STATE OF NEW JERSEY v. JAIME AGUIRRE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-08220-12T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAIME AGUIRRE,

Defendant-Appellant.

____________________________________

December 23, 2013

Submitted November 6, 2013 Decided

Before Judges Alvarez, Ostrer and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 90-04-1343.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor,attorney forrespondent (Michelle E. Ditzhazy, Special Deputy AttorneyGeneral/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Jaime Aguirre appeals from a July 2, 2012 Law Division order denying his petition for post-conviction relief (PCR). We affirm.

On June 20, 1990, defendant entered a guilty plea to robbery, N.J.S.A. 2C:15-1. On September 27, 1990, the trial court sentenced him to a five-year term of imprisonment. Defendant did not file a direct appeal.

On May 5, 2011, nearly twenty-one years after the imposition of sentence, defendant filed a pro se petition for PCR. Counsel thereafter filed a brief in support of the petition.

Defendant's conviction arose from his theft of a purse from a sixty-three-year-old woman. As he grabbed it, the victim was dragged to the ground. An eyewitness called police and chased defendant into a neighbor's yard. When police arrived, they located defendant with the handbag still in his possession. The victim identified the defendant as the assailant, and the pocketbook as her own. Defendant gave a sworn statement confessing to the robbery.

These details, relied upon by the judge and constituting the record on appeal, were extracted from police reports, statements of the victim, and statements of defendant provided in discovery during the course of the PCR proceedings. This was necessary because the transcripts of the plea and sentence hearing are unavailable and may no longer exist. Trial counsel is deceased.

As set forth in defendant's affidavit, filed in support of his PCR application, he is an Ecuadorian citizen classified as a legal permanent resident. Sometime immediately prior to the filing of his petition, however, he was detained for deportation by the immigration authorities because of the robbery conviction. He was thereafter released, although he did not attend the second day of oral argument on his PCR.

The PCR judge denied relief, not on the basis of the time bar. On that issue he stated that "[defendant's] attention would not have been drawn to this until recently when the Federal Immigration authorities came after him because of this conviction." The judge then addressed the issue defendant initially raised, that at the time of his sentencing his attorney had the option of requesting a judicial recommendation against deportation (JRAD) but failed to do so. The PCR judge ultimately found, however, that defendant was statutorily ineligible for a JRAD. See 8 U.S.C. 1251(b). In 1990, defendant's crime did not fall within any of the relevant categories. See 8 U.S.C. 1101(a)(43). Furthermore, he concluded that given the strength of the State's case, defendant, regardless of his counsel's alleged ineffectiveness, would not have elected to go to trial. Hence he dismissed the petition for post-conviction relief.

On appeal defendant raises the following points:

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE, IN THE ABSENCE OF THE PLEA AND SENTENCING TRANSCRIPTS, AND WITH TRIAL COUNSEL NOT BEING AVAILABLE, DEFENDANT WAS NOT PROVIDED THE OPPORTUNITY TO PRESENT A COMPLETE FACTUAL RECORD OF HIS PCR CONTENTIONS.

POINT II

THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

We find defendant's arguments to be lacking in merit. They do not warrant discussion in a written opinion. R. 2:11-3(e)(2).

Furthermore, Rule 3:22-12 clearly states that a PCR petition shall be filed no more than five years after the entry of a judgment of conviction unless the delay was "due to defendant's excusable neglect and [] there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice." Defendant does not in any manner explain his failure to file earlier or explain the reason the delay was caused by excusable neglect. That defendant has many years after the plea encountered a significant consequence resulting from entry of the plea does not fit within the rule's definition of excusable neglect.

Moreover, defendant acknowledges that the plea form he signed clearly informed him that deportation was a possible consequence of conviction. And at the time, in order to have been ineffective, his attorney would have had to have given him erroneous information regarding the impact of the plea on his status. State v. Chung, 210 N.J. Super. 427, 435 (App. Div. 1986). Defendant did not make that showing here.

Finally, in a case where the perpetrator is apprehended moments after a mugging, is promptly identified by the victim, found in possession of the stolen item, and confesses, a plea rather than trial is a likely outcome. We therefore concur with the PCR judge that no prima facie case of ineffective assistance has been established. Defendant was advised, before entering his plea, that deportation was a possible consequence of his conviction. The State's proofs were overwhelming. No error was committed by the court in denying defendant PCR relief.