STATE OF NEW JERSEY v. MARCOS BARRIOS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2686-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARCOS BARRIOS,

Defendant-Appellant.

December 14, 2010

Submitted November 17, 2010 - Decided

Before Judges Axelrad and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Accusation No. A-360-02.

Kaufman, Bern, Deutsch & Leibman, L.L.P, attorneys for appellant (Marc E. Leibman, of counsel and on the brief; Allyson M. Kasetta, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This is an appeal from the denial of defendant Marcos Barrios's motion to vacate a guilty plea entered more than eight years ago. We affirm.

In October 2009, defendant filed a motion to vacate a February 14, 2002, guilty plea on grounds that he was not informed of the deportation consequences of his plea.1 Defendant's plea was for committing the crime of third-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3).

Judge Bruce A. Gaeta conducted the plea allocution hearing and accepted the plea. At that proceeding defendant was represented by an attorney. Defendant completed the requisite plea form and affirmatively stated that he "read it and went over it with [his] attorney before [he] signed it." His attorney neither questioned defendant as to his citizenship and residency status in the United States, nor did defendant ask about the consequences of his plea on his residency status. During the plea allocution hearing, the issue of defendant's citizenship was never raised.

On December 17, 2002, defendant was sentenced by Judge Patrick J. Roma in accordance with the plea arrangement to two years probation. Defendant did not pursue a direct appeal, and as far as the record discloses, defendant served his sentence uneventfully.

According to defendant, seven years later, in May 2009, he appeared in a municipal court to pay a fine on a suspended license charge. There, he was informed that he would be subject to deportation as a result of the conviction entered in 2002. See 8 U.S.C.A. 1227(a)(2)(A)(iii). He further asserts that "[s]ince May 18, 2008, [he has] been incarcerated, awaiting an immigration hearing on the deportation issue."

In October 2009, defendant filed the instant motion, which was heard by the sentencing judge. In a written opinion dated January 19, 2010, Judge Roma denied the motion, finding:

[F]undamental fairness does not mandate withdrawal of defendant's guilty plea. Defendant committed a crime and voluntarily pled guilty to that crime. He indicated that he understood he could be deported as a result of his guilty plea, but he pled to the crime anyway.

. . . .

The [c]ourt declines to find any reason to afford defendant withdrawal of guilty plea. Defendant fails to meet either of the

Strickland[2] requirements, and there exists no fundamental fairness exception. Counsel did not offer the defendant ineffective assistance of counsel, and despite defendant's contrary claim, there is no reason to believe that, but for counsel's advice, defendant would not have pled guilty to his offense.

This appeal followed.

On appeal, defendant raises the following points:

PART ONE: THE DEFENDANT SHOULD HAVE BEEN ENTITLED TO WITHDRAW HIS GUILTY PLEA BECAUSE HE HAS A COLORABLE CLAIM OF INNOCENCE.

PART TWO: THE DEFENDANT SHOULD HAVE BEEN ENTITLED TO WITHDRAW HIS GUILTY PLEA BECAUSE HE PRESENTED FAIR AND JUST REASONS TO SUPPORT THE WITHDRAWAL.

PART THREE: THE DEFENDANT SHOULD HAVE BEEN ENTITLED TO WITHDRAW HIS GUILTY PLEA EVEN THOUGH THE PLEA WAS ENTERED AS PART OF A PLEA BARGAIN.

PART FOUR: THE DEFENDANT SHOULD HAVE BEEN ENTITLED TO WITHDRAW HIS GUILTY PLEA BECAUSE IT WOULD NOT HAVE RESULTED IN UNFAIR PREJUDICE TO THE STATE OR UNFAIR ADVANTAGE TO THE ACCUSED.

Based upon our review of the record, we conclude that defendant's arguments are unpersuasive.

When examining the Law Division's denial of a defendant's request to withdraw a guilty plea, we reverse "only if there was an abuse of discretion which renders the lower court's decision clearly erroneous." State v. Simon, 161 N.J. 416, 444 (1999) (citing State v. Smullen, 118 N.J. 408, 416 (1990)).

"[I]t is clear that the burden rests on defendant, in the first instance, to present some plausible basis for his request, and his good faith in asserting a defense on the merits, so the trial judge is able to determine whether fundamental fairness requires a granting of the motion. Any other approach would automatically require a trial judge to grant such motions, and strip him of any discretion in the matter. Liberality in exercising discretion does not mean an abdication of all discretion."

[State v. Luckey, 366 N.J. Super. 79, 86-87 (App. Div. 2004) (quoting State v. Huntley, 129 N.J. Super. 13, 17 (App. Div.), certif. denied, 66 N.J. 312 (1974)).]

Defendant's main argument revolves around his claim that his former counsel was ineffective for failing to ascertain defendant's immigration status at the time of representation and for failing to apprise defendant of the immigration consequences of his plea. Counsel's failure to do so, defendant argues, constitutes per se ineffective assistance of counsel under Padilla v. Kentucky, __ U.S. __, 130 S. Ct. 1473; 176 L. Ed. 2d 284 (2010), warranting vacation of the guilty plea and reversal of his conviction. We do not share defendant's view of the law.

This court considers four factors in reviewing a motion to vacate a guilty plea: "(1) whether defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reason for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." State v. Slater, 198 N.J. 145, 157-58 (2009). A motion to withdraw made after sentencing requires a demonstration of a "manifest injustice" in order to vacate a guilty plea. R. 3:21-1. Specifically, "defendant must show that the lack of information prejudiced him in making his decision to plead." State v. Johnson, 182 N.J. 232, 244 (2005).

Defendant at no time has asserted "a colorable claim of innocence." Slater, supra, 198 N.J. at 157. In his plea allocution, defendant, who had "just started college," provided a factual basis for his plea and entered it without reservation, stating "I distributed ecstasy to an undercover." Moreover, a defendant "carries a heavier burden" when seeking to withdraw a plea entered pursuant to a plea bargain. State v. Means, 191 N.J. 610, 619 (2007). Here, defendant faced three to five years of incarceration for his admitted crime, but was sentenced to just two years of probation.

The "the nature and strength of defendant's reason for withdrawal," ineffective assistance of counsel, also lacks sufficient merit. Slater, supra, 198 N.J. at 157-58. The Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee every defendant the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Taccetta, 200 N.J. 183, 192-93 (2009). In assessing an ineffective assistance of counsel claim, we apply the two-part test set forth in Strickland, adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

First, a defendant must show "that counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688. Second, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. When a defendant moves to vacate a guilty plea based on ineffective assistance of counsel, he must demonstrate not only that counsel provided objectively deficient representation but that, but for counsel's errors, he would have probably rejected the plea and proceeded to trial. State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 133 L. Ed. 2d 873, 116 S. Ct. 949 (1996).

Defendant primarily asserts that he suffered ineffective assistance of counsel because his attorney failed to ascertain his immigration status at the time of representation and as a result, failed to warn him of the potential deportation consequences of his plea.3 Defendant relies on State v. Nunez-Valdez, 200 N.J. 129 (2009), in which the New Jersey Supreme Court reversed a guilty plea on the basis that counsel affirmatively misled defendant as to the deportation consequences of his plea. Id. at 142. In that case, defendant raised the issue of his immigration status with counsel who informed him that it had "no part in this case." Id. at 133. Defendant also testified that had he known his immigration status could be affected, he would have proceeded to trial. Ibid. Here, not only did defendant never raise his immigration status as a point of interest or concern, but he has never asserted in a timely fashion that had he been apprised of the immigration consequences of his plea, he would have rejected it.

Defendant also cites to Padilla for the proposition that his counsel had an affirmative duty to advise defendant of the likely deportation consequences of his plea. Id. at 1486. Padilla held that "when the deportation consequence is truly clear . . . the duty to give correct advice is equally clear." Id. at 1483. "[A]ffirmative misadvice" is not required. Id. at 1484. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546 (codified in various sections of 8 U.S.C.A.) mandates deportation for any alien found to have committed an aggravated felony upon order of the Attorney General. 8 U.S.C.A. 1227(a)(2)(A)(iii). Distribution of a controlled dangerous substance is an aggravated felony under that law. 8 U.S.C.A. 1101(a)(43)(b).

If Padilla applied retroactively, counsel arguably would have had an affirmative duty to inform defendant of the deportation consequences of his plea. However, it is well-established that "new constitutional rules of criminal procedure [are not] applicable to those cases which have become final before the new rules are announced." Teague v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 1075, 103 L. Ed. 2d 334, 356 (1989). In this case, because defendant did not seek a direct appeal, his prayer for relief eight years after his case was finalized must be denied.

Even if we were to find that Padilla applied retroactively to defendant's claim, there is insufficient evidence in the record to suggest that "'but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" DiFrisco, supra, 137 N.J. at 457 (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 88 L. Ed. 2d 203, 210 (1985)). In Nunez-Valdez, the defendant testified that he would not have pled guilty had he known he would be deported. Nunez-Valdez, supra, 200 N.J. at 143. Although defendant asserts in his brief that "had he been effectively advised by [defense counsel] that his guilty plea would subject him to deportation, he would not have taken the plea," no affidavit or other competent evidence exists to support this claim.4 A defendant must "do more than make bald assertions." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Accordingly, we conclude that the second prong of the Strickland-Fritz paradigm is not satisfied under these facts, even if Padilla were to provide satisfaction of the first prong.

Finally, we do not believe that fundamental fairness warrants withdrawal of the guilty plea. The final Slater factor is "whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Slater, 198 N.J. at 158. The plea agreement, which defendant certified he read and signed independent of counsel, informed defendant that "if [he is] not a United States citizen or national, [he] may be deported by virtue of [his] plea of guilty." At the plea hearing, defendant testified under oath that he was satisfied with counsel's representation, that he understood the nature of the charges against him, and that he signed the plea agreement knowingly, intelligently, and free of coercion. We are satisfied that the interests of justice do not compel withdrawal of defendant's plea.

Affirmed.

1 Defendant's application was expressly filed as a motion to withdraw a plea pursuant to Rule 3:21-1, and not as a petition for post conviction relief (PCR) pursuant to Rule 3:22-1. Notwithstanding this procedural modality, defendant has raised conventional PCR arguments, including ineffective assistance of counsel. However, nowhere in his arguments does defendant seek an evidentiary hearing. See State v. Preciose, 129 N.J. 451 (1992).

2 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) (holding that to establish a constitutional deprivation, a convicted defendant must demonstrate that prior counsel's performance was deficient, and that the deficient performance actually prejudiced his defense).

3 Defendant also contends in his brief that his counsel was ineffective for meeting with him on just three occasions, all in court, in never discussing with him the facts or circumstances surrounding his arrest, and in making no discovery requests. However, these putative deficiencies either alone or cumulatively are not persuasive evidence of ineffective assistance of counsel, based upon the record of this motion.

4 Without leave of this court to supplement the record, defendant submitted a certification dated July 10, 2010, which for the first time asserts, "[h]ad I known at the time of my guilty plea on February 14, 2002 that I would be deported as a result, I would not have pled guilty to the charges against me. Rather I would have exercised my right to a trial." We decline to consider the merits of this newly-raised claim. State v. Smith, 55 N.J. 476, 488, cert. denied, 400 U.S. 949, 91 S. Ct. 232, 27 L. Ed. 2d 256 (1970).