STATE OF NEW JERSEY VS. JULIO FREZA (12-07-0563, SOMERSET 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NOT FOR PUBLICATION WITHOUT THE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-2390-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JULIO FREZA, a/k/a JULIO FRIZA,

Defendant-Appellant.
___________________________________

Submitted January 31, 2018 – Decided August 3, 2018

Before Judges Fuentes, Koblitz and Manahan.

On appeal from Superior Court of New Jersey,
Law Division, Somerset County, Indictment No.
12-07-0563.

Joseph E. Krakora, Public Defender, attorney
for appellant (Monique D. Moyse, Designated
Counsel, on the brief).

Michael H. Robertson, Somerset County
Prosecutor, attorney for respondent
(Alexander C. Mech, Assistant Prosecutor, of
counsel and on the brief).

PER CURIAM

Defendant Julio Freza appeals from the order of the Criminal

Part denying his post-conviction relief (PCR) petition. We affirm.
 A Somerset County Grand Jury returned an indictment against

defendant charging him with first degree robbery, N.J.S.A. 2C:15-

1, second degree burglary, N.J.S.A. 2C:18-2, second degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(a), two counts of fourth degree aggravated assault, N.J.S.A.

2C:12-1(b)(4), third degree criminal restraint, N.J.S.A. 2C:13-

2(a), and third degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(c)(1).

Defendant negotiated an agreement with the State through

which he pled guilty to all counts in the indictment. In exchange,

the State agreed to recommend that the court sentence defendant

on the first degree robbery charge to a term of imprisonment not

to exceed ten years, subject to an eighty-five percent period of

parole ineligibility and five years of parole supervision, as

mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

The State also agreed to recommend that the sentences imposed by

the court on the remaining charges run concurrent to the sentence

for the first degree robbery charge.

Because defendant's petition seeking PCR is based on

allegations of ineffective assistance of counsel related to the

collateral consequences that his criminal conviction had on his

immigration status, we will recite at length the parts of the plea

hearing that are relevant to this issue.

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 Defendant's native language is Spanish. At the plea hearing

held on February 28, 2014, defendant participated and communicated

with the judge and his attorney through a court-certified

interpreter. With the assistance of his attorney, defendant

completed the standard plea form approved by the Administrative

Office of the Court. This plea form is written in both English

and Spanish. Defendant circled his responses to answer the

questions on the form, and signed his name. Question 17 of the

plea form addressed directly defendant's immigration status and

the consequences of his criminal convictions:

Question 17(a): Are you a citizen of the
United States?

Defendant circled "No/No[.]"

Question 17(b): Do you understand that if you
are not a citizen of the United States, this
guilty plea may result in your removal from
the United States and/or stop you from being
able to legally enter or re-enter the United
States?

Defendant circled "Si/Yes[.]"

Question 17(c): "Do you understand that you
have the right to seek individualized advice
from an attorney about the effect your guilty
plea will have on your immigration status?"

Defendant circled "Si/Yes[.]"

Question 17(d): "Have you discussed with an
attorney the potential immigration
consequences of your plea?"

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 Defendant circled "No/No[.]"

Question 17(e): "Would you like the
opportunity to do so?"

Defendant circled "No/No[.]"

Question 17(f): Having been advised of the
possible immigration consequences and of your
right to seek individualized legal advice on
your immigration consequences, do you still
wish to plead guilty?

Defendant circled "Si/Yes[.]"

As required under Rule 3:9-2, the record of the plea hearing

shows the judge placed defendant under oath and thereafter

questioned him directly to confirm he understood the terms of the

plea agreement and the subject matter covered in the plea form.

The following colloquy illustrates this point:

THE COURT: Most importantly, it is of concern
to the [c]ourt that you are not a United States
citizen. Is that correct?

DEFENDANT: That's correct, yes.

THE COURT: And you understand that as a result
of your plea today that you will be deported?

DEFENDANT: Yes.

THE COURT: Have you had a chance to discuss
the matter with an immigration attorney?

DEFENDANT: No.

THE COURT: You had the chance but did not do
so?

DEFENDANT: Yes.

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 THE COURT: Do you wish to discuss the matter
with an immigration attorney?

DEFENDANT: If that is going to help me.

THE COURT: I'm sorry?

DEFENDANT: If that's going to help me.

THE COURT: Well, I've told you that as a result
of this plea you will be deported, and I can't
give you advice. I'm the Judge here. The
immigration attorney could advise you as to
the result of pleading to charges like this
clearly would lead to deportation. Knowing
that and understanding that, do you wish to
discuss the matter further with an immigration
attorney?

DEFENDANT: I don't care about this, your
Honor.

THE COURT: Well, it's his decision. I can't
make it for him.

DEFENDANT: Okay.

THE COURT: Okay what?

(Defendant and counsel confer off record.)

DEFENDANT: I understand that I'm going to be
deported, so it's not necessary to talk with
an immigration attorney.

THE COURT: It is not necessary?

INTERPRETER: Not necessary.

[(Emphasis added.)]

On May 30, 2014, the court sentenced defendant consistent

with the plea agreement to an aggregate term of ten years, subject

5 A-2390-16T4
to the parole restrictions required by NERA. Thereafter, defendant

filed a direct appeal challenging the sentence through the summary

process available under Rule 2:9-11. Relying on State v. Tate,

216 N.J. 300, 302-03 (2015), we remanded the matter for

resentencing for the court to merge the second degree possession

of a shotgun for an unlawful purpose with the first degree armed

robbery conviction. State v. Julio Freza, No. A-4326-14 (App.

Div. Oct. 28, 2015). On December 18, 2015, the trial court

corrected the error and resentenced defendant accordingly.

On January 7, 2016, defendant filed a pro se PCR petition and

supporting legal memorandum alleging, inter alia, that the trial

court and his attorney "misled defendant regarding the plea

consequences of deportation proceedings and his need for counsel

before such a plea was entered." In a certification attached to

the petition, defendant alleged that he: (a) "never agreed to

waive legal counsel for the deportation proceedings;" (b) "never

got an opportunity to explain [his] side of the events;" and (c)

"did not realize a guilty plea had been entered until after [he]

had left the courtroom." Defendant also denies the accuracy of

the transcript of the plea hearing that shows the colloquy between

the judge and defendant regarding the deportation consequences of

defendant's guilty plea.

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 The court assigned counsel to assist defendant prosecute the

PCR petition. On September 26, 2016, the PCR judge heard argument

from counsel. Although PCR counsel attempted to expand the focus

of defendant's PCR petition to matters outside his immigration

status, the PCR judge rejected this approach as untimely and not

supported by defendant's certification. Ultimately, the PCR judge

found defendant's unsupported allegations did not make out a prima

facie case of ineffective assistance of counsel to warrant an

evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462

(1992). The PCR judged found defendant did not present competent

evidence to establish that trial counsel's representation in this

case amounted to ineffective assistance.

Defendant now appeals raising the following argument.

POINT ONE

[DEFENDANT] IS ENTITLED TO AN EVIDENTIARY
HEARING ON HIS CLAIM THAT HIS ATTORNEY
RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.

New Jersey courts have adopted the rule formulated in

Strickland v. Washington, 466 U.S. 668 (1984) for determining

whether counsel's performance was ineffective for purposes of

the Sixth Amendment. See State v. Fritz, 105 N.J. 42 (1987). To

show ineffective assistance of counsel, a defendant must: (1)

"show that counsel's performance was deficient" such that "counsel

was not functioning as the counsel guaranteed the defendant by the

7 A-2390-16T4
Sixth Amendment," and (2) "show that the deficient performance

prejudiced the defense." Strickland, 466 U.S. at 687. "Unless a

defendant makes both showings, it cannot be said that the

conviction . . . resulted from a breakdown in the adversary process

that renders the result unreliable." Ibid.

Based on this standard, we reject defendant's argument and

affirm substantially for the reasons expressed by the PCR judge.

The record shows the trial court informed defendant of the

collateral consequences that his conviction would have on his

immigration status. The mere raising of a claim for PCR does not

entitle defendant to an evidentiary hearing. State v. Cummings,

321 N.J. Super. 154, 170 (App. Div. 1999). An evidentiary hearing

is only required when a defendant establishes a prima facie case

of ineffective assistance pursuant to the two-prong standard in

Strickland, and when "there are material issues of disputed fact

that cannot be resolved by reference to the existing record[.]"

R. 3:22-10.

Affirmed.

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