonable likelihood of succeeding
under the test set forth" in Strickland. Id. at 463. A defendant "must do more
than make bald assertions that he [or she] was denied the effective assistance of
counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). "He
[or she] must allege facts sufficient to demonstrate counsel's alleged substandard
performance." Ibid.Finally, defendant did not establish any of the factors that are required for
the withdrawal of a guilty plea. Those factors are "(1) whether the defendant
has 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 withdrawal would result in unfair prejudice to the State or unfair
advantage to the accused." State v. Slater, 198 N.J. 145, 157-58 (2009).
Defendant does not contend that he is innocent of the crime to which he pled
guilty. Instead, he argues that he only pled guilty based on his trial counsel's
misadvise about the immigration consequences of his plea. As we have already
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found that the record does not support that claim, the first factor under Slater
has not been satisfied. Moreover, none of the other Slater factors support
defendant's arguments to withdraw his guilty plea. The nature and strength of
defendant's reasons for withdrawal are rebutted by the record. There was a plea
agreement, which was very favorable to defendant. Finally, given the passage
of time, allowing the withdrawal would result in unfair prejudice to the State.
Affirmed.
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