STATE OF NEW JERSEY v. VICTOR LOPEZ-RODRIGUEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VICTOR LOPEZ-RODRIGUEZ,

Defendant-Appellant.

____________________________________________________

Submitted June 4, 2013 Decided

Before Judges Fisher and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 99-10-0980.

Saluti Law Group, attorneys for appellant (Gerald M. Saluti, of counsel; Camille Claudio, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Shieh, Chief Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant was born in the Dominican Republic and relocated to the United States when he was fifteen years old. Eight years later, defendant was charged with the murder of Angel Nova in

Paterson on March 7, 1999. Within hours of the shooting, he fled to the Dominican Republic, but was extradited to the United States a year later. In 2001, by agreement, defendant pleaded guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(c), and was sentenced to a twenty-year prison term subject to a seventeen-year period of parole ineligibility. His appeal was placed on an excessive sentencing oral argument calendar. We affirmed on June 28, 2005.

Defendant filed a post-conviction relief (PCR) petition on September 16, 2005, claiming he was not informed either about the five-year parole supervision period imposed or that he would be sentenced to a twenty-year prison term. Defendant also argued he was denied the effective assistance of counsel. And he claimed a denial of due process because an interpreter was not present at the plea and sentencing hearings. The PCR judge conducted an evidentiary hearing at which both defendant and his trial attorney testified. The PCR judge denied relief for reasons set forth in a written opinion. We affirmed. State v. Lopez-Rodriguez, No. A-2476-06 (App. Div. Dec. 16, 2008), certif. denied, 202 N.J. 346 (2010).

Defendant filed a second PCR petition. Although the PCR petition is not included in the record on appeal, the parties agree that defendant argued in the PCR court that he was denied

the effective assistance of counsel based on the allegation that his attorney did not inform him of the deportation consequences of his guilty plea and that he was unlawfully extradited from the Dominican Republic. The PCR petition was denied for reasons set forth in a written opinion filed on April 15, 2011.

Defendant appeals. Through his attorney, defendant argues:

I. DEFENDANT'S PLEA BARGAIN SHOULD BE VACATED DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL, BECAUSE DEFENSE ATTORNEY FAILED TO ADVISE CLIENT HE WOULD BE DEPORTED AFTER COMPLETI[NG] HIS SENTENCE.

II. DEFENDANT WAS EXTRADITED WITHOUT A HEARING IN VIOLATION OF A TREATY BETWEEN THE DOMINICAN REPUBLIC AND UNITED STATES.

Defendant also filed a pro se supplemental brief, arguing:

I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT-APPELLANT'S PETITION FOR POST CONVICTION WITHOUT AFFORDING AN EVIDENTIARY HEARING TO DETERMINED THE MERITS OF CONTENTION THAT DEFENDANT-APPELLANT WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTAN[C]E OF COUNSEL.

A. The Prevailing Legal Principles Regarding Claims Of Ineffective Assistance Of Counsel, Evidentiary Hearings And Petition For Post Conviction Reli[e]f.

B. The Time Bar Of R. 3:22-4 Concerning The Opportunity To Raise Certain Issues Previously Does Not Apply To Appellant's Case.

C. Defendant-Appellant's Convic-tion Must Be Vacated Since Defense

Counsel Failed To Explain All Of The Consequences Of Defen[d]ant-Appellant's Guilty Plea.

D. Defendant-Appellant Was Ren-dered Ineffective Assistance Of Counsel When Failing To Explain The Consequences A Plea Would Have On Defendant-Appellant Immigration Status.

II. TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT AN EXTRADITION HEARING TO SHOW PROOF OF ILLEGAL EXTRADITION FROM DOMINICAN REPUBLIC TO THE UNITED STATES AS REQUIRED BY THE EXTRADITION TREATY BETWEEN THE UNITED STATES AND THE DOMINICAN REPUBLIC . . . .

III. DEFENDANT-APPELLANT IS ENTITLED TO RECEIVE ADDITIONAL JAIL CREDIT FOR TIME SPENT IN CUSTODY IN THE DOMINICAN REPUBLIC PENDING EXTRADITION TO UNITED STATES (NEW JERSEY).

IV. TRIAL COURT ERRED IN NOT GRANTING A NEW SENTENCING HEARING AND FAILED TO ACKNOWLEDGE[] AND CONSIDERE[] THE APPLICABLE MITIGATING FACTORS ON DEFENDANT-APPELLANT'S BEHALF.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We add only, with regard to defendant's ineffective assistance argument regarding the deportation consequences of his guilty plea, that defendant has not argued his attorney misinformed him only that he failed to inform him about the deportation consequences of his guilty plea. The obligation of criminal counsel to affirmatively advise a client of the

deportation consequences of a guilty plea was recognized by the Supreme Court in Padilla v. Kentucky, 559 U.S. 356, __, 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284, 296 (2010). That Court later recognized, as had our Supreme Court, that the obligation of counsel to affirmatively inform a client of the deportation consequences of a guilty plea was not applicable to pleas entered prior to the date Padilla was decided, as here. See Chaidez v. United States, 568 U.S. __, __, 133 S. Ct. 1103, 1113, 185 L. Ed. 2d 149, 162 (2013); State v. Gaitan, 209 N.J. 339, 372 (2012). Accordingly, defendant's trial attorney was not required to render the advice now required by Padilla, and defendant is unable to satisfy the first prong of the Strickland/Fritz test1 for determining whether a criminal defendant has been deprived of the effective assistance of counsel.2

Affirmed.

1Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987).

2We note, also, with regard to the second prong of the Strickland/Fritz test, that the plea agreement executed by defendant in 2001 contains his acknowledgement that he was aware that his guilty plea might lead to deportation.

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