STATE OF NEW JERSEY VS. JUAN A. RIPOL (07-05-0849, 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NOT FOR PUBLICATION WITHOUT THE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-4607-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JUAN A. RIPOL, a/k/a JUAN
ANTONIO RIPOL-TAVARES,
Defendant-Appellant.
______________________________
Submitted November 27, 2018 – Decided January 23, 2019
Before Judges Hoffman and Geiger.
On appeal from Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 07-05-0849.
Joseph E. Krakora, Public Defender, attorney for
appellant (Kevin G. Byrnes, Designated Counsel, on
the brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Svjetlana Tesic, Assistant Prosecutor, on
the brief).
PER CURIAM
Seeking to avoid deportation nearly nine years after his conviction of drug
and money laundering charges, defendant Juan Ripol appeals from a May 23,
2017 Law Division order denying his petition for post-conviction relief (PCR).
He claims he received ineffective assistance of counsel when he pleaded guilty
in 2007 because his plea counsel did not advise him he would be deported. On
both factual and legal grounds, we reject defendant's contentions and affirm
denial of his PCR petition.
I.
Defendant is not a United States citizen. He is a citizen of the Dominican
Republic, and contends that he came to the United States before the age of two.
He had one disorderly person's offense, which was drug related, before his 2006
arrest for possession of fourteen bags of marijuana, weighing approximately
seven ounces, on his person, and possession of additional marijuana and
paraphernalia in his apartment, along with $15,146. A Hudson County grand
jury indicted him on charges including third-degree possession of marijuana
with intent to distribute in a school zone, N.J.S.A. 2C:35-7, and third-degree
money laundering, N.J.S.A. 2C:21-25. If convicted of those charges, defendant
faced a minimum mandatory term of three years imprisonment and a maximum
state prison term of ten years. N.J.S.A. 2C:35-7; N.J.S.A. 2C:43-6(a)(3).
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With the advice of counsel, defendant accepted a plea offer, in accordance
with N.J.S.A. 2C:35-12, that would avoid the mandatory period of incarceration
and instead recommend a sentence of probation. At his October 26, 2007 plea
hearing, defendant admitted he possessed the marijuana, and "in the event that
one of [his] friends or anyone wanted some[, he] would sell it to them . . . ." In
addition, defendant answered, "Yes. I understand," to the following inquiry by
the judge: "[This] conviction could be used against you by immigration or
customs to deny citizenship, or change your status in this country, or even
deportation. Do you understand that?" Further, the risk of deportation was
addressed in a written plea form signed by defendant as part of the record of his
guilty plea. Question 17 of the plea form asked: "Do you understand that if you
are not a United States citizen or national, you may deported by virtue of your
plea of guilty?" Defendant answered "yes."
On January 17, 2008, the judge sentenced defendant to two years of
probation with fifty hours of community service, and the forfeiture of the
$15,146 found at defendant's apartment. Defendant served his probationary
sentence and did not file a direct appeal.
On November 2, 2016, almost nine years after his plea and conviction,
defendant filed the PCR petition under review. In a supporting certification,
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defendant stated he was "currently in deportation proceedings for accepting the
plea." By the time of his PCR hearing, defendant had been deported to the
Dominican Republic. The PCR judge found excusable neglect for the filing of
defendant's petition beyond five years of his conviction and sentence, apparently
because the plea judge did not mention his right to file a PCR petition at his plea
hearing or sentencing. The PCR judge therefore addressed the merits of
defendant's petition; in an oral statement of reasons, the judge denied PCR
without an evidentiary hearing.
On appeal, defendant makes the following arguments:
POINT I
THE DEFENDANT WAS DENIED THE RIGHT
TO EFFECTIVE ASSISTANCE OF TRIAL
COUNSEL WHEN COUNSEL PROVIDED
MISLEADING INFORMATION ABOUT THE
EFFECTS OF THE GUILTY PLEA ON THE
DEFENDANT'S IMMIGRATION STATUS.
POINT II
THE PLEA AGREEMENT SHOULD BE SET
ASIDE BECAUSE IT WAS THE RESULT OF A
MANIFEST INJUSTICE.
POINT III
THE DEFENDANT IS ENTITLED TO AN
EVIDENTIARY HEARING.
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We are not persuaded by these arguments, as defendant's submissions did
not make a prima facie showing of ineffective assistance of counsel leading to
his guilty plea.
II.
A.
To establish a prima facie case of ineffective assistance of counsel,
defendant must satisfy the two-prong test articulated in Strickland v.
Washington, 466 U.S. 668, 687 (1984), which our Supreme Court adopted in
State v. Fritz, 105 N.J. 42, 58 (1987). "First, the defendant must show . . .
counsel made errors so serious that counsel was not functioning as the 'counsel'
guaranteed . . . by the Sixth Amendment." Fritz, 105 N.J. at 52 (quoting
Strickland, 466 U.S. at 687). Defendant must then show counsel's deficient
performance prejudiced the defense. Ibid. To show prejudice, defendant must
establish by "a reasonable probability" that the deficient performance
"materially contributed to defendant's conviction . . . ." Id. at 58.
PCR is New Jersey's analogue to the federal writ of habeas corpus. State
v. Afanador, 151 N.J. 41, 49 (1997) (citing State v. Preciose, 129 N.J. 451, 459
(1992)). It is the vehicle through which a defendant may, after conviction and
sentencing, challenge a judgment of conviction by raising issues that could not
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have been raised on direct appeal and, therefore, ensures that a defendant was
not unjustly convicted. State v. McQuaid, 147 N.J. 464, 482 (1997) (citation
omitted).
The denial of an evidentiary hearing for a PCR petition is reviewed for an
abuse of discretion. State v. Brewster, 429 N.J. Super. 387, 401 (App. Div.
2013). However, reviewing courts "may exercise de novo review over the
factual inferences the trial court has drawn from the documentary record." State
v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014).
"If a claim of ineffective assistance follows a guilty plea, the defendant
must prove counsel's constitutionally deficient representation and also 'a
reasonable probability that, but for counsel's errors, he would not have pleaded
guilty and would have insisted on going to trial.'" Brewster, 429 N.J. Super. at
392 (quoting Hill v. Lockhart, 474 U.S. 52, 59, (1985)) (other citation omitted).
B.
Defendant's substantive claims of his counsel's alleged ineffectiveness are
insufficient to warrant an evidentiary hearing, let alone an order setting aside
his prior convictions. Because defendant was convicted long before the United
States Supreme Court issued its seminal 2010 opinion in Padilla v. Kentucky,
559 U.S. 356, 367 (2010) concerning deportation consequences to a criminal
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defendant, his claims are governed by the standards of State v. Nunez-Valdez,
200 N.J. 129 (2009). Under those pre-Padilla standards, a defendant seeking
relief based upon post-conviction deportation consequences can only prevail if
he demonstrates that his prior counsel provided him with affirmatively
misleading advice about such consequences flowing from a guilty plea. Id. at
139-43; see also State v. Santos, 210 N.J. 129, 143 (2012).
In one of the two certifications defendant submitted to the PCR court,
defendant asserted that "[n]either the [j]udge nor [his] attorney ever told [him]
that [he] was subject to mandatory removal for aggravated felony by accepting
the plea pursuant to" the statutes he pled guilty to violating. In the other
certification, defendant stated that his "attorney never advised [him] to speak to
an immigration attorney prior to accepting the plea," and that he "never would
have accepted this plea if [he] kn[ew] . . . about the federal guidelines regarding
deportation involving the crimes [he] pled guilty to." Finally, in his pro se brief
before the PCR court, which he labelled as a "certification" but did not certify
his statements as true – as he did in the other two certifications – defendant
asserted "that his counsel not only failed to advise him of this consequence . . .
but also told him that he 'did not have to worry about immigration status.'"
Defendant provided no substantiation as to this factual assertion, nor did
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defendant's PCR counsel mention the alleged event in his brief to the PCR judge,
or at the PCR hearing. Rather, defendant's PCR counsel only asserted that
defendant's plea counsel should have advised defendant of the consequences
pertaining to deportation if he pleaded guilty, and should have advised defendant
to speak with an immigration attorney.
At most, defendant's petition alludes vaguely to his former attorneys'
failure to tell him about deportation consequences. Such "bald assertions" of
ineffectiveness are inadequate to support a prima facie claim. State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999); see also State v. Porter,
216 N.J. 343, 349 (2013). The PCR judge correctly denied defendant's petition
without an evidentiary hearing.
Defendant also argues he received ineffective assistance when his trial
counsel failed to contest the search and seizure in the case. Although a
suppression motion was filed, it was withdrawn when the plea agreement was
reached. The PCR judge found the withdrawal of the motion was reasonable
and that defendant benefitted from the plea agreement. We see no merit in
defendant's allegations regarding the withdrawal of the suppression motion.
Defendant did not assert a colorable claim of innocence, and the evidence
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against him was overwhelming. Nevertheless, defendant received a very
favorable plea agreement, which allowed him to avoid a state prison term.
Affirmed.
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