STATE OF NEW JERSEY v. TRAVIS MENDEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3077-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TRAVIS MENDEZ,

Defendant-Appellant.

October 29, 2012

Submitted September 19, 2012 - Decided

Before Judges Harris and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-01-0041.

Joseph E. Krakora, Public Defender, attorney forappellant (IngridA. Enriquez, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for the respondent (Carol M. Henderson, Assistant Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Travis Mendez, a resident alien born in Jamaica, appeals from the August 12, 2010 Law Division order denying his petition for post-conviction relief (PCR). For the reasons that follow, we dismiss defendant's appeal as moot.

I.

On October 4, 2005, a package containing nine pounds of marijuana, with a street value of $20,000, was delivered to defendant's home in New Brunswick. Defendant was expecting the package and knew that it contained marijuana. Prior to delivery, police were alerted that a package containing controlled dangerous substances (CDS) had been shipped from California to be delivered to defendant's home. A police canine confirmed the package contained marijuana.

On January 11, 2006, a grand jury returned a three-count indictment against defendant relating to the marijuana possession. On July 21, 2006, defendant entered a plea to count two of the indictment, amended to charge him with third-degree possession of marijuana with the intent to distribute, with the State dismissing the remaining counts of the indictment.1 The sentence recommendation was a probationary term with the condition of 364 days in the county jail. On September 22, 2006, defendant was sentenced to a five-year probationary term with the condition of 364 days in the county jail suspended. Defendant did not file a direct appeal from his conviction.

In August 2009, the United States Department of Homeland Security served on defendant a notice to appear before an immigration court because he was subject to removal from the country based on his 2006 conviction for possession of marijuana with the intent to distribute.

On December 2, 2009, defendant filed a petition for PCR. In support of his petition, he filed a certification stating that his plea counsel did not discuss with him the possibility of being deported, adding, "[h]ad I known such a possibility existed, I may have made a different decision relative to plea bargaining." On August 12, 2010, the PCR court heard argument on defendant's petition. During the hearing, defendant s attorney advised the court, [m]y client s position today is he doesn t want to vacate his plea . . . . He s looking at a lot of time. [He would] rather go to Jamaica than State Prison. Defendant s attorney further indicated defendant did not want to vacate his guilty plea unless the State was willing to negotiate a plea to a lesser offense that would not expose him to deportation. The State refused. In light of defendant's position, the PCR court denied the petition based on the absence of prejudice resulting from any putative ineffective assistance of counsel as defendant no longer sought any viable PCR.

II.

Despite the avowed position of defendant that he no longer sought to vacate his guilty plea, this appeal followed, with defendant raising the following arguments:

POINT I: NO OTHER CONCLUSION CAN BE REACHED BUT THAT [THE] COURT BELOW ERRED IN CONCLUDING DEFENDANT HAD NOT BEEN DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. Trial Counsel Was Ineffective By Failing to Inform Defendant Of The Mandatory Deportation Consequences After Entering A Guilty Plea On An Aggravated Felony Charge.

B. The Appellate Court Applied The Incorrect Standard In Assessing Whether Defendant Was Properly Informed By Trial Counsel On The Effect Of A Guilty Plea On His Citizenship.

POINT II: THE COURT BELOW ERRED IN FAILING TO ORDER AN EVIDENTIARY HEARING TO ADDRESS ALL OF DEFENDANT'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS.

POINT III: NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT A REVERSAL.

To establish a prima facie case for ineffective assistance of counsel, the defendant must show: (1) counsel's performance was objectively deficient; and (2) counsel's deficient performance prejudiced the defendant to the extent that he was deprived of his right to a fair trial. State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the United State's Supreme Court's two-prong test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). Prejudice means "a reasonable probability" the deficient performance "materially contributed to defendant's conviction." Fritz, supra, 105 N.J. at 58.

Where ineffective assistance of counsel is alleged following a guilty plea, the defendant proves the second part of the Strickland test by showing "'there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).

"Moreover, to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances."

Padilla v. Kentucky, U.S. ___, ___, 130 S. Ct. 1473, 1485, 175 L. Ed. 2d 284, 297 (2010).

"It is firmly established that controversies which have become moot or academic prior to judicial resolution ordinarily will be dismissed." Cinque v. New Jersey Dept. of Corrections, 261 N.J. Super. 242, 243 (App. Div. 1993). "[F]or reasons of judicial economy and restraint, courts will not decide cases in which the issue is hypothetical, a judgment cannot grant effective relief, or the parties do not have concrete adversity of interest." Ibid. (quoting Anderson v. Sills, 143 N.J. Super. 432, 437 (Ch. Div. 1976)).

Applying these principles, we are constrained to dismiss defendant's appeal as moot as defendant's claim fails under the second prong of the Strickland test based upon his unwillingness to withdraw his guilty plea.

Defendant's PCR certification claimed that his attorney was ineffective at the time of the plea because he did not explain the mandatory deportation consequences of entry into the plea. Defendant then announced, through his attorney, that he no longer desired to withdraw his guilty plea. Defendant may not, on appeal, disavow the representations made by counsel at the PCR motion hearing.

A defendant's collateral attack of a guilty plea implicitly assumes a desire to accept the consequences of a successful application, i.e. a willingness to withdraw the previous guilty plea and proceed to trial. As Justice Stevens observed in Padilla, and as defendant realized by the time of his PCR hearing, the decision to withdrawal a guilty plea can be a weighty one:

The nature of relief secured by a successful collateral challenge to a guilty plea -- an opportunity to withdraw the plea and proceed to trial -- imposes its own significant limiting principle: Those who collaterally attack their guilty pleas lose the benefit of the bargain obtained as a result of the plea. Thus, a different calculus informs whether it is wise to challenge a guilty plea in a habeas proceeding because, ultimately, the challenge may result in a less favorable outcome for the defendant, whereas a collateral challenge to a conviction obtained after a jury trial has no similar downside potential.

Padilla, supra, U.S. at ___, 130 S. Ct. at 1486-87, 176 L. Ed. 2d at 298.

The only relief to which defendant would have been entitled had he prevailed on this appeal would be the opportunity to withdraw his guilty plea. Since defendant does not want the only relief available vacation of the plea and restoration of the charges the appeal is now moot.

Dismissed.

1 At the plea hearing, defendant signed a plea form and told the judge he had gone over the form with his attorney in detail. Defendant circled the answer "yes" to Question 17 on the form, "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?"