STATE OF NEW JERSEY v. ROBERT MEDRANO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5188-07T45188-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT MEDRANO,

Defendant-Appellant.

_____________________________________________________

 

Submitted November 5, 2009 - Decided

Before Judges Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-03-0314.

Yvonne Smith Segars, Public Defender, attor-ney for appellant (Michael Confusione, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecu-tor, attorney for respondent (Marc A. Festa, Special Deputy Attorney General, Acting Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In this appeal, defendant contends the trial judge erred in denying his petition for post-conviction relief, which claimed a denial of the effective assistance of counsel when defendant pled guilty to the offense for which he is now serving a ten-year prison term. We find no merit in defendant's arguments and affirm.

In 2002, defendant and Carlos Solano were indicted. Both were charged with having committed first-degree robbery, N.J.S.A. 2C:15-1; Solano was also charged with other offenses. On the scheduled trial date, Solano and the State reached a plea agreement. Counsel discussed with defendant the impact of Solano's decision to plead guilty, after which defendant also reached an agreement with the State to plead guilty. However, prior to sentencing, defendant moved to withdraw his plea, arguing that his trial attorney "forced" him to plead guilty. The matter was adjourned so that new defense counsel could be assigned.

On April 23, 2004, the judge considered defendant's motion to withdraw his guilty plea. After hearing the testimony of defendant and his former attorney, the judge rendered a thorough oral decision denying the motion. The judge then sentenced defendant to a ten-year prison term subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant's appeal was placed on an excessive sentencing oral argument calendar and heard on June 27, 2006. Defendant's appellate counsel asserted that the trial judge erred in denying the motion to withdraw the guilty plea because defendant was not advised of the deportation consequences of his plea. After holding that "the issues on appeal relate solely to the sentence imposed," and without mention of counsel's argument regarding the deportation consequences of the plea, we affirmed the judgment of conviction. State v. Medrano, No. A-5981-03T4 (App. Div. June 27, 2006). Defendant's petition for certification was denied by the Supreme Court on October 3, 2006. 188 N.J. 490 (2006).

Defendant filed his PCR petition in or about January 2007. He asserted at that time, without specificity, only that his trial attorney "false[ly] induce[d]" him into entering a guilty plea. In or about August 2007, defendant filed a certification in further support of his PCR petition, in which he alleged:

a. My co-defendant had said he was going to plea[d] guilty and provide a statement that he had been at fault and clear[] me of the offenses. My attorney refused to investigate this, and told me that it would not matter as the judge wanted to see the both of us in jail.

b. While my attorney did provide a copy of the discovery to me, he did not review or discuss the discovery with me. I had no[] idea of the strengths or weaknesses of the case against me.

c. My attorney did not go over the plea form with me and I did not get to read it. He just told me to "sign here." He told me that if I did not sign and take the plea offer, that I would be convicted and be sentenced to 20 years or more in state prison. My attorney scared me into taking the plea offer when what I really wanted to do was go to trial as I knew the State would not be able to prove their case against me.

d. My attorney did not speak Spanish, and I do not speak English. However when he was speaking with me regarding my case, he did not use an interpreter. Because of this I was not able to follow everything that he said, and he was able to coerce me to take the plea.

In denying relief, the judge relied upon the fact that he had presided over all aspects of this matter from its inception. He presided over the plea hearing, heard and ruled upon the motion to withdraw the guilty plea, and imposed sentence on defendant. Both defendant and his trial attorney testified on the return date of the motion to vacate the guilty plea, and the judge made findings at that time regarding defendant's assertion that he had been coerced into pleading guilty. The judge found only defendant's trial attorney to be credible and further found that: defendant had a better understanding of English than he baldly asserted in his PCR petition; an interpreter was utilized at all critical stages; and defendant never expressed any concern about the deportation consequences of his guilty plea. The judge concluded that defendant was not coerced and that he had pled guilty freely and voluntarily and with a full understanding of the consequences.

Defendant appealed the denial of his PCR petition, arguing:

THE COURT SHOULD REVERSE THE DENIAL OF DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.

1. Defendant's Petition is Not Barred.

2. Defendant Established At Least A Prima Facie Case of Ineffective Assis-tance Of Counsel.

3. Defendant's Plea Was Invalid Be-cause He Was Not Advised Of Immigra-tion Consequences.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.

We reject the contention that the judge should have conducted an evidentiary hearing before ruling on the PCR petition. The judge presided over all other events in this case. He heard defendant's testimony as well as the testimony of defendant's trial attorney when ruling on the motion to vacate the guilty plea. It was quite appropriate for the judge to rely upon his earlier findings in ruling on the PCR petition.

Defendant also argues in this appeal that he was denied the effective assistance of counsel because he was not advised of the deportation consequences of his guilty plea. We first observe that this argument was not raised in the initial PCR petition or defendant's subsequent supporting certification. We assume, however, that defendant's PCR counsel argued the point in a trial court brief. In denying relief, the judge relied upon the findings he made when ruling on the motion to withdraw the guilty plea; in light of those findings, the judge recognized that on that earlier occasion defendant

didn't indicate any problem with deportation to [his trial attorney] or that would have been noted on the plea form and it would have been a very simple matter to do that. The reason why N/A [not applicable] was circled [in responding to Question #17 on the plea form] is obviously because it was not a factor, and the only reason [defendant's trial attorney] knew that is because that's what the defendant told him.

We are mindful that the Court recently adopted a new standard for the consideration of ineffective-assistance-of-counsel claims when deportation is a consequence of a guilty plea. See State v. Nu ez-Valdez, 200 N.J. 129 (2009). Although the Court rejected the existing approach, which viewed deportation as a collateral consequence of a guilty plea, the rule adopted still requires that a defendant show he would not have pled guilty out of a concern that deportation would follow. Id. at 142-43. Despite having many opportunities, defendant never provided a sworn statement at any time in these proceedings that he would not have pled guilty because of the potential or likelihood of deportation. We, thus, find no substance in defendant's factually unsupported argument to the contrary.

 
Affirmed.

Contrary to our rule requirements, the copy of the PCR petition in defendant's appendix does not reflect the filing date, R. 2:6-1(b), and the filing date went unmentioned in defendant's procedural history, R. 2:6-2(a)(3), or elsewhere in his brief.

As we have observed, neither the PCR petition nor the later-filed certification asserted the deportation consequences of the plea. And defendant's PCR counsel did not present oral argument at the PCR hearing. Accordingly, because the judge mentioned in his decision that defense counsel had argued that he should conduct a hearing into defendant's understanding about deportation, we assume the judge was referring to a brief defendant filed in the trial court, which was not included in the appendix.

Although not necessary to the trial judge's decision on the PCR petition or our decision at this time, the trial judge alternatively held that the PCR argument regarding the deportation consequences of the guilty plea was procedurally barred because it was raised and adjudicated in defendant's direct appeal. As we have observed, defendant's appellate counsel raised it during oral argument on the direct appeal, but we never ruled on that point. As a result, defendant was free to raise the matter again in seeking PCR.

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A-5188-07T4

November 17, 2009