STATE OF NEW JERSEY v. RICARDO MONTERO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2551-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICARDO MONTERO,

Defendant-Appellant.

________________________________________________________________

January 22, 2013

Submitted November 28, 2012 - Decided

Before Judges Koblitz and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 02-06-1390 and 05-10-1105.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Vando Cardoso, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Ricardo Montero appeals from the June 25, 2010 denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant pled guilty in August 2007 to third-degree burglary of a tavern and was sentenced to three years probation, conditioned on 364 days in the county jail.1 Defendant testified under oath during the plea hearing that he was born in the United States, although he was actually born in Honduras. Defendant maintains that his counsel's failure to advise him of the immigration consequences of his guilty plea constitutes ineffective assistance of counsel. After reviewing the record in light of the contentions advanced on appeal, we affirm.

On appeal, defendant raises the following issue:

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING DEFENDANT AN EVIDENTIARY HEARING.

A deprivation of the constitutional right to effective assistance of counsel occurs when: 1) an attorney provides inadequate representation; and 2) that deficient performance causes the defendant prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).

In cases brought by a defendant who has entered a guilty plea, the first prong is met when the defendant can show that counsel's representation fell short of the guarantees established by the Sixth Amendment. State v. Parker, 212 N.J.269, 279 (2012). The second component is met when the defendant can show a reasonable probability that he would not have pled guilty, but for the counsel's errors. Id.at 279-80 (citations omitted). Defendant cannot establish the first prong.

Defendant complains that his counsel did not warn him about deportation. The United States Supreme Court recently held that attorneys are affirmatively obligated to inform their clients about the deportation risks of entering a guilty plea. Padilla v. Kentucky, 559 U.S.__, __, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284, 299 (2010). Defendant pled guilty three years before Padilla.

Our Supreme Court has held that Padillais a new rule to be applied prospectively only. State v. Gaitan, 209 N.J.339, 371 (2012). Therefore, under current State law, a pre-Padilla"guilty plea is not vulnerable because neither the court nor counsel warned the defendant about the deportation consequences of the guilty plea." Gaitan, supra, 209 N.J.at 361 (citation omitted).

Even prior to Padilla, a defendant was entitled to relief when the facts showed that the plea attorney materially misled the defendant. SeeState v. Nu ez-Vald z, 200 N.J.129, 140 (2009) (where the defendant's attorney told him that there would be no immigration consequences of entering a guilty plea, yet the crime to which defendant pled guilty mandated deportation). Defendant's complaint, however, is not that his plea attorney gave him wrong advice, but that his lawyer did not warn him at all. He argues that his attorney should have noted that the presentence report indicated that both defendant's jail and criminal history records indicated he was born in Honduras, although he maintained he was born in Jersey City. Thus, the report indicated that "[i]t is unclear where Mr. Montero was born." The argument that an attorney should disbelieve his client's sworn testimony and conduct further investigation based on a report prepared prior to sentencing is unconvincing. Defendant has not cited any authority to establish that his counsel's performance was so unreasonable under the prevailing professional standards that it constituted a deficiency of constitutional proportions. Strickland, supra, 466 U.S.at 690, 104 S. Ct.at 2066, 80 L. Ed. 2d at 695 ("[A] court . . . must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.").

Defendant also argues that the court erred in denying him an evidentiary hearing. However, such hearings will not be granted unless a defendant can first establish a prima facie case of ineffective assistance. State v. Preciose, 129 N.J.451, 462 (1992). Defendant failed to make such a showing.

A

1 He subsequently pled guilty to a violation of probation and received a sentence of three years in prison.