STATE OF NEW JERSEY VS. HECTOR W. GONZALEZ(01-06-0673 AND 01-07-0717, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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-0301-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HECTOR W. GONZALEZ, a/k/a CARLOS VALLE,

Defendant-Appellant.
_________________________________________

Submitted January 31, 2017 – Decided October 25, 2017

Before Judges Messano and Guadagno.

On appeal from the Superior Court of New
Jersey, Law Division, Passaic County,
Indictment Nos. 01-06-0673 and 01-07-0717.

Joseph E. Krakora, Public Defender, attorney
for appellant (David A. Gies, Designated
Counsel, on the briefs).

Camelia M. Valdes, Passaic County
Prosecutor, attorney for respondent (Tom
Dominic Osadnik, Assistant Prosecutor, of
counsel and on the brief).

PER CURIAM

Defendant Hector Gonzalez appeals from the denial of his

petition for post-conviction relief (PCR) without a hearing. We
have considered defendant's arguments in light of the record and

applicable legal standards and we affirm.

In June 2001, a grand jury sitting in Passaic County

returned an indictment (673)1 charging defendant and two others

with first-degree armed robbery and related weapons offenses.

On July 9, 2001, a different grand jury also sitting in Passaic

County returned an indictment (717) charging defendant with

third-degree terroristic threats, and weapons charges. A third

indictment (951), which is not the subject of this appeal,

charged defendant with aggravated assault and weapons charges.

After several delays, the three indictments were scheduled

for trial2 on March 17, 2003. On that day, defendant entered

into a negotiated plea agreement to dispose of the three pending

indictments. In return for defendant's guilty pleas to three

counts of first-degree robbery (673), one count of third-degree

terroristic threats, second-degree possession of a weapon for an

unlawful purpose (717), and third-degree aggravated assault

(951), the State agreed to recommend a fifteen-year term on the

1
For simplicity, we refer to the indictments by their last three
numbers.
2
The trial judge indicated he would try the robbery case first
followed "immediately" by the other two.

2 A-0301-15T2
robbery charges with concurrent seven and four-year terms on the

other counts.

Because defendant was scheduled to undergo surgery, the

first plea judge delayed his sentencing until October 3, 2003.

The judge told defendant he was aware that defendant was

recently arrested and indicted on new charges and was "very

reluctantly" continuing him on bail, only because of defendant's

claimed medical condition. In addition, the judge imposed a

10:00 p.m. curfew and required defendant to report to the bail

supervision unit weekly.

On May 8, 2003, defendant appeared before a different judge

and pled guilty pursuant to a plea agreement to second and

third-degree possession of cocaine with intent to distribute in

satisfaction of indictment 219. In return, the State

recommended a five-year term to run concurrent with the sentence

imposed on the March 2003 plea. The second plea judge also

scheduled sentencing for October 3, 2003.

Defendant had surgery in July 2003, but thereafter he

travelled to the Dominican Republic and failed to appear for

either sentence. Defendant, who was not a citizen of the United

States, remained a fugitive for six years before he reentered

the country illegally and was arrested on two additional

charges.

3 A-0301-15T2
 On February 24, 2012, defendant represented by new counsel

appeared for sentence before Judge Raymond A. Reddin on

indictments, 673, 951, 717, 219, and accusation 405, which

charged defendant under the name Carlos Valle. Defense counsel

informed Judge Reddin that defendant wanted to withdraw his

guilty pleas to the robbery and weapons charges under 673, and

717. On 219, 405, and 951, defendant was sentenced to

concurrent terms of five, three, and four years respectively.

After hearing oral argument, Judge Reddin denied

defendant's motion to withdraw his guilty pleas under 673 and

717 and sentenced him in accordance with the plea agreements.

Defendant appealed his sentence and the denial of his motion to

withdraw his guilty pleas. On April 28, 2014, we affirmed both.

On May 29, 2014, defendant filed a pro se PCR petition

alleging his plea counsel "duped" him into pleading guilty when

he requested a trial. After counsel was appointed, an amended

PCR petition was filed. On June 9, 2015, Judge Reddin heard

oral argument and denied the petition.

On appeal, defendant raises the following points:

POINT ONE

AN EVIDENTIARY HEARING IS NECESSARY TO
DETERMINE WHETHER THE DEFENDANT'S TRIAL
ATTORNEY PROVIDED INACCURATE ADVICE REGARDING
THE MANNER IN WHICH THE GUILTY PLEAS WOULD
IMPACT THE DEFENDANT'S IMMIGRATION STATUS.

4 A-0301-15T2
 POINT TWO

WHERE THE MOTION COURT DENIED THE DEFENDANT'S
APPLICATION TO WITHDRAW HIS GUILTY PLEAS AND
SENTENCED HIM WITHOUT KNOWLEDGE THAT THE
DEFENDANT WAS NOT A UNITED STATES CITIZEN, AN
EVIDENTIARY HEARING IS REQUIRED TO DETERMINE
WHETHER SUCH ACCURATE KNOWLEDGE WOULD HAVE
MADE A DIFFERENCE. (NOT RAISED BELOW)

We find no merit to either argument and affirm

substantially for the reasons set forth in Judge Reddin's

thoughtful and thorough oral decision. R. 2:11-3(e)(2). We

decline to address the argument made in Point Two as it was not

raised before the trial judge. State v. Witt, 223 N.J. 409, 450

(2015). We add only the following brief comments regarding

Point One.

Defendant contends that his plea counsel was ineffective

because he failed to adequately advise him of the immigration

consequences of his plea. The plea form contained the question,

"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?" Defendant answered "Yes" to the question. During the

allocution on defendant's plea, the following exchange addressed

immigration consequences:

[JUDGE]: Now, I draw your attention
particularly to question number 17 on page 3
of that form. Are you a citizen of the
United States?

5 A-0301-15T2
 [DEFENDANT]: No, I'm not.

[JUDGE]: Do you understand that by
pleading guilty here today, you may be
subject to deportation from this country?

[DEFENDANT]: I understand.

[JUDGE]: After serving your sentence, you
may be deported, you understand that?

[DEFENDANT]: Yes, I do.

Defendant entered his plea in 2003, seven years before the

Supreme Court would decide Padilla v. Kentucky, 559 U.S. 356,

369, 130 S. Ct. 1473, 1484, 176 L. Ed. 2d 284, 297 (2010), which

required defense attorneys to advise their noncitizen clients of

the immigration consequences of pleading guilty or risk

providing constitutionally deficient assistance of counsel.

Because Padilla represented a new constitutional rule of law, it

is not entitled to retroactive application on collateral review.

State v. Gaitan, 209 N.J. 339, 371 (2012).

The plea judge confirmed that defendant was aware of the

deportation consequences of his guilty plea and there is no

information in the record that defendant's plea counsel provided

inaccurate or misleading information. Defendant has failed to

satisfy either the deficiency or the prejudice prong of

Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052,

6 A-0301-15T2
2068, 80 L. Ed. 2d 674, 698 (1984), and was not entitled to an

evidentiary hearing or PCR relief.

Affirmed.

7 A-0301-15T2