NOT FOR PUBLICATION WITHOUT THE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-5153-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RAMON ALATORRE,
Defendant-Appellant.
___________________________________
Argued October 19, 2016 – Decided October 25, 2017
Before Judges Fuentes, Simonelli and Carroll.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
10-10-1812.
Michael Noriega argued the cause for appellant
(Bramnick, Rodriguez, Grabas, Arnold & Mangan,
LLC, attorneys; Mr. Noriega, of counsel and
on the brief).
Erin M. Campbell, Assistant Prosecutor, argued
the cause for respondent (Esther Suarez,
Hudson County Prosecutor, attorney; Ms.
Campbell, on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
Defendant Ramon Alatorre appeals from the order of the
Criminal Part denying his post-conviction relief (PCR) petition.
We affirm.
In October 2010, a Hudson County grand jury returned
Indictment No. 10-10-1812 against defendant charging him with two
counts of second degree aggravated assault by attempting to cause
or purposely or knowingly cause serious bodily injury to the
victim, N.J.S.A. 2C:12-1(b)(1); N.J.S.A. 2C:11-1(b), and two
counts of third degree aggravated assault by attempting to cause
or causing significant bodily injury to the victim, N.J.S.A. 2C:12-
1(b)(7); N.J.S.A. 2C:11-1(d). On January 11, 2011, the Hudson
County Prosecutor rejected defendant’s application for admission
into the Pretrial Intervention Program (PTI) based on the factors
listed in N.J.S.A. 2C:43-12(e) and Rule 3:28, including that he
entered "the United States in 2001 and provided no documentation
of his status in this country."
On February 3, 2011, defendant entered into a negotiated
agreement with the State through which he agreed to plead guilty
to one count of third degree aggravated assault under N.J.S.A.
2C:12-1(b)(7). In exchange, the State agreed to recommend that
the court sentence defendant to a term of imprisonment not to
exceed three years. Defendant was free to argue that the court
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impose a non-custodial term of probation. Defendant was
represented by private counsel at the time.
At his request, the court provided defendant with a certified
Spanish language interpreter at the plea hearing. In response to
the judge's question, defendant stated under oath that he was born
in 1984, making him twenty-six years old at the time. His
educational background included completing one year of college.
The judge questioned defendant directly and reviewed with him the
constitutional rights he was agreeing to waive as part of the plea
agreement. Defendant answered all of the judge's questions
responsively. He also specifically stated that he had read and
reviewed the plea form with his attorney and had signed the form
voluntarily.
The plea form defendant signed included question 17, which
asked the following questions:
"Questions 17(a): Are you a citizen of the United
States? [Yes] [No]"
Defendant circled the box indicating "[No]."
"Question 17(b): Do you understand that if you are not
a United States citizen or national, you may be deported
by virtue of your plea of guilty? [Yes] [No]"
Defendant circled the box indicating "[Yes]."
"Question 17(c): Do you understand that if your plea of
guilty is to a crime considered an "aggravated felony"
under Federal law you will be subject to
deportation/removal? [Yes] [No]"
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Defendant circled the box indicating "[Yes]."
"Question 17(d): Do you understand that you have the
right to seek legal advice on your immigration status
prior to entering a plea of guilty? [Yes] [No]"
Defendant circled the box indicating "[Yes]."
Defendant then provided the following factual basis in
support of his guilty plea:
DEFENSE COUNSEL: Mr. Alatorre, on July 4,
2010, were you in the City of Union City in
the County of Hudson?
DEFENDANT: Yes.
DEFENSE COUNSEL: And on that date you were
with a Mr. Louis Dominguez (phonetic)?
DEFENDANT: Yes.
DEFENSE COUNSEL: And on that date did Mr.
Louis Dominguez strike you?
DEFENDANT: Yes.
DEFENSE COUNSEL: Okay, now after Mr. Dominguez
stroke [sic] you first, did you hit Mr.
Dominguez?
DEFENDANT: Yes.
. . . .
DEFENSE COUNSEL: I have no further questions.
. . . .
PROSECUTOR: Judge . . . my only question is
based on that factual basis is counsel waiving
any claim of self[-]defense?
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DEFENSE COUNSEL: We . . . are waiving [any]
claim of self[-]defense, Judge. Just at the
time of sentencing[.] [W]e will . . . be
arguing that . . . is a mitigating factor as
to how this altercation started, Judge.
THE COURT: So, the offense is based on the
fact that after Mr. Dominguez, the victim,
fell to the floor, it was after that that Mr.
Alatorre continued to strike him?
DEFENSE COUNSEL: Correct, Judge.
THE COURT: Mr. Alatorre, is that in fact what
happened, sir?
DEFENDANT: Yes.
On March 25, 2011, defendant appeared before the court for
sentencing. Before imposing sentence, the judge made the following
statement:
I note for the record that Mr. Alatorre has
been in the United States ten years, he is 26
now and apparently during that time there has
been no incident that has brought him before
a criminal court. So I'm going to find
aggravating factor 9. I also find mitigating
factors [N.J.S.A. 2C:44-1b] 7 and 10. The
mitigating factors outweigh the aggravating
factors.
The judge sentenced defendant to a noncustodial term of probation
of two years, conditioned upon a substance abuse evaluation, and
compliance with any requirements or recommendations made by the
evaluator. The judge also required that defendant remain gainfully
employed and "provide proof" he was employed "to the Probation
Officer."
5 A-5153-14T2
On December 19, 2014, more than one year after his two-year
term of probation had ended, defendant filed a PCR petition
alleging ineffective assistance of counsel based on his attorney's
failure "to investigate whether this particular charge would be
treated as [a] removable offense pursuant to any other immigration
laws." Defendant also claimed that his attorney advised him "that
because he was pleading to a [t]hird [d]egree offense, and only
receiving probation, he would not face deportation consequences."
Defendant noted in his petition that his criminal case "arose" one
year after the United States Supreme Court’s decision in Padilla
v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284
(2010). As was the case at the time he pled guilty, defendant
filed this PCR petition represented by private counsel, although
obviously by a different attorney.
On April 17, 2015, defendant’s PCR petition came for oral
argument before Judge Lourdes I. Santiago. In the course of her
interaction with PCR counsel, Judge Santiago noted that defendant
did not allege that he was facing imminent deportation as a
consequence of his conviction, or that any kind of immigration
enforcement action had begun in connection with his conviction.
The PCR petition merely averred that he was "presently removable
from the country." Judge Santiago thus emphasized that independent
of the criminal conviction, defendant "was inadmissible by . . .
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virtue of his existence in the United States." Judge Santiago
reserved decision at the conclusion of oral argument. In a letter-
opinion dated May 29, 2015, Judge Santiago described at length the
procedural history of the case and explained the legal basis for
denying defendant’s PCR petition. Judge Santiago explained:
At the time of the plea, the Petitioner was
undocumented and hence removable from the
United States. Any future rights to legalize
his status in the United States would be
subject to his meeting admissibility criteria
under the [Immigrations and Naturalization
Act].
. . . .
By virtue of Question 17(b) on the plea form,
and by virtue of the dialogue between [the
plea Judge] and the Petitioner, it is without
a doubt that Petitioner was advised that his
guilty plea may carry immigration
consequences. The Petitioner was further
advised that he had the right to seek legal
advice on his immigration consequences prior
to entering the plea.
Applying the standards established by the United States
Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our
Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), Judge
Santiago concluded defendant did not make out a prima facie case
of ineffective assistance of counsel. Consequently, defendant was
not entitled to an evidentiary hearing. State v. Preciose, 129
7 A-5153-14T2
N.J. 451, 462-63 (1992); R. 3:22-10. Judge Santiago issued an
order dated May 29, 2015 memorializing her ruling.
Against this record defendant now appeals raising the
following arguments:
POINT I
THE LOWER COURT ERRED IN DENYING DEFENDANT'S
REQUEST FOR AN EVIDENTIARY HEARING WHERE
DEFENDANT SET FORTH A PRIMA FACIE CASE THAT
COUNSEL PROVIDED INCORRECT ADVICE CONCERNING
HIS IMMIGRATION CONSEQUENCES.
POINT II
DEFENDANT'S ATTORNEY WAS CONSITUTIONALLY
[SIC] DEFICIENT, WHERE HE PROVIDED ERRONEOUS
ADVICE CONCERNING DEFENDANT'S IMMIGRATION
CONSEQUENCES AND DEFENDANT WOULD NOT HAVE
PLEAD GUILTY BUT FOR SUCH ADVICE.
A. COUNSEL WAS CONSTITUTIONALLY
DEFICIENT BY INCORRECTLY ADVISING
DEFENDANT ABOUT THE APPLICABILITY
OF THE AGGRAVATED FELONY PROVISION.
B. DEFENDANT'S DECISION TO PLEAD
GUILTY WOULD HAVE BEEN DIFFERENT BUT
FOR TRIAL COUNSEL'S CONSITUTIONAL
[SIC] DEFICIENCY.
We reject these arguments and affirm substantially for the
reasons expressed by Judge Santiago in her letter-opinion. We add
only the following brief comments. Pursuant to the standards
established by the Court in Strickland, a defendant must
demonstrate that defense counsel's performance was deficient.
Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed.
8 A-5153-14T2
2d at 693. Second, he must show there exists "a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Id. at 694,
104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
In determining a claim of ineffective assistance of counsel
in a case in which a defendant pled guilty, "the issue is whether
it is ineffective assistance of counsel for counsel to provide
misleading, material information that results in an uninformed
plea, and whether that occurred here." State v. Nunez-Valdez, 200
N.J. 129, 139-40 (2009). Here, the record is devoid of any
indication that defendant would have rejected the terms of the
plea agreement if his trial attorney had apprised him that, as an
undocumented alien, he was subject to deportation as a consequence
of this conviction. Furthermore, as Judge Santiago noted,
defendant has not demonstrated any prejudice caused by counsel’s
alleged deficiencies.
Affirmed.
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