STATE OF NEW JERSEY v. MIGUEL A. MOREL

NOT FOR PUBLICATION WITHOUT THE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.

MIGUEL A. MOREL,

Defendant-Appellant.

___________________________

May 28, 2015

Submitted May 19, 2015 Decided

Before Judges Fisher and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 11-05-0824.

Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Vecchio, Designated Counsel, on the brief).

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

PER CURIAM

Defendant Miguel A. Morel appeals from the dismissal of his petition for post-conviction relief (PCR), contending that he established a prima facie case of ineffective assistance of counsel requiring an evidentiary hearing. We affirm.

In order to resolve a seven-count indictment on drug charges, including possession with intent to distribute five or more ounces of cocaine within 1000 feet of a school, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-7, defendant pleaded guilty to first-degree possession with intent to distribute cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1), in exchange for a recommended sentence of ten years' imprisonment with a three-year period of parole ineligibility.

Prior to sentencing, defendant retained new counsel who brought a motion to withdraw the plea on the grounds that it was "a product of misinformation" by prior counsel. Specifically, defendant certified prior counsel "never advised [him] that deportation back to the Dominican Republic was an absolute certainty or virtual certainty given the charges" to which he was pleading guilty and had "give[n] [him] what [he] later learned was false hope that deportation was not a certainty." Defendant also claimed he did not realize he was "waiving all pretrial motions if a plea were to go forward," did not understand he was to "serve a first degree sentence before [he] was even to be deported" and "was not aware at the time of his guilty plea that an ICE [Immigration and Customs Enforcement] detainer and deportation looming over [him] would forbid [S]tate officials from sending [him] to a halfway house."

Before the conclusion of the hearing on the motion, at which defendant testified in accord with his certification, his new counsel negotiated a more favorable sentencing recommendation from the State in exchange for dismissal of the motion. Defendant again pleaded guilty to the same charge, but this time the State recommended that defendant be sentenced as if to a second-degree crime and receive a seven-year term of imprisonment with only twenty-eight months of parole ineligibility.

When defendant raised a question to the judge accepting his new plea about the judge's statement that defendant would serve a sentence and then be deported, the judge replied

Well, I can tell you that under our law you will be deported by pleading guilty, because this is an aggravated felony and there are no exceptions under the federal law. A federal . . . INS [Immigration and Naturalization Service] judge will make that decision, but you will be deported, there is no possibility that you will be able to remain in the United States after this is over. Are you aware of that?

Defendant answered "Yes," and the judge accepted his plea and sentenced him in accordance with his plea agreement.

Defendant did not file a direct appeal. Instead, he filed a PCR petition claiming his plea was not knowing and voluntary because his counsel did not advise him he would not be paroled after serving twenty-eight months and failed to advise him of the immigration consequences of his plea.

Judge Theemling, who took both of defendant's pleas and presided over the hearing on the motion to withdraw the first plea, denied the petition on the basis that defendant had failed to establish a prima facie claim for relief. See State v. Preciose, 129 N.J. 451, 462-64 (1992). Measuring defendant's claims against the two-prong Strickland1 standard, the judge found absolutely no evidence that defendant was misinformed about the consequences of his plea or would have rejected the more favorable plea his new counsel had negotiated and insisted instead on going to trial. See State v. Nu ez-Vald z, 200 N.J. 129, 139 (2009).

Defendant appeals and raises the following issues

I. THE PCR COURT ERRED IN NOT GRANTING

PETITIONER AN EVIDENTIARY HEARING SINCE PETITIONER WOULD BE ENTITLED TO POST-CONVICTION RELIEF WITH THE FACTS VIEWED IN A LIGHT MOST FAVORABLE TO HIM.

A. TRIAL COUNSEL WAS INEFFECTIVE FOR NOT DISCUSSING WITH PETITIONER THE POTENTIAL NEGATIVE IMMIGRATION CONSEQUENCES OF HIS PLEA, INCLUDING NOT ADVISING PETITIONER THAT HE WOULD BE DEPORTED AS A RESULT OF HIS PLEA TO AN AGGRAVATED FELONY.

B. TRIAL COUNSEL WAS INEFFECTIVE FOR NOT FILING PRE-TRIAL MOTIONS (NOT RAISED BELOW).

C. PETITIONER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE OF TRIAL COUNSEL'S FAILURE TO ARGUE FOR APPROPRIATE MITIGATING FACTORS (NOT RAISED BELOW).

We reject these claims as unworthy of discussion in a written opinion, R. 2:11-3(e)(2), and affirm substantially for the reasons expressed by Judge Theemling in his October 24, 2013 written decision.

Affirmed.

1 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).