STATE OF NEW JERSEY v. RICKY MARTIN

NOT FOR PUBLICATION WITHOUT THE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.

RICKY MARTIN LLOYD WALTERS,

Defendant-Appellant.

________________________________________________________________

November 19, 2015

Submitted October 20, 2015 Decided

Before Judges Fisher and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 89-01-0213.

Gibbons P.C., attorneys for appellant (Lawrence S. Lustberg and Benjamin Yaster, on the briefs).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the denial of his motion to withdraw his guilty plea, filed approximately twenty-five years after his guilty plea. We affirm.

In 1989, defendant entered a guilty plea to third-degree possession of a weapon and fourth-degree possession of a defaced firearm. The plea form reflects that, in response to the question, "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?", "Yes" is circled. The only sentence imposed was a fine. Defendant did not file a direct appeal.

In 2014, defendant filed a motion to withdraw his guilty plea, contending he was unaware of the deportation consequences of his plea. He does not argue that he is not guilty of the charges to which he pled guilty. He seeks to withdraw his plea so that he might renegotiate the plea to enter a guilty plea to a non-deportable offense.

In this appeal, defendant presents the following arguments for our consideration

THE COURT ABUSED ITS DISCRETION IN DENYING MR. WALTERS'S MOTION BECAUSE HIS GUILTY PLEA WAS ENTERED UNKNOWINGLY AND INVOLUNTARILY.

A. MR. WALTERS PRESENTS STRONG REASONS FOR WITHDRAWAL BECAUSE HIS GUILTY PLEA WAS UNKNOWING AND INVOLUNTARY.

1. MR. WALTERS WAS NOT INFORMED THAT HE WAS PLEADING GUILTY TO DEPORTABLE OFFENSES.

2. MR. WALTERS IS PREJUDICED BY ENFORCEMENT OF THE PLEA AGREEMENT.

3. THE TRIAL COURT COMMITTED CLEAR LEGAL ERROR BY NOT CONDUCTING AN EVIDENTIARY HEARING BEFORE FINDING THAT MR. WALTERS DID NOT MEET THE SECOND SLATER FACTOR.

B. THE STATE WOULD NOT BE UNFAIRLY PREJUDICED BECAUSE MR. WALTERS WILL STILL PLEAD GUILTY TO AN OFFENSE THAT WILL NOT RENDER HIM DEPORTABLE.

Defendant's arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following comments.

The trial judge's denial of defendant's motion is subject to review for abuse of discretion. "Thus, the trial court's denial of defendant's request to withdraw his guilty plea will be reversed on appeal only if there was an abuse of discretion which renders the lower court's decision clearly erroneous." State v. O'Donnell, 435 N.J. Super. 351, 372 (App. Div. 2014) (quotation marks omitted) (quoting State v. Simon, 161 N.J. 416, 444 (1999)).

Because defendant did not ask to withdraw his guilty plea until after sentencing, his request is governed by Rule 3:21-1, which states

A motion to withdraw a plea of guilty or non vult shall be made before sentencing, but the court may permit it to be made thereafter to correct a manifest injustice.

[(Emphasis added).]

Defendant identifies the manifest injustice to be corrected here as follows

(a) he was never informed about the immigration consequences of his guilty plea; (b) those immigration consequences were highly material to his decision to plead guilty; and (c) the prosecution would not be prejudiced because [defendant] does not contest his guilt and would enter a guilty plea to a lesser, non-deportable weapons possession offense.

"[T]he 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." State v. Smullen, 118 N.J. 408, 416 (1990) (citation omitted); see also State v. Slater, 198 N.J. 145, 156 (2009). Defendant has failed to satisfy this burden.

The factual premise for defendant's argument that he was not informed of the immigration consequences to his guilty plea is belied by the plea form, which warned defendant of the possibility of deportation. We reject defendant's argument that an evidentiary hearing was required because defense counsel certified he did not advise defendant of the immigration consequences of his guilty plea. Defendant entered his guilty plea before the Supreme Court decided Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), holding that an attorney's failure to advise a client of the potential immigration consequences of a guilty plea constituted ineffective assistance of counsel. Id. at 371, 130 S. Ct. at 1484, 176 L. Ed. 2d at 297. In State v. Gaitan, 209 N.J. 339 (2012), our Supreme Court concluded, "Padilla represents a new constitutional rule of law that, for Sixth Amendment purposes, is not entitled to retroactive application on collateral review." Id. at 371. Therefore, defense counsel was not obligated to advise defendant of the immigration consequences of his guilty plea in 1989. Moreover, the fact defense counsel did not independently so advise defendant does not negate the documentary evidence that he was informed of the consequences in the plea form.

The materiality of defendant's presumed belief he would not be deported is therefore not an issue here. In light of defendant's failure to show a manifest injustice, it is unnecessary to discuss possible prejudice to the State if his motion were granted.

We therefore conclude the trial judge did not abuse his discretion in denying defendant's motion to withdraw his guilty plea.

Affirmed.