STATE OF NEW JERSEY VS. JOSE FRANCISCO REINOSO (10-07-1691, ATLANTIC 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NOT FOR PUBLICATION WITHOUT THE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-5364-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE FRANCISCO REINOSO,

Defendant-Appellant.
____________________________

Submitted July 9, 2018 – Decided July 24, 2018

Before Judges Carroll and Rose.

On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No.
10-07-1691.

Condon & Theurer, attorneys for appellant
(Kathleen Mary Theurer, on the brief).

Damon G. Tyner, Atlantic County Prosecutor,
attorney for respondent (John J. Lafferty, IV,
Assistant Prosecutor, of counsel and on the
brief).

PER CURIAM

Defendant Jose Francisco Reinoso appeals from a June 30, 2016

order denying his petition for post-conviction relief (PCR) after

an evidentiary hearing. We affirm.
 I.

We discern the salient facts and procedural history from the

record on appeal. Defendant was born in the Dominican Republic

in 1959, and thereafter entered the United States in 1987. At the

time of his arrest on drug charges in June 2009, defendant held

the status of permanent legal resident, but he was not a United

States citizen.

In July 2010, defendant was charged in Atlantic County

Indictment No. 10-07-1691 with third-degree possession of cocaine,

N.J.S.A. 2C:35-10(a)(1) (count one); third-degree distribution of

cocaine, N.J.S.A. 2C:35-5(b)(3) (count two); and third-degree

distribution of cocaine within 1000 feet of a school zone, N.J.S.A.

2C:35-7 (count three).

On November 15, 2010, pursuant to a negotiated plea agreement,

defendant pled guilty to count two, as amended to third-degree

possession with intent to distribute cocaine, N.J.S.A. 2C:35-

5(b)(3). The State agreed to waive any prison term and associated

parole ineligibility period that might otherwise be applicable

pursuant to the Attorney General's Brimage1 Guidelines, and

recommend that defendant be sentenced to a non-custodial term of

1
State v. Brimage, 153 N.J. 1 (1998).

2 A-5364-15T4
probation. The State also agreed to dismiss the remaining counts

of the indictment.

During the plea proceeding, defendant testified he was

pleading guilty of his own free will, he was satisfied with his

attorneys' services, and he had no questions for the court or

counsel. Defendant provided a factual basis for his guilty plea,

acknowledging he possessed cocaine with the intention of sharing

it with others.

On January 14, 2011, defendant was sentenced to a five-year

probationary term and ordered to pay applicable fees and penalties.

Among the various conditions of probation imposed, defendant was

directed to comply with any Immigration and Customs Enforcement

requirements. Defendant did not file a direct appeal.

Sometime after sentencing, the United States Department of

Homeland Security commenced removal2 proceedings against

defendant. Consequently, on June 16, 2015, an order of removal

was entered, and defendant was deported to the Dominican Republic

where he currently resides.

Defendant filed a timely PCR petition claiming ineffective

assistance of plea counsel. Specifically, he asserted counsel

2
"Removal" is the current statutory term for what was previously
referred to as "deportation." State v. Gaitan, 209 N.J. 339, 345
n.1 (2012).

3 A-5364-15T4
misadvised him of the immigration consequences of his plea, failed

to provide him with discovery, and failed to discuss the

possibility of entering into the Pretrial Intervention (PTI)

program.

On May 18, 2016, Judge Patricia M. Wild, who had not presided

over the plea or sentencing proceedings, conducted an evidentiary

hearing on defendant's ineffective assistance of counsel claims.

Defendant's plea counsel, Mark Roddy, Esq., and his associate,

Meredith Hamson, Esq., were called as witnesses by the State.

Roddy testified to his experience, having handled between two

and three thousand criminal matters prior to representing

defendant. He stated he met with defendant and was aware defendant

was not a United States citizen. Roddy was further aware that a

conviction on any of the drug charges would affect defendant's

immigration status. Based on his prior experience and the nature

of the charges, Roddy opined it was unlikely defendant would be

accepted into PTI, if he had applied.

After obtaining and reviewing discovery, Roddy characterized

the State's proofs as "fairly strong. It was a sale in a school

zone that the [S]tate had recorded with a consensual intercept

recording." Contrary to defendant's assertion, Roddy was "sure"

he reviewed the discovery with defendant.

4 A-5364-15T4
 After that testimony was elicited, defendant's PCR counsel

advised the judge she "just became aware" Hamson was present in

court, and requested that the judge sequester Hamson. The judge

denied the application

on the basis that [Roddy and Hamson] are both
professionals. They are officers of the
court, and I see no prejudice to the defendant
by having them both here. As a matter of
fact, I believe it might be helpful to the
[c]ourt in moving the case along so that . .
. [the prosecutor] may be able to dispense
with some of the preliminar[y questions] with
respect to [Hamson].

Roddy then continued his testimony, responding to the

prosecutor's questions on direct examination as follows:

Q. Did you ever inform the defendant that if
he accepted the plea he, and I quote, wasn't
going anywhere?

A. No. I wouldn't say that.

Q. Was it your understanding at the time of
the plea that a plea to intent to distribute
was an aggravated felony requiring mandatory
deportation?

A. It's an aggravated felony. There's no
question about it. What the feds do is up to
them.

Q. And is it your practice to inform clients
of potential immigration consequences such as
deportation?

A. I have been doing that since 1993.

5 A-5364-15T4
 Q. Do you have any recollection if you
informed the defendant that he would be
deported if he accepted the plea?

A. I don't recall a specific conversation. I
know that I would have told him because I tell
everybody the same thing. . . .

Q. What would you have told him?

A. I'd tell him he's deportable. I'd say
you're more deportable if you go to jail
because the feds come to the county jail once
a week and see who's in there and what they're
in there for and whether they're citizens. So
I said that's . . . number one. I would have
told him that I've had people that have been
charged with more serious stuff that have
ducked deportation and people that are charged
with less serious stuff that have been
deported. So, there's no[] guarantee. The
feds do whatever they're [going to] do. But
I know that it increases your chances of
success if you're not locked up because that's
normally who they focus on. I would have told
him that.

On cross-examination, Roddy indicated he recommended that

defendant consult with an immigration lawyer prior to entering his

guilty plea.

Hamson worked as Roddy's associate and she appeared with

defendant at the November 15, 2010 plea proceedings. Hamson was

aware defendant was not a United States citizen, and she had prior

experience representing non-citizens in removal proceedings. Like

Roddy, Hamson was also aware that a conviction on any of the

charges would affect defendant's immigration status.

6 A-5364-15T4
 Hamson testified she circled the answers to the questions on

the plea form based on the responses she received from defendant.

These included the answers to question 17, which reflected that

defendant was not a United States citizen, and that he understood

he might be deported by virtue of his guilty plea, he would be

subject to deportation/removal if his plea of guilty was to a

crime considered an "aggravated felony" under federal law, and he

had the right to seek legal advice on his immigration status prior

to entering a plea of guilty.

As noted, defendant had already been removed to the Dominican

Republic and consequently he testified telephonically at the

hearing. According to defendant, although he had met with Roddy

twice at Roddy's office, and thereafter at the courthouse, at no

time did Roddy review the discovery or discuss the PTI program

with him.

With respect to the immigration issue, defendant testified

as follows:

Q. Did Mr. Roddy explain to you the charge
that they wanted you to plead guilty to?

A. Yes. . . .

Q. And did he advise you of any immigration
consequences resulting from your plea of
guilt[y]?

7 A-5364-15T4
 A. At no time. He told me that there wouldn't
be any problems that I was going any place.
That's what he told me.

Q. So you asked him if there would be any
deportation consequences?

A. Yes. I asked him if I would have problems
with my documents. And he said you wouldn't
have any problems. That's [the] same words
he used.

Q. Did . . . Mr. Roddy indicate why, if at
all, the plea offer was a good plea offer?

A. No. He did not explain it. No.

Q. Did he advise you of . . . the likely
consequences if you did not take the plea?

A. He told me that there was a video. I never
saw it because I never sell [drugs]. But he
said that there was a call made from my
telephone about selling drugs and that I could
get six months in jail and that's why I . . .
pled guilty.

Q. And so . . . . If you knew you could be
deported, would you have pled guilty?

A. No. I would have gone to trial even if I
would have gotten five years in prison. If I
would have known I was going to be deported.
He never said anything to me ever.

Defendant also denied speaking with Hamson about deportation

at the time he initialed and signed the plea form. On cross-

examination, however, defendant testified he could not recall

whether Hamson reviewed the questions on the plea form with him

or circled the answers on the plea form.

8 A-5364-15T4
 On June 30, 2016, Judge Wild entered an order denying

defendant's PCR petition. In her comprehensive written opinion

that accompanied the order, the judge found the testimony of Roddy

and Hamson credible. By contrast, Judge Wild found defendant was

not a credible witness due to "several inconsistencies in his

testimony" and because portions of his testimony were contradicted

by his testimony during the plea hearing. Ultimately, the judge

found "[defendant's] testimony that he was not informed of the PTI

program; not informed of immigration consequences; and that he

entered his plea 'under pressure' is simply not credible." This

appeal followed.

On appeal, defendant argues:

POINT I

THE COURT'S DENIAL OF DEFENSE COUNSEL'S
REQUEST FOR SEQUESTRATION OF STATE'S WITNESS
WAS REVERSIBLE ERROR.

POINT II

THE COURT IMPROPERLY DENIED DEFENDANT'S
PETITION FOR POST CONVICTION RELIEF.

II.

A.

We first address defendant's contention that the trial

court's failure to sequester Hamson constitutes reversible error.

9 A-5364-15T4
We conclude this argument does not warrant extended discussion.

We add the following brief comments.

Trial courts have discretion to order the sequestration of

witnesses. State v. Miller, 299 N.J. Super. 387, 399 (App. Div.

1997). Pursuant to N.J.R.E. 615, "At the request of a party or

on the court's own motion, the court may, in accordance with law,

enter an order sequestering witnesses." The purpose of

sequestration is to prevent prospective witnesses from hearing

other witnesses testify so that a witness' testimony is not shaped

or tailored by another witness' testimony. State v. Williams, 404

N.J. Super. 147, 160 (App. Div. 2008). A witness who violates a

sequestration order may be barred from giving testimony at trial.

State v. Dayton, 292 N.J. Super. 76, 89 (App. Div. 1996).

Nevertheless, "Absent a clear showing of prejudice[,] an

inadvertent violation of a sequestration order does not trigger

automatic exclusion of the witness' testimony." Williams, 404

N.J. Super. at 160.

Here, we agree with defendant that the status of Roddy and

Hamson as attorneys should not serve as a per se basis to deny

sequestration. Nonetheless, defendant has failed to identify any

prejudice that resulted because Hamson was not sequestered.

Initially, we note the sequestration request was not made until

Roddy had given substantial testimony at the hearing. Moreover,

10 A-5364-15T4
Roddy primarily testified to the plea negotiations and his pre-

plea conversations with defendant, while Hamson's testimony

focused on the plea hearing itself, at which Roddy was not present.

Because their testimony essentially did not converge, the risk of

Hamson tailoring her testimony after hearing Roddy testify was

minimal. Accordingly, under the facts presented, we find no abuse

of discretion in the court's decision to deny defendant's belated

sequestration application that would warrant granting a new

hearing or suppressing Hamson's testimony.

B.

We next address defendant's contention that the trial court

erroneously denied his PCR petition. In doing so, we review the

legal conclusions of a PCR court and mixed questions of fact and

law under the de novo standard of review. State v. Harris, 181

N.J. 391, 420 (2004). Where an evidentiary hearing has been held,

we accord deference "[i]n reviewing a PCR court's factual findings

based on live testimony" and should not disturb "the PCR court's

findings that are supported by sufficient credible evidence in the

record." State v. Pierre, 223 N.J. 560, 576 (2015) (quoting State

v. Nash, 212 N.J. 518, 540 (2013)).

The Sixth Amendment to the United States Constitution and

Article I, Paragraph 10 of the New Jersey Constitution guarantee

that a defendant in a criminal proceeding has the right to the

11 A-5364-15T4
assistance of counsel in his defense. The right to counsel

includes "the right to the effective assistance of counsel." Nash,

212 N.J. at 541 (quoting Strickland v. Washington, 466 U.S. 668,

686 (1984)).

In Strickland, the Court established a two-part test, later

adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58

(1987), to determine whether a defendant has been deprived of the

effective assistance of counsel. Strickland, 466 U.S. at 687.

Under the first prong of the Strickland standard, a petitioner

must show that counsel's performance was deficient. It must be

demonstrated that counsel's handling of the matter "fell below an

objective standard of reasonableness" and that "counsel made

errors so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment." Id. at 687-88.

Under the second prong of the Strickland standard, a defendant

"must show that the deficient performance prejudiced the defense."

Id. at 687. There must be a "reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different." Id. at 694. In the context of a PCR

petition challenging a guilty plea based on the ineffective

assistance of counsel, the second prong is established when the

defendant demonstrates a "reasonable probability that, but for

counsel's errors, [the defendant] would not have pled guilty and

12 A-5364-15T4
would have insisted on going to trial." State v. Nuñez-Valdéz,

200 N.J. 129, 142 (2009) (alteration in original) (quoting State

v. DiFrisco, 137 N.J. 434, 457 (1994)).

A petitioner must establish both prongs of the Strickland

standard in order to obtain a reversal of the challenged

conviction. Strickland, 466 U.S. at 687; Fritz, 105 N.J. at 52;

Nash, 212 N.J. at 542. "With respect to both prongs of the

Strickland test, a defendant asserting ineffective assistance of

counsel on PCR bears the burden of proving his or her right to

relief by a preponderance of the evidence." Gaitan, 209 N.J. at

350; see also State v. Echols, 199 N.J. 344, 357 (2009); State v.

Goodwin, 173 N.J. 583, 593 (2002). A failure to satisfy either

prong of the Strickland standard requires the denial of a petition

for PCR. Strickland, 466 U.S. at 700.

In the context of plea agreements of non-citizen defendants,

the performance of plea counsel is deficient under the first prong

of the Strickland standard where counsel "provides false or

misleading information concerning the deportation consequences of

a plea of guilty." Nuñez-Valdéz, 200 N.J. at 138. In addition,

in Padilla v. Kentucky, 559 U.S. 356 (2010), the United States

Supreme Court held that plea counsel "is required to address, in

some manner, the risk of immigration consequences of a non-citizen

13 A-5364-15T4
defendant's guilty plea."3 State v. Blake, 444 N.J. Super. 285,

295 (App. Div. 2016) (citing Padilla, 559 U.S. at 367). The

Padilla Court created a "two-tiered analytical structure for

assessing the duty of effective assistance," which "depend[s] on

the certainty of immigration consequences flowing from the plea."

Gaitan, 209 N.J. at 356, 380.

"[I]mmigration law is often complex, and the consequences of

a conviction are often far from clear." Blake, 444 N.J. Super.

at 295 (citing Padilla, 559 U.S. at 369). In circumstances where

"the terms of the relevant immigration statute are succinct, clear,

and explicit in defining the removal consequence[s,]" then an

attorney is obliged to be "equally clear." Padilla, 559 U.S. at

368-69. Counsel's failure "to point out to a noncitizen client

that he or she is pleading to a mandatorily removable offense

[constitutes] deficient performance of counsel." Blake, 444 N.J.

Super. at 300 (quoting Gaitan, 209 N.J. at 380).

We are convinced defendant failed to sustain his burden of

proving by a preponderance of the evidence that his plea counsel's

performance was deficient under the first prong of the Strickland

standard. The credible evidence in the record supports the court's

finding that Roddy did not provide misleading advice to defendant

3
The holding in Padilla applied prospectively, and is applicable
to defendant's plea here. Gaitan, 209 N.J. at 380.

14 A-5364-15T4
regarding the immigration consequences of his plea. Nuñez-Valdéz,

200 N.J. at 139-40. Roddy specifically denied advising defendant

that he would not be deported. Although defendant testified to

the contrary, we defer to Judge Wild's determination that Roddy's

testimony was credible and defendant's testimony was not. See

State v. L.A., 433 N.J. Super. 1, 17 (App. Div. 2013) ("When

reviewing a PCR court's determination, we generally defer to the

court's factual findings, including credibility determinations,

if they are supported by 'adequate, substantial and credible

evidence.'" (quoting Harris, 181 N.J. at 415)).

Moreover, the credible evidence supports the court's

conclusion that Roddy provided constitutionally effective

assistance by advising defendant that he was deportable and that

he had the opportunity to confer with immigration counsel.

Notably, Judge Wild also found credible Hamson's testimony that

defendant provided affirmative responses to the questions on the

plea form confirming he understood he may be deported and had the

opportunity to confer with immigration counsel. Defendant

therefore did not prove by a preponderance of the evidence that

plea counsel's performance was deficient under the first prong of

the Strickland standard.

We are also satisfied that defendant did not sustain his

burden of establishing the second prong of the Strickland standard

15 A-5364-15T4
because he failed to present "sufficient evidence to show 'a

reasonable probability that, but for counsel's errors, [he or she]

would not have pleaded guilty and would have insisted on going to

trial.'" State v. O'Donnell, 435 N.J. Super. 351, 376 (App. Div.

2014) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

Defendant was required to demonstrate that "had he been properly

advised, it would have been rational for him to decline the plea

offer and insist on going to trial and, in fact, that he probably

would have done so[.]" State v. Maldon, 422 N.J. Super. 475, 486

(App. Div. 2011) (citing Padilla, 559 U.S. at 372).

Defendant did not offer any evidence beyond his bare

conclusory assertion that he would not have pled guilty had he

known of the immigration consequences. Standing alone, this does

not demonstrate a reasonable probability that but for counsel's

alleged deficiency defendant would not have accepted the plea

bargain. See State v. Cummings, 321 N.J. Super. 154, 170 (App.

Div. 1999) (holding "a petitioner must do more than make bald

assertions that he was denied the effective assistance of

counsel").

Defendant's remaining arguments with respect to counsel's

alleged failure to review discovery with him or advise him of the

availability of the PTI program are without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(2).

16 A-5364-15T4
Defendant's failure to prove both prongs of the Strickland standard

by a preponderance of the evidence required the denial of his PCR

petition. Nash, 212 N.J. at 542.

Affirmed.

17 A-5364-15T4