NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5070-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FRANCISCO OROPENZA-LIMA,
Defendant-Appellant.
____________________________
Submitted May 22, 2018 – Decided June 22, 2018
Before Judges Fasciale and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
15-05-0644.
Joseph E. Krakora, Public Defender, attorney
for appellant (William Welaj, Designated
Counsel, on the brief).
Dennis Calo, Acting Bergen County Prosecutor,
attorney for respondent (Jenny X. Zhang,
Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Francisco Oropenza-Lima appeals from the denial of
his post-conviction relief (PCR) petition without an evidentiary
hearing, arguing:
POINT I
THE POST-CONVICTION RELIEF COURT ERRED IN
DENYING THE DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF WITHOUT AFFORDING HIM AN
EVIDENTIARY HEARING TO FULLY ADDRESS HIS
CONTENTION THAT HE WAS ENTITLED TO WITHDRAW
HIS GUILTY PLEA ON THE BASIS HE HAD FAILED TO
RECEIVE ADEQUATE LEGAL REPRESENTATION FROM
TRIAL COUNSEL REGARDING THE DEPORTATION
CONSEQUENCES ARISING OUT OF HIS GUILTY PLEA,
RESULTING IN A GUILTY PLEA WHICH HAD NOT BEEN
FREELY, KNOWINGLY AND VOLUNTARILY ENTERED.
We disagree and affirm.
Absent an evidentiary hearing, our review of the factual
inferences drawn by the PCR court from the record is de novo.
State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016).
Likewise, we review de novo the PCR court's legal conclusions.
Ibid.
To establish a PCR claim of ineffective assistance of counsel,
a defendant must satisfy the test formulated in Strickland v.
Washington, 466 U.S. 668, 687 (1984), and adopted by our Supreme
Court in State v. Fritz, 105 N.J. 42, 58 (1987), first by "showing
that counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed . . . by the Sixth
Amendment," Fritz, 105 N.J. at 52 (quoting Strickland, 466 U.S.
2 A-5070-16T4
at 687); then by proving he suffered prejudice due to counsel's
deficient performance, Strickland, 466 U.S. at 687, 691-92.
Defendant must show by a "reasonable probability" that the
deficient performance affected the outcome. Fritz, 105 N.J. at 58.
The array of inadequate attorney advice asserted by defendant
is varied. In his PCR petition he maintained "my attorney said I
would not be deported." In his amended PCR petition he claimed
his attorney advised him "because he had been in this country for
such a long period of time (over ten years) and had two children
here," his term of incarceration would be no more than
approximately one year and that "he would not be deported."
Defendant's supplemental certification echoes those contentions
and adds that his counsel told him after he served his prison
term, he could hire an immigration attorney "to manage [his] case
and achieve this result."
We determine, based on our review of the record, the trial
judge correctly denied an evidentiary hearing because defendant
did not establish a prima facie case in support of his PCR
application by demonstrating "the reasonable likelihood of
succeeding" under the Strickland test. State v. Preciose, 129
N.J. 451, 462-63 (1992); R. 3:22-10(b). Judge James J. Guida
found defendant was properly advised of the penal and immigration
consequences of his plea as required by Padilla v. Kentucky, 559
3 A-5070-16T4
U.S. 356 (2010).1 As such, defendant failed to make a prima facie
showing of success under Strickland.
After the PCR hearing, Judge Guida – who also presided over
defendant's plea hearing and sentencing – found that
both in the plea allocution and in the written
plea form, which is in Spanish and which [as
to] the defendant had the benefit of
translation, clearly reflects that he would
be serving a [six]-year term at sentence, and
that . . . for [thirty] months of that term .
. . he would be ineligible for parole.
So [defendant] knew on the date of the
plea both orally from the [c]ourt, in writing
in the Spanish-[language] form plea agreement,
and through the interpreter that he would
serve a minimum of [thirty] months . . . before
he would be eligible for parole.
Judge Guida also noted that in question seventeen of the plea
form — posed in English and Spanish – defendant answered that he
was not a United States citizen and knew he would be deported as
a result of the plea agreement; the judge highlighted that "will
be deported" was handwritten next to defendant's answers and
observed defendant "had the benefit of a Spanish[-]language
1
"The weight of prevailing professional norms supports the view
that counsel must advise [a] client regarding the risk of
deportation." Padilla, 559 U.S. at 367. "To provide effective
assistance of counsel, post-Padilla, a defense attorney is
required to address, in some manner, the risk of immigration
consequences of a non-citizen defendant's guilty plea." Blake,
444 N.J. Super. at 295. "The failure to do so constitutes
'deficient performance of counsel.'" Id. at 296 (quoting State
v. Gaitan, 209 N.J. 339, 380 (2012)).
4 A-5070-16T4
translator" when he completed the plea form. The judge further
found that the record reflected his advice to defendant during the
plea colloquy that he would be deported and defendant's sworn
response that, notwithstanding that fact, he knowingly and
voluntarily accepted the plea agreement. And without any protest
from defendant who had the opportunity to address the trial court
at sentencing, defendant's counsel requested a lenient state
prison sentence because defendant was going to be deported.
The record fully supports Judge Guida's findings. During the
plea hearing, defendant admitted he spoke with an immigration
attorney. The judge, after advising him of the second-degree
range plea offer, pointedly told defendant "the consequences are
that you will be deported after you serve your sentence"; defendant
said he understood those consequences.
Defendant's averment that his counsel advised he would not
be deported and would serve only a year or so before an immigration
attorney could help him avoid deportation, and his explanation
that he followed counsel's advice to agree with any question posed
during the plea process even if the answer was false, are
contradicted by his written and sworn oral responses during the
plea process, and counsel's plea for a lenient sentence based on
defendant's deportation. These bare assertions, belied throughout
the record of proceedings, are "insufficient to support a prima
5 A-5070-16T4
facie case of ineffectiveness." State v. Cummings, 321 N.J. Super.
154, 171 (App. Div. 1999); see also Blake, 444 N.J. Super. at 299.
An evidentiary hearing — not a proper vehicle to explore PCR claims
— was not warranted. See State v. Marshall, 148 N.J. 89, 157-58
(1997).
We also agree with Judge Guida that defendant failed to meet
the second Strickland prong by failing to establish – assuming
counsel misadvised him of his immigration consequences — that
there was a reasonable probability that, but for counsel's errors,
he would have rejected the plea offer and gone to trial. State
v. DiFrisco, 137 N.J. 434, 528 (1994). Defendant, who was found
with over five ounces of cocaine in his car, faced a ten- to
twenty-year state prison sentence on the first-degree possession
with intent to distribute a controlled dangerous substance (CDS)
charge, N.J.S.A. 2C:35-5(a)(1), -5(b)(1), in count one of the
indictment. N.J.S.A. 2C:43-6(a)(1). He faced a mandatory parole
ineligibility term of one-third to one-half of the sentence
imposed. N.J.S.A. 2C:35-5(b)(1).
Defendant was also indicted for second-degree possession of
a weapon during the commission of a CDS-related offense, N.J.S.A.
2C:39-4.1(a) (count two); second-degree unlawful possession of a
handgun, N.J.S.A. 2C:39-5(b) (count three); third-degree receiving
stolen property, N.J.S.A. 2C:20-7(a) (count four); third-degree
6 A-5070-16T4
possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count five); and
fourth-degree possession of drug paraphernalia with the intent to
distribute, N.J.S.A. 2C:36-3 (count six). He could have been
sentenced to a consecutive term on the weapons offenses. We
therefore affirm the judge's determination that defendant failed
to establish that, but for counsel's assumed error, he would not
have pleaded guilty to a deal that netted a six-year sentence with
thirty months of parole ineligibility. State v. O'Donnell, 435
N.J. Super. 351, 371 (App. Div. 2014) (holding a defendant "must
convince the court that a decision to reject the plea bargain
would have been rational under the circumstances" (quoting
Padilla, 559 U.S. at 372)).
Affirmed.
7 A-5070-16T4