STATE OF NEW JERSEY v. JORGE MEZA

NOT FOR PUBLICATION WITHOUT THE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.

JORGE MEZA,

Defendant-Appellant.

January 6, 2015

Submitted December 17, 2014 Decided

Before Judges Waugh and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-01-00003.

Joseph E. Krakora, Public Defender, attorney for appellant (David A. Snyder, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Jorge Meza appeals from a May 16, 2013 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.

On July 16, 2010, pursuant to a plea agreement, defendant pled guilty to second-degree conspiracy to commit money laundering, N.J.S.A. 2C:21-25(a), (c), N.J.S.A. 2C:5-2 (count one); and second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), N.J.S.A. 2C:2-6 (count three). In return, the State agreed to recommend an aggregate five-year prison sentence, subject to a three-year parole ineligibility period. The State also agreed to dismiss the remaining counts of the State Grand Jury Indictment charging second-degree money laundering, N.J.S.A. 2C:21-25(a), N.J.S.A. 2C:2-6 (count two); and second-degree unlawful possession of another weapon, N.J.S.A. 2C:39-5b, N.J.S.A. 2C:2-6 (count four). Further, the State agreed not to prosecute defendant for any crimes that were the subject of a wiretap as part of a separate investigation.

Defendant, represented by new counsel, appeared for sentencing on September 27, 2010. Defendant verbally moved to withdraw his guilty plea, claiming that when he entered the plea he misunderstood his citizenship status. The judge noted that defendant asserted no claim of innocence. The judge further recognized that at the time of the plea he had specifically questioned defendant about his citizenship status, "and warned him of the immigration consequences of his plea and [defendant], nevertheless, intended to plead guilty." The judge denied the verbal application to withdraw the guilty plea, but granted defendant the "right to seek a reconsideration of my decision[,] within the appropriate time frames." The court then sentenced defendant in accordance with the plea agreement. Defendant did not move for reconsideration, nor did he file a direct appeal from his conviction or sentence.

Defendant filed for PCR in October 2012, claiming that trial counsel provided ineffective assistance. Specifically, defendant alleged that trial counsel told him he would be pleading guilty to a third-degree possession of a firearm offense, which was not an aggravated felony that would result in mandatory deportation.1

Following oral argument, the PCR judge, who was not the trial judge, denied defendant's petition by order dated May 16, 2013. In this appeal, defendant argues that the trial court erred in failing to hold an evidentiary hearing. Specifically, he contends

POINT ONE

THE DEFENDANT MET HIS BURDEN BY A PREPONDERANCE OF THE EVIDENCE AND ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ STANDARD. THE PCR COURT COMMITTED ERROR BY DENYING THE PCR PETITION WITHOUT GRANTING AN EVIDENTIARY HEARING

The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l05 N.J.42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, l04 S. Ct. at 2068, 80 L. Ed. 2d at 698.

The prejudice claimed by defendant is that he entered a guilty plea without knowing he would be deported as a result. To show prejudice after having entered a guilty plea, a defendant must prove "there is a reasonable probability that, but for counsel's errors, [he or she] would not have pled guilty and would have insisted on going to trial." State v. Nu ez-Vald z, 200 N.J. 129, 139 (2009) (internal quotation marks and citation omitted). A defendant presents a prima facie case of ineffective assistance when "counsel provides false or affirmatively misleading advice about the deportation consequences of a guilty plea, and the defendant demonstrates that he would not have pled guilty if he had been provided with accurate information." State v. Gaitan, 209 N.J. 339, 351 (2012) (citing Nu ez-Vald z, supra, 200 N.J. at 131), cert. denied, ____ U.S. ____, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).

Thus, in evaluating defendant's claim, we apply the standards set forth above. When he pled guilty, defendant acknowledged under oath that he was pleading guilty to two second-degree crimes, for which he would be sentenced to a five-year prison term with three years of parole ineligibility. He admitted entering his guilty plea knowingly and voluntarily. He stated that he was pleading guilty because he was in fact guilty, and admitted his involvement in transporting approximately $227,000 which he knew was derived from unlawful activity, which sum he further agreed to forfeit as part of the plea agreement. Defendant acknowledged satisfaction with the services provided by trial counsel and indicated he had no further questions of the court.

Defendant failed to answer question #17a on the plea form, which asked: "Are you a citizen of the United States?" However defendant answered "yes" to question #17b, which specifically asked: "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?" The trial judge then directly probed defendant's understanding of the deportation consequences of his plea during the plea colloquy

THE COURT: Now, are you a citizen of the United States?

MR. MEZA: That's what we're trying to find out right now because my grandpa was born in California, so that makes my mom a citizen, so we don't know if that makes me a citizen or not, that's what we're trying to fight right now.

THE COURT: All right. Well, at this point, the only thing I need to make clear to you is that if you are not a citizen of the United States, as a result of these convictions you may very likely be deported, do you understand that?

MR. MEZA: Yes, I do.

THE COURT: And has - - has your lawyer or anyone else told you not to worry about that or told you that you weren't going to get deported?

MR. MEZA: No, Your Honor.

THE COURT: Okay, and knowing that you may likely get deported, you are taking advantage of this plea agreement so that you can receive the lesser sentence that you're bargaining for?

MR. MEZA: Yes, Your Honor.

THE COURT: All right. Is anyone making any other promises to you that we haven't discussed to cause you to plead guilty today?

MR. MEZA: No, Your Honor.

Directly contrary to his sworn testimony at the plea hearing, defendant in his certification in support of PCR claims that trial counsel told him he was pleading guilty to a third-degree crime, that was not an aggravated felony. He avers that "[c]ounsel's advice in this matter led me to believe that pleading guilty would not lead to the mandatory detention and deportation consequences I currently face."

Even if we were to now accept defendant's contradictory contention that his trial counsel gave him misleading advice about being deported, that claimed error does not automatically entitle him to PCR relief. Rather, as noted, defendant must separately prove that "there is a reasonable probability that, but for counsel's errors, the defendant would . . . have decided to forego the plea agreement and would have gone to trial." State v. McDonald, 211 N.J. 4, 30 (2012). Accord Nu ez-Vald z, supra, 200 N.J. at 139; State v. Maldon, 422 N.J. Super. 475, 482 (App. Div. 2011). A "reasonable probability" must be "sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Here, as the PCR judge properly concluded, defendant has failed to demonstrate a reasonable probability that if he had received different advice about his deportation consequences, he would have rejected the State's plea offer and gone to trial on the pending indictment, and also risked trial on a separate investigation where he was named in a wiretap inventory. We find that defendant has failed to establish prejudice, since the record reflects that, even when advised by the court that deportation was likely, his attention was focused on taking advantage of the lesser prison sentence that he had bargained for, and not on the immigration consequences. See Gaitan, supra, 209 N.J. at 378-79.

On appeal, defendant does not suggest that he had any defense to the charges, or any rational prospect of avoiding conviction. Defendant's bald assertion that he would have rejected the plea offer and stood trial lacks any credible factual support in the record. The PCR court correctly concluded that an evidentiary hearing was not warranted as defendant failed to satisfy the second prong of the Strickland/Fritz test. See State v. Preciose, 129 N.J. 451, 462-63 (1992).

Affirmed.

1 See 8 U.S.C.A. 1227a(2)(A)(iii) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable.")