STATE OF NEW JERSEY v. FRANCISCO OROPENZA-LIMA

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-5070-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

FRANCISCO OROPENZA-LIMA,

     Defendant-Appellant.
____________________________

              Submitted May 22, 2018 – Decided June 22, 2018

              Before Judges Fasciale and Moynihan.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Indictment No.
              15-05-0644.

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

              Dennis Calo, Acting Bergen County Prosecutor,
              attorney for respondent (Jenny X. Zhang,
              Special   Deputy    Attorney   General/Acting
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM
       Defendant Francisco Oropenza-Lima appeals from the denial of

his post-conviction relief (PCR) petition without an evidentiary

hearing, arguing:

             POINT I

             THE POST-CONVICTION RELIEF COURT ERRED IN
             DENYING THE DEFENDANT'S PETITION FOR POST-
             CONVICTION RELIEF WITHOUT AFFORDING HIM AN
             EVIDENTIARY HEARING TO FULLY ADDRESS HIS
             CONTENTION THAT HE WAS ENTITLED TO WITHDRAW
             HIS GUILTY PLEA ON THE BASIS HE HAD FAILED TO
             RECEIVE ADEQUATE LEGAL REPRESENTATION FROM
             TRIAL COUNSEL REGARDING THE DEPORTATION
             CONSEQUENCES ARISING OUT OF HIS GUILTY PLEA,
             RESULTING IN A GUILTY PLEA WHICH HAD NOT BEEN
             FREELY, KNOWINGLY AND VOLUNTARILY ENTERED.

We disagree and affirm.

       Absent an evidentiary hearing, our review of the factual

inferences drawn by the PCR court from the record is de novo.

State   v.   Blake,    
444 N.J.    Super.   285,     294    (App.    Div.       2016).

Likewise, we review de novo the PCR court's legal conclusions.

Ibid.

       To establish a PCR claim of ineffective assistance of counsel,

a defendant must satisfy the test formulated in Strickland v.

Washington, 
466 U.S. 668, 687 (1984), and adopted by our Supreme

Court in State v. Fritz, 
105 N.J. 42, 58 (1987), first by "showing

that    counsel     made    errors   so    serious     that       counsel    was    not

functioning    as     the   'counsel'     guaranteed    .     .   .   by    the   Sixth

Amendment," Fritz, 
105 N.J. at 52 (quoting Strickland, 466 U.S. 2                                   A-5070-16T4
at 687); then by proving he suffered prejudice due to counsel's

deficient    performance,        Strickland,    
466 U.S.  at    687,   691-92.

Defendant    must    show   by    a   "reasonable     probability"      that   the

deficient performance affected the outcome. Fritz, 
105 N.J. at 58.

     The array of inadequate attorney advice asserted by defendant

is varied.     In his PCR petition he maintained "my attorney said I

would not be deported."           In his amended PCR petition he claimed

his attorney advised him "because he had been in this country for

such a long period of time (over ten years) and had two children

here,"   his    term   of    incarceration       would    be      no   more    than

approximately one year and that             "he would not be deported."

Defendant's supplemental certification echoes those contentions

and adds that his counsel told him after he served his prison

term, he could hire an immigration attorney "to manage [his] case

and achieve this result."

     We determine, based on our review of the record, the trial

judge correctly denied an evidentiary hearing because defendant

did not establish a prima facie case in support of his PCR

application     by   demonstrating       "the    reasonable       likelihood     of

succeeding" under the Strickland test.                State v. Preciose, 
129 N.J. 451, 462-63 (1992); R. 3:22-10(b).                Judge James J. Guida

found defendant was properly advised of the penal and immigration

consequences of his plea as required by Padilla v. Kentucky, 559

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4 U.S. 356 (2010).1   As such, defendant failed to make a prima facie

showing of success under Strickland.

     After the PCR hearing, Judge Guida – who also presided over

defendant's plea hearing and sentencing – found that

           both in the plea allocution and in the written
           plea form, which is in Spanish and which [as
           to] the defendant had the benefit of
           translation, clearly reflects that he would
           be serving a [six]-year term at sentence, and
           that . . . for [thirty] months of that term .
           . . he would be ineligible for parole.

                So [defendant] knew on the date of the
           plea both orally from the [c]ourt, in writing
           in the Spanish-[language] form plea agreement,
           and through the interpreter that he would
           serve a minimum of [thirty] months . . . before
           he would be eligible for parole.

     Judge Guida also noted that in question seventeen of the plea

form — posed in English and Spanish – defendant answered that he

was not a United States citizen and knew he would be deported as

a result of the plea agreement; the judge highlighted that "will

be deported" was handwritten next to defendant's answers and

observed   defendant   "had   the   benefit   of   a   Spanish[-]language


1
  "The weight of prevailing professional norms supports the view
that counsel must advise [a] client regarding the risk of
deportation." Padilla, 
559 U.S.  at 367. "To provide effective
assistance of counsel, post-Padilla, a defense attorney is
required to address, in some manner, the risk of immigration
consequences of a non-citizen defendant's guilty plea." Blake,

444 N.J. Super. at 295.      "The failure to do so constitutes
'deficient performance of counsel.'" Id. at 296 (quoting State
v. Gaitan, 
209 N.J. 339, 380 (2012)).

                                    4                             A-5070-16T4
translator" when he completed the plea form.                 The judge further

found that the record reflected his advice to defendant during the

plea colloquy that he would be deported and defendant's sworn

response    that,     notwithstanding        that    fact,   he    knowingly     and

voluntarily accepted the plea agreement.              And without any protest

from defendant who had the opportunity to address the trial court

at   sentencing,    defendant's     counsel     requested      a   lenient    state

prison sentence because defendant was going to be deported.

      The record fully supports Judge Guida's findings.                 During the

plea hearing, defendant admitted he spoke with an immigration

attorney.      The judge, after advising him of the second-degree

range plea offer, pointedly told defendant "the consequences are

that you will be deported after you serve your sentence"; defendant

said he understood those consequences.

      Defendant's averment that his counsel advised he would not

be deported and would serve only a year or so before an immigration

attorney could help him avoid deportation, and his explanation

that he followed counsel's advice to agree with any question posed

during   the   plea    process    even   if    the    answer      was   false,   are

contradicted by his written and sworn oral responses during the

plea process, and counsel's plea for a lenient sentence based on

defendant's deportation.         These bare assertions, belied throughout

the record of proceedings, are "insufficient to support a prima

                                         5                                  A-5070-16T4
facie case of ineffectiveness." State v. Cummings, 
321 N.J. Super.
 154, 171 (App. Div. 1999); see also Blake, 
444 N.J. Super. at 299.

An evidentiary hearing — not a proper vehicle to explore PCR claims

— was not warranted.    See State v. Marshall, 
148 N.J. 89, 157-58

(1997).

     We also agree with Judge Guida that defendant failed to meet

the second Strickland prong by failing to establish – assuming

counsel misadvised him of his immigration consequences — that

there was a reasonable probability that, but for counsel's errors,

he would have rejected the plea offer and gone to trial.              State

v. DiFrisco, 
137 N.J. 434, 528 (1994).         Defendant, who was found

with over five ounces of cocaine in his car, faced a ten- to

twenty-year state prison sentence on the first-degree possession

with intent to distribute a controlled dangerous substance (CDS)

charge, 
N.J.S.A. 2C:35-5(a)(1), -5(b)(1), in count one of the

indictment.   
N.J.S.A. 2C:43-6(a)(1).        He faced a mandatory parole

ineligibility   term   of   one-third   to   one-half   of   the   sentence

imposed.   
N.J.S.A. 2C:35-5(b)(1).

     Defendant was also indicted for second-degree possession of

a weapon during the commission of a CDS-related offense, 
N.J.S.A.

2C:39-4.1(a) (count two); second-degree unlawful possession of a

handgun, 
N.J.S.A. 2C:39-5(b) (count three); third-degree receiving

stolen property, 
N.J.S.A. 2C:20-7(a) (count four); third-degree

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possession     of   CDS,   
N.J.S.A.   2C:35-10(a)(1)   (count   five);   and

fourth-degree possession of drug paraphernalia with the intent to

distribute, 
N.J.S.A. 2C:36-3 (count six).              He could have been

sentenced to a consecutive term on the weapons offenses.                  We

therefore affirm the judge's determination that defendant failed

to establish that, but for counsel's assumed error, he would not

have pleaded guilty to a deal that netted a six-year sentence with

thirty months of parole ineligibility. State v. O'Donnell, 
435 N.J. Super. 351, 371 (App. Div. 2014) (holding a defendant "must

convince the court that a decision to reject the plea bargain

would   have    been   rational   under    the   circumstances"   (quoting

Padilla, 
559 U.S. at 372)).

     Affirmed.




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