STATE OF NEW JERSEY v. ARGELIS JAQUEZ-TORRES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3810-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ARGELIS JAQUEZ-TORRES,

Defendant-Appellant.

________________________________

June 14, 2013

Submitted June 3, 2013 - Decided

Before Judges Sabatino and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-02-0423.

Joseph E. Krakora, Public Defender, attorney for appellant (Dianne Glenn, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Brian W. Schreyer, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Argelis Jaquez-Torres appeals the trial court's December 7, 2011 order dismissing his petition for post-conviction relief ("PCR") with respect to his 2010 conviction. We affirm.

On May 11, 2009, defendant pled guilty to an amended charge of fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4), on the first amended count of a five-count indictment that had originally charged him with armed robbery (count one); unlawful possession of a weapon (count two); possession of a weapon for an unlawful purpose (count three); conspiracy (count four); and resisting arrest (count five). As part of the related plea agreement, the State agreed to recommend a maximum sentence of eighteen months, with an equivalent period of parole ineligibility, with the understanding that defense counsel would argue for a sentence of time already served. The plea agreement significantly reduced defendant's aggregate exposure under the indictment.

The record indicates that in Union City on November 15, 2007, defendant and a confederate held up the victim, demanding money. Defendant was in possession of a BB gun. Within a short time following the victim's report of the incident to the police, officers saw defendant. They gave chase, and apprehended him. The victim identified defendant at the scene. He admitted to the police that he had disposed of the BB gun in flight.

During the course of his plea colloquy, defendant specifically admitted that he had possessed the BB gun on the date in question, and that he had pointed it at another person. The court and the State found defendant's sworn admissions provided an adequate factual basis for the aggravated assault offense.

On January 22, 2010, the trial court imposed a sentence consistent with the plea agreement, consisting of an eighteen- month term without parole. The other counts of the indictment were dismissed. Defendant did not file a direct appeal of his sentence.

In or about March 2010, federal immigration authorities began proceedings to deport defendant, a native of the Dominican Republic who has been in this country as a permanent resident. The deportation measures prompted defendant to file his PCR petition with the trial court in December 2010. In his petition, defendant claimed that he had been deprived of the effective assistance of his trial counsel at the time of his plea. More specifically, defendant alleged that his plea counsel had only advised him that deportation was merely a possibility as a result of his conviction for aggravated assault, failing to tell him that such an offense triggered mandatory deportation.

After considering defendant's claims and the State's opposition, Hon. Paul M. DePascale, J.S.C., the same judge who had taken the plea and imposed sentence in this case, dismissed the PCR petition. Among other things, Judge DePascale concluded in his oral opinion that defendant had not shown a reasonable probability that, had he known more about his deportation consequences, he would have declined the State's plea offer and gone to trial. The judge noted that the State's case against defendant was "extremely strong," and that defendant's "prospects for an acquittal under th[is] set of facts [were], at best, remote." In addition, the judge found it significant that defendant otherwise had been facing a twenty-year exposure under the No Early Release Act, N.J.S.A. 2C:43-7.2, and that "no rational person would have rejected the plea offer . . . irrespective of the [plea] consequences."

On appeal, defendant raises this singular contention:

THE PCR COURT ERRED IN DENYING THE PETITION FOR POST-CONVICTION RELIEF WITHOUT PROVIDING MR. JAQUES-TORRES AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.

The Sixth Amendment of the United States Constitution assures a person accused of a crime the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the general two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).

The United States Supreme Court has extended these principles to the representation provided by a criminal defense attorney to a defendant in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). Pursuant to that case law, a defendant must establish with "reasonable probability" that the result in his case would have been different had he received proper advice from his trial attorney. Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). Hence, in the present context involving an accepted plea agreement, in order for defendant to obtain relief based on ineffective assistance grounds, he must show not only the particular manner in which counsel's performance was deficient, but also that but for counsel's deficiency, there is a reasonable probability that he would not have pled guilty and would have insisted on going to trial. SeeHill v. Lockhart, 474 U.S. 52, 56-59, 106 S. Ct. 366, 369-70, 88 L. Ed. 2d 203, 208-10 (1985); State v. DiFrisco, 137 N.J.434, 456-57 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).

Here, defendant has shown neither that his plea counsel was constitutionally deficient, nor 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. Because of these patent deficiencies, his PCR petition was rightly dismissed.

As to the first prong of deficient performance, defendant alleges that his plea counsel failed to advise him that deportation was a mandatory consequence of his conviction. That alleged failure did not amount to ineffective assistance of counsel under the Sixth Amendment, under the law that existed as of the time that defendant's plea was entered in May 2009 and he was sentenced in January 2010. It was not until March31, 2010, that the United States Supreme Court held in Padilla v. Kentucky, 559 U.S. 356, ___, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284, 298-99 (2010), that plea counsel's failure to advise a defendant of mandatory deportation consequences from a conviction could represent deficient performance in violation of a defendant's constitutional rights.

Decisional law has now made clear that that the more stringent advice obligations concerning deportation recognized in Padillado not apply retroactively. SeeChaidez v. United States, 568 U.S.___, ___, 133 S. Ct. 1103, 1105, 185 L. Ed. 2d 149, 154 (2013); State v. Gaitan, 209 N.J.339, 367 (2012), cert. denied, ___ U.S.___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). Because defendant took no direct appeal of his conviction in 2010, he cannot seek refuge from the holding of Padillawith respect to his plea counsel's alleged failure to speak up and tell him that his deportation would be mandatory.

Even if we were to accept defendant's claim that his plea counsel affirmatively gave him misleading advice by stating that his deportation was only a possibility, that claimed error does not automatically entitle him to PCR relief. SeeState v. Nunez-Valdez, 200 N.J.129, 142-43 (2009) (recognizing that a defendant can show ineffective assistance of counsel by proving that his guilty plea resulted from "inaccurate information" from counsel concerning deportation consequences, but still requiring the defendant to show that he was actually prejudiced by that misadvice). Defendant must separately prove that there was a reasonable probability that he would have rejected the plea offer and taken his chances at a trial. Lafler, supra, 566 U.S.at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07.

We thoroughly concur with Judge DePascale's analysis that there is no reasonable probability in this case that a rational person in defendant's shoes would have rejected the State's eighteen-month plea offer and risked a far greater exposure of a much longer sentence at trial. The State's proofs of his guilt were overwhelming. Hence, the second prong of the constitutional test for relief has not been met.

To the extent that defendant has raised other miscellaneous allegations of counsel's ineffectiveness, including a failure to pursue discovery, conduct more investigation, and file pretrial motions, those contentions all lack sufficient merit to be discussed in this opinion. R.2:11-3(e)(1)(E).

Affirmed.