STATE OF NEW JERSEY VS. LUDGI G. DESROCHES(08-08-1869, 08-11-2520 AND 08-11-2521, MONMOUTH COUNTYAND 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NOT FOR PUBLICATION WITHOUT THE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-5357-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUDGI G. DESROCHES,

Defendant-Appellant.
______________________________

Submitted November 2, 2017 – Decided November 14, 2017

Before Judges Simonelli and Haas.

On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
08-08-1869 and Accusation Nos. 08-11-2520 and
08-11-2521.

Joseph E. Krakora, Public Defender, attorney
for appellant (William Welaj, Designated
Counsel, on the brief).

Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Mary R.
Juliano, Assistant Prosecutor, of counsel;
Anthony Valenzano, Legal Assistant, on the
brief).

PER CURIAM
 Defendant appeals from the May 31, 2016 Law Division order

denying his petition for post-conviction relief (PCR) without an

evidentiary hearing. We affirm.

A grand jury returned a one-count indictment charging

defendant with third-degree possession of cocaine, N.J.S.A. 2C:35-

10(a)(1). On November 10, 2008, defendant pled guilty to this

charge, as well as to two additional charges (third-degree

conspiracy to possess cocaine, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-

10(a)(1); and third-degree distribution of cocaine, N.J.S.A.

2C:35-5(b)(3)), which were set forth in two accusations the

prosecutor issued on that date. Although defendant was not a

United States citizen, he answered "No" to Question No. 17 on the

plea agreement form that asked, "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?"

Pursuant to the negotiated plea, the judge sentenced

defendant on December 19, 2008 to concurrent three-year terms of

probation on each charge. Defendant did not file a direct appeal

from his conviction and sentence.

On August 9 and 10, 2011, defendant pled guilty to new drug

charges1 and to violations of probation. At the plea hearing,

1
Specifically, defendant pled guilty to two counts of third-degree
distribution of cocaine, N.J.S.A. 2C:35-5(b)(3).

2 A-5357-15T1
defendant admitted he was not a citizen of the United States. He

also acknowledged that if he pled guilty to the charges, it would

likely result in his deportation. Pursuant to the negotiated

plea, the judge sentenced defendant on November 18, 2011 to an

aggregate six-year term, with a three-year period of parole

ineligibility, on the two drug charges, and a concurrent five-year

aggregate term for the violations of probation.

On September 11, 2014, more than five years after he was

sentenced on December 19, 2008 on the initial set of charges,

defendant filed his PCR petition. Defendant argued he was entitled

to have his November 10, 2008 plea vacated on ineffective

assistance of counsel grounds because his attorney did not provide

him with any advice concerning the immigration consequences of his

guilty plea. Defendant also argued that his petition should be

accepted as timely because he did not become aware that he was

subject to deportation until June 13, 2014, when an Immigration

and Customs Enforcement (ICE) detainer was lodged against him.

Following oral argument, Judge Ronald Reisner rendered a

comprehensive thirty-seven page written decision denying

defendant's petition without an evidentiary hearing. The judge

concluded that defendant's petition was barred by the five-year

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limitations period set forth in Rule 3:22-12(a)(1).2 Contrary to

defendant's assertion that he only became aware of the immigration

consequences of the November 10, 2008 plea in June 2014, the judge

found that defendant was aware he could be deported because of his

drug charges no later than the August 9, 2011 plea hearing, when

this issue was discussed in detail. This was well within the

five-year limitations period, yet defendant did not file his PCR

petition until September 11, 2014, almost nine months after this

period expired.

Judge Reisner also denied defendant's request to withdraw his

plea based upon his allegation that his plea attorney did not give

him any advice on the immigration consequences of his November 10,

2008 guilty plea. By way of background, "a defendant can show

ineffective assistance of counsel by proving that his [or her]

guilty plea resulted from 'inaccurate information from counsel

concerning the deportation consequences of his [or her] plea.'"

State v. Brewster, 429 N.J. Super. 387, 392 (App. Div. 2013)

(quoting State v. Nuñez-Valdéz, 200 N.J. 129, 143 (2009)).

2
Rule 3:22-12(a)(1) provides that a defendant's first PCR petition
must be filed within five years of the date the judgment of
conviction is entered, "unless it alleges facts showing that the
delay beyond said time was due to defendant's excusable neglect
and that there is a reasonable probability that if the defendant's
factual assertions were found to be true enforcement of the time
bar would result in a fundamental injustice[.]"

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 Counsel's duty includes an affirmative responsibility to

inform a defendant entering a guilty plea of the relevant law

pertaining to mandatory deportation. Padilla v. Kentucky, 559

U.S. 356, 368-69, 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284, 295

(2010). Our Supreme Court has made clear that counsel's "failure

to advise a noncitizen client that a guilty plea will lead to

mandatory deportation deprives the client of the effective

assistance of counsel guaranteed by the Sixth Amendment." State

v. Barros, 425 N.J. Super. 329, 331 (App. Div. 2012) (citing

Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483, 176 L. Ed.

2d at 296).

In Chaidez v. United States, 568 U.S. 342, 133 S. Ct. 1103,

185 L. Ed. 2d 149 (2013), however, the Court concluded that

Padilla, by imposing a new obligation and a new rule of law, would

be applied prospectively only. Id. at 358, 133 S. Ct. at 1113,

185 L. Ed. 2d at 162. Accordingly, "defendants whose convictions

became final prior to Padilla . . . cannot benefit from its

holding." Ibid.

Guilty pleas entered prior to Padilla are reviewed to

determine whether counsel provided affirmatively false information

regarding the plea's immigration consequences. State v. Santos,

210 N.J. 129, 143-44 (2012). "Only if defendant's attorney

affirmatively gave incorrect advice about the deportation

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consequences of his [or her] guilty plea might he [or she] be

entitled to set aside his [or her] conviction in accordance with

the holding of Nuñez-Valdéz." Brewster, supra, 429 N.J. Super.

at 394-95.

Applying these principles, Judge Reisner noted that defendant

entered his November 10, 2008 plea prior to Padilla. The judge

found "[t]here [was] no evidence presented here that . . .

defendant's plea counsel provided any false or affirmatively

misleading advice regarding . . . defendant's immigration

consequences." Thus, consistent with Nuñez-Valdéz, Judge Reisner

denied defendant's request to set aside his guilty plea.

Finally, the judge found that defendant failed to establish

a basis for plea withdrawal under State v. Slater, 198 N.J. 145,

158-59 (2009). Slater requires a court to weigh the following

factors in considering a motion to withdraw a plea: "(1) whether

the defendant has asserted a colorable claim of innocence; (2) the

nature and strength of defendant's reasons for withdrawal; (3) the

existence of a plea bargain; and (4) whether withdrawal would

result in unfair prejudice to the State or unfair advantage to the

accused." Ibid.

The judge found that defendant did not assert his innocence

of the drug charges to which he pled. As noted above, the judge

also found that defendant failed to demonstrate a strong reason

6 A-5357-15T1
for withdrawing his plea because his attorney was not ineffective

under Nuñez-Valdéz. Defendant entered his plea pursuant to a plea

bargain and he was sentenced in accordance with that agreement.

Finally, Judge Reisner found that the State would be prejudiced

due to the eight-year gap between defendant's conviction in 2008

and the filing of the PCR petition in 2016. Weighing the four

Slater factors, the judge found no basis for vacating defendant's

guilty plea. This appeal followed.

On appeal, defendant raises the following contentions:

POINT I

THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR [PCR], IN PART, UPON
THE PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-
12(a)(1).

POINT II

THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR [PCR] SINCE HIS
GUILTY PLEA WAS NOT KNOWINGLY AND VOLUNTARILY
ENTERED IN LIGHT OF THE FAILURE OF THE TRIAL
COURT, TRIAL COUNSEL OR THE STATE TO EVEN
REMOTELY INFORM THE DEFENDANT REGARDING THE
IMMIGRATION CONSEQUENCES ARISING OUT OF HIS
PLEA.

When petitioning for post-conviction relief, the defendant

must establish by a preponderance of the credible evidence that

he or she is entitled to the requested relief. State v. Nash, 212

N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992).

To establish a prima facie claim of ineffective assistance of

7 A-5357-15T1
counsel, the defendant is obliged to show not only the particular

manner in which counsel's performance was deficient, but also that

the deficiency prejudiced his right to a fair trial. Strickland

v. Washington, 466 U.S. 668, 687, l04 S. Ct. 2052, 2064, 80 L. Ed.

2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). There

is a strong presumption that counsel "rendered adequate assistance

and made all significant decisions in the exercise of reasonable

professional judgment." Strickland, supra, 466 U.S. at 690, 104

S. Ct. at 2066, 80 L. Ed. 2d at 695.

We have considered defendant's contentions in light of the

record and applicable legal principles and conclude that they are

without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons

set forth by Judge Reisner in his thoughtful and thorough written

decision.

Affirmed.

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