STATE OF NEW JERSEY v. V. SAUL TLALPAN-MENESES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5867-06T45867-06T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

V.

SAUL TLALPAN-MENESES,

Defendant-Appellant.

____________________________

 

Submitted April 10, 2008 - Decided

Before Judges S.L. Reisner and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 05 -11-0375.

Aslan T. Soobzokov, attorney for appellant.

Thomas S. Ferguson, Warren County Prosecutor, attorney for respondent; (Tara J. Kirkendall, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Saul Tlalpan-Meneses appeals from a June 29, 2007 order entered by the trial court denying his petition for post-conviction relief (PCR). We affirm.

I

Defendant was charged with third-degree aggravated assault, N.J.S.A. 2C:12-1b(1), based on an incident in which he allegedly attacked a co-worker. Facing a potential five-year prison sentence, defendant entered into a plea agreement pursuant to which he pled guilty to the aggravated assault charge and was sentenced on March 3, 2006, to two years probation conditioned on serving 180 days in the county jail.

On the plea agreement, which defendant signed on November 3, 2005, he circled "YES" in answer to the following question: "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?" At the plea hearing, also held on November 3, a Spanish-speaking interpreter was present to translate for defendant. At the beginning of the plea colloquy, Judge Pursel ascertained that defendant had signed the plea form with the assistance of an interpreter:

THE COURT: Have you signed this plea form?

THE DEFENDANT: Yes.

THE COURT: Did you do it with the assistance of your interpreter?

THE DEFENDANT: Yes.

Judge Pursel also questioned defendant as to his immigration status, and defendant advised the judge that he was not a United States citizen, but that he was a legal resident with a "green card."

At the plea hearing, defendant admitted under oath that he and the victim "got into an argument" and that defendant "got . . . really angry" when the victim threw defendant's hat. Defendant then admitted to punching and kicking the victim:

Well, I just punched him in the face and then he fell down and then I just hit him with my feet in the head. It was once in the chest and once in the head. With my hands and with my feet.

On November 14, 2006, the Federal Bureau of Immigration and Customs commenced deportation proceedings against defendant based on his conviction in this case. On April 11, 2007, defendant sought post-conviction relief by filing a motion to withdraw his guilty plea. In that proceeding, which gave rise to this appeal, defendant contended that his original trial counsel failed to fully inform him of the potential immigration consequences of his plea and failed to inform him that he could raise a claim of self-defense if he went to trial.

The sole evidentiary support for the motion was a certification from defendant in which he stated that he "must represent that I did not commit the crime for which I plead guilty." He asserted that he had "a self-defense argument that I did not know I can use," because he and the victim had "a fight and I defended myself." He also contended that he mistakenly believed that he "had no choice but to plead guilty" to the indictment, and he claimed that he pled guilty because he "felt bad" for "the victim[']s injuries." However, in the same certification he admitted that "[w]hen I was informed that if a jury found me guilty I might spend up to five years in jail, I decided to take the safe route and plead guilty."

Defendant also contended in his certification that he "did not know I would be deported if I pled guilty. . . . I was not told by my former attorney that I would be deported." Nowhere in his certification does defendant deny being told that deportation was a possible, even if not certain, consequence of his plea. Nor does his certification contain any description of the alleged "fight" or any information concerning defendant's educational background.

In a thorough written opinion, Judge Pursel concluded, based on State v. Chung, 210 N.J. Super. 427 (App. Div. 1986), that defendant could not establish ineffective assistance of counsel on the deportation issue, because there was "no allegation of an actual misrepresentation made to [defendant] by counsel regarding immigration consequences of a guilty plea." Moreover, unlike State v. Garcia, 320 N.J. Super. 332 (App. Div. 1999), where the question on the plea form concerning possible immigration consequences was inaccurately marked "N/A", here the plea form was correctly marked "yes." Judge Pursel further concluded that defendant was correctly advised that he might be deported as a result of the plea; deportation was not a certainty at the time of the plea.

Judge Pursel also rejected defendant's ineffective assistance claim based on trial counsel's alleged failure to advise him of a potential claim of self-defense. He concluded that based on the police report of the incident and defendant's admissions under oath at the plea hearing, there was no factual basis on which defendant could have asserted a claim of self-defense. Moreover, there was no indication in the record of the plea hearing "that [defendant] did not know or understand what was happening at that time, or that his plea was, for some reason, involuntarily given."

II

On this appeal, defendant raises the following contention:

POINT I: THE APPLICATION FOR POST CONVICTION RELIEF SHOULD HAVE BEEN GRANTED WHERE THE ATTORNEY WHO IS THE SUBJECT OF THE APPLICATION DID NOT OPPOSE THE ALLEGATIONS AND BASED ON THE FACTS DERIVED FROM THE PCR APPLICATION.

Defendant's claim that he should have been advised of the possibility of applying for pre-trial intervention (PTI), was not raised in the trial court and may not be asserted for the first time on appeal. Having reviewed the record, we conclude that defendant's remaining appellate contentions are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we affirm for the reasons stated in Judge Pursel's cogent opinion. We add the following comments.

Many of the facts on which defendant's brief relies are not supported by citations to evidence in the record and in fact have no support in the record. There is no evidence that defendant had only a fourth-grade education, nor is there any support for his appellate contention that he signed the plea form without assistance from an interpreter, an assertion contradicted by the record of the plea hearing. There is also no legally competent evidence to support defendant's assertion that his reaction to the victim "was based on months of ridicule and bullying by the victim." However, even if that were correct it would not establish a claim of self-defense based on the victim having moved defendant's hat. See N.J.S.A. 2C:3-4a.

Defendant failed to present a prima facie case of ineffective assistance of counsel, and we find no error in the trial court denying his application without holding an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462-63 (1992); see also Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

Affirmed.

 

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A-5867-06T5

April 16, 2008