STATE OF NEW JERSEY v. FREDDY RODRIGUEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6186-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FREDDY RODRIGUEZ,

Defendant-Appellant.

November 7, 2012

Submitted September 25, 2012 - Decided

Before Judges Harris and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-05-0970.

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

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

PER CURIAM

Defendant Freddy Rodriguez appeals from an April 13, 2011 order denying his petition for post-conviction relief. We affirm.

Defendant, born in Ecuador, came to the United States in 1988. He became a lawful permanent resident of the United States on November 7, 1997.

On February 9, 2009, defendant and Jesus Santos were arrested for attempting to sell cocaine to an undercover police officer. On May 14, 2009, a Hudson County grand jury returned a four count indictment charging defendant with: possession of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-10(a)(1) (count one); possession of cocaine in a quantity of less than one-half ounce with the intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) (count two); possession of cocaine with the intent to distribute, in violation of N.J.S.A. 2C:35-5a(1), while within 1,000 feet of a school, contrary to N.J.S.A. 2C:35-7 (count three); and conspiracy to distribute cocaine in a quantity of less than one-half ounce, contrary to N.J.S.A. 2C:5-2.

On June 30, 2009, defendant pleaded guilty to possession of cocaine with the intent to distribute within 1,000 feet of a school. In exchange, the State agreed to recommend a sentence of non-custodial probation and to dismiss charges against his co-defendant Santos. On August 21, 2009, defendant was sentenced in accordance with the plea agreement. On October 7, 2011, defendant was deported to Ecuador.

On August 17, 2010, defendant filed a petition for PCR, claiming his plea counsel provided ineffective assistance by failing to address the immigration consequences of pleading guilty. On April 13, 2011, Judge Paul M. DePascale issued a written decision denying defendant's petition.

On appeal, defendant raises the following arguments:

Point I: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND DEFENDANT'S CONVICTION AND SENTENCE VACATED BECAUSE TRIAL COUNSEL'S FAILURE TO ADVISE DEFENDANT OF THE IMMIGRATION CONSEQUENCES OF HIS PLEA DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

Point II: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTION AND SENTENCE VACATED BECAUSE DEFENDANT'S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, AND HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO BE INFORMED ABOUT THE IMMIGRATION CONSEQUENSES OF HIS PLEA BY BOTH THE TRIAL COURT AND BY TRIAL COUNSEL, WERE VIOLATED.

Based on our review of the record and the applicable law, we conclude that these arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons articulated in Judge DePascale's written decision. However, we add the following comments.

Defendant's argument rests on the United States Supreme Court's decision in Padilla v. Kentucky, U.S. , 130 S. Ct. 1473, 176 L. Ed. 2d 284, which held that an attorney's failure to inform a client about the deportation risks of pleading guilty to a criminal charge runs afoul of the Sixth Amendment right to counsel. However, our Supreme Court recently held that this rule is not entitled to retroactive application. State v. Gaitan, 209 N.J. 339, 371-72 (2012). Defendant entered his guilty plea and was sentenced prior to Padilla. Thus, he cannot rely on Padilla to support his PCR application.1

Defendant requests that we reject Gaitan and apply Padilla retroactively by following United States v. Orocio, 645 F.3d 630 (3rd Cir. 2011), where the Third Circuit reached the opposite conclusion as our Supreme Court. We deny defendant's request and defer to our Supreme Court on the issue.

Affirm.

1 State v. Nunez-Valdez, 200 N.J. 129 (2009) does also not apply, as defendant has not claimed that his plea attorney provided him affirmative misinformation regarding the potential immigration consequences of his plea. Gaitan, supra, 209 N.J. at 374.