STATE OF NEW JERSEY v. MARIBEL AGUILAR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0073-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARIBEL AGUILAR,

Defendant-Appellant.

________________________________________________________________

October 19, 2010

Submitted October 5, 2010 - Decided

Before Judges Skillman and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-03-00468.

Sanchez & Associates, attorneys for appellant (Rodrigo H. Sanchez, Jr., on the brief).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the denial of her motion to withdraw her guilty plea. We affirm.

Defendant pled guilty pursuant to a negotiated plea agreement to third-degree theft from a person, N.J.S.A. 2C:20-3.

At the time that she entered her guilty plea, the court asked defendant directly, "You understand you may be deported by virtue of your guilty plea?" She responded, "Yes." She provided a factual basis for the guilty plea, acknowledging that she had devised a plan with her co-defendants to deceive the victim for the purpose of obtaining money from him and that she did in fact get money from him. Defendant was sentenced on August 8, 2005, to three years probation, time served (four days), and restitution. She did not file a motion to withdraw her guilty plea until February 2009, after she had completed her probationary term.

Following the denial of her motion, defendant filed this appeal, in which she raises the following issues:

POINT I

THE TRIAL COURT'S DECISION SHOULD BE OVERTURNED BECAUSE THE TRIAL COURT ERRED IN ITS EVALUATION OF APPELLANT'S COLORABLE CLAIM OF INNOCENCE.

POINT II

THE TRIAL COURT'S DECISION SHOULD BE OVERTURNED BECAUSE THE TRIAL COURT ERRED IN ITS EVALUATION OF APPELLANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT III

THE TRIAL COURT'S DECISION SHOULD BE OVERTURNED BECAUSE THE TRIAL COURT ERRED IN THE AMOUNT OF WEIGHT IT AFFORDED TO THE EXISTENCE OF A PLEA BARGAIN.

POINT IV

THE TRIAL COURT'S DECISION SHOULD BE OVERTURNED BECAUSE THE TRIAL COURT ERRED IN ITS EVALUATION THAT THE STATE WOULD BE UNFAIRLY PREJUDICED IF APPELLANT'S WITHDRAWAL WAS GRANTED.

After carefully considering the record and briefs, we are satisfied that all of defendant's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following brief comments.

In denying the motion, the court reviewed the factors set forth in State v. Slater, 198 N.J. 145, 157-158 (2009): (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. The court stated that there was no colorable claim of innocence; that the reason for seeking withdrawal was related to potential deportation proceedings; that defendant received a favorable plea bargain; and that it was likely that the State would be prejudiced by the substantial delay in defendant's motion.

To support her claim of colorable innocence, defendant submitted a certification from her co-defendant, Anibal Garcia. Describing defendant as his girlfriend, Garcia stated he and his codefendant conspired to use her without her knowledge in a "scam." He stated that he asked her to "help me play a trick" on the victim; that she "was under the impression that it was a joke," and did not know that the "scam involved stealing money." These statements are directly contradicted by the testimony defendant gave in providing the factual basis for her guilty plea. She has not submitted any certification in which she represents that her testimony was inaccurate. We are, therefore, satisfied that the motion judge's conclusion that defendant failed to present a colorable claim of innocence is adequately supported by the record.

Defendant also argues that the alleged ineffective assistance of her counsel should have been weighed more heavily in evaluating the nature and strength of her reason for seeking to withdraw her guilty plea. She contends that her counsel's performance was deficient because he failed to adequately discuss the case with her, investigate possible defenses or to adequately advise her regarding the plea bargain, including the consequences of her guilty plea.

In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, l 04 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); State v. Fritz, l 05 N.J. 42, 52 (l987). As previously noted, prior to entering her plea; defendant acknowledged to the court that she understood she could be deported as a result of the guilty plea. She has presented no evidence that her trial counsel could have obtained evidence at the time of her plea that would have made a difference in the outcome. Even if her codefendant had been willing to testify at that time that she did not know they were engaged in criminal conduct, she has still failed to provide any evidence that her own statements admitting such knowledge at the time of plea were untrue. Defendant is, therefore, unable to satisfy the second prong of the Strickland/Fritz test.

Accordingly, we are satisfied that the motion judge did not err in his consideration of these and the remaining factors relevant to his determination pursuant to Slater.

A