STATE OF NEW JERSEY v. WILLIAM VASQUEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3649-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM VASQUEZ,

Defendant-Appellant.

-

November 19, 2012

Argued September 25, 2012 - Decided

Before Judges Yannotti and Hoffman.

On appeal from the Superior Court of New Jersey; Law Division, Union County, Indictment No. 06-12-1800.

Melinda M. Basaran argued the cause for appellant (Basaran Law Office, attorneys; Ms. Basaran, on the brief).

Emily R. Anderson, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Anderson, of counsel and on the brief).

PER CURIAM

Defendant William Vasquez appeals from a February 28, 2011 order denying his petition for post-conviction relief (PCR). We affirm.

Defendant, a native and citizen of El Salvador, came to the United States in 1988 at the age of eight. On October 30, 2006, defendant was arrested in Union, New Jersey for stealing several paintball guns from a department store.

On December 21, 2006, defendant pled guilty to third-degree shoplifting, contrary to N.J.S.A. 2C:20-11. At the plea hearing, the following exchange between defendant and the trial judge took place:

THE COURT: Are you a U.S. citizen?

DEFENDANT: No, I'm a resident.

THE COURT: Okay, do you understand there's a chance you may be deported if you plead guilty?

DEFENDANT: No.

THE COURT: Well, there is. Do you want to plead guilty knowing that?

DEFENDANT: What?

THE COURT: Do you want to plead guilty knowing that you could be deported?

DEFENDANT: So even if I'm a resident, I can get deported for this?

THE COURT: I'm not the . . . Homeland Security people, but yeah, there is a possibility.

DEFENDANT: All right, yeah.

The assistant prosecutor asked that the plea form be amended to reflect defendant's acknowledgement of the potential immigration consequences of his plea.

On March 9, 2007, as a result of his shoplifting plea, defendant was sentenced to two years probation, and ordered to pay a fine of $350 plus mandatory assessments. When defendant failed to report to his probation officer, or make any required payments, he was charged with violation of probation.

On May 9, 2008, defendant, who was represented by new counsel, pled guilty to violating his probation. Subsequently, defendant was sentenced to three years imprisonment.

On December 16, 2009, the United States Department of Homeland Security initiated removal proceedings against defendant due to his shoplifting conviction and subsequent imprisonment for violating his probation.

Defendant then filed a petition for PCR. On November 18, 2010, oral argument was held before the PCR judge, who granted an evidentiary hearing. On February 18, 2011 and February 25, 2011, the PCR judge received the testimony of defendant and defense counsel who represented him at his December 21, 2006 plea hearing. Following the hearing, the judge denied defendant's petition. While finding defense counsel had failed to advise defendant of the deportation consequences of his plea, the judge determined that this deficiency was cured by the fact that the trial judge had advised defendant of these consequences.

On appeal defendant argues:

POINT I: THE LOWER COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, SINCE DEFENDANT WAS PREJUDICED BY THE FAILURE OF PRIOR COUNSEL TO ADVISE HIM OF THE IMMIGRATION CONSEQUENCES OF HIS ENTRY OF A PLEA OF GUILTY TO [N.J.S.A.] 2C:20-11.

POINT II: DEFENDANT'S PRIOR COUNSEL WAS INEFFECTIVE IN FAILING TO ADVISE DEFENDANT OF THE IMMIGRATION CONSEQUENCES OF A PLEA TO A VIOLATION OF PROBATION.

POINT III: THE LOWER COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, SINCE PRIOR COUNSEL AND THE COURT FAILED TO PROPERLY ADVISE DEFENDANT OF THE POTENTIAL IMMIGRATION CONSEQUENCES OF A VIOLATION OF PROBATION.

Based on our review of the record and the applicable law, we conclude that these arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We add the following comments.

Defendant's argument rests primarily on the United States Supreme Court's decision in Padilla v. Kentucky, U.S. , 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), which held that an attorney's failure to inform a client about the deportation risks of pleading guilty to a criminal charge runs afoul of the Sixth Amendment right to counsel. However, our Supreme Court recently held that this rule is not entitled to retroactive application. State v. Gaitan, 209 N.J. 339, 371-72 (2012). Defendant entered his guilty plea and was sentenced prior to Padilla. Thus, he cannot rely on Padilla to support his petition for PCR.

Defendant also cites State v. Nunez-Valdez, 200 N.J. 129 (2009) to support his argument. Because defendant has not claimed that either of his plea attorneys provided him affirmative misinformation regarding the potential immigration consequences of pleading guilty, Nunez-Valdez is inapplicable as well. Gaitan, supra, 209 N.J. at 374.

Additionally, defendant's PCR claim relating to his plea to violating his probation fails as to the second prong of Strickland v. Washington, 466 U.S. 688, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). 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 States Supreme Court's two prong test from Strickland).

At the PCR hearing, defendant failed to offer any testimony that he had, in fact, complied with the terms of his probation. Thus, defendant cannot meet the second prong of Strickland because he cannot show that he was prejudiced by any alleged ineffective assistance of counsel.1

Affirm.

1 We note that defendant has never asserted that he has a colorable claim of innocence pursuant to State v. Slater, 198 N.J. 145, 157-58 (2009), and its progeny.