STATE OF NEW JERSEY VS. RAMON ALATORRE(10-10-1812, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-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 . . .

6 A-5153-14T2
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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