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NOT FOR PUBLICATION WITHOUT THE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

2 A-2212-15T2
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?

3 A-2212-15T2
 [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.

4 A-2212-15T2
 [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,

5 A-2212-15T2
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

6 A-2212-15T2
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

8 A-2212-15T2
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).

13 A-2212-15T2
Affirmed.

14 A-2212-15T2