STATE OF NEW JERSEY v. JUAN A. RIPOL

NOT FOR PUBLICATION WITHOUT THE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-4607-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JUAN A. RIPOL, a/k/a JUAN
ANTONIO RIPOL-TAVARES,

     Defendant-Appellant.
______________________________

                    Submitted November 27, 2018 – Decided January 23, 2019

                    Before Judges Hoffman and Geiger.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment No. 07-05-0849.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Kevin G. Byrnes, Designated Counsel, on
                    the brief).

                    Esther Suarez, Hudson County Prosecutor, attorney for
                    respondent (Svjetlana Tesic, Assistant Prosecutor, on
                    the brief).

PER CURIAM
      Seeking to avoid deportation nearly nine years after his conviction of drug

and money laundering charges, defendant Juan Ripol appeals from a May 23,

2017 Law Division order denying his petition for post-conviction relief (PCR).

He claims he received ineffective assistance of counsel when he pleaded guilty

in 2007 because his plea counsel did not advise him he would be deported. On

both factual and legal grounds, we reject defendant's contentions and affirm

denial of his PCR petition.

                                       I.

      Defendant is not a United States citizen. He is a citizen of the Dominican

Republic, and contends that he came to the United States before the age of two.

He had one disorderly person's offense, which was drug related, before his 2006

arrest for possession of fourteen bags of marijuana, weighing approximately

seven ounces, on his person, and possession of additional marijuana and

paraphernalia in his apartment, along with $15,146. A Hudson County grand

jury indicted him on charges including third-degree possession of marijuana

with intent to distribute in a school zone,  N.J.S.A. 2C:35-7, and third-degree

money laundering,  N.J.S.A. 2C:21-25. If convicted of those charges, defendant

faced a minimum mandatory term of three years imprisonment and a maximum

state prison term of ten years.  N.J.S.A. 2C:35-7;  N.J.S.A. 2C:43-6(a)(3).


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      With the advice of counsel, defendant accepted a plea offer, in accordance

with  N.J.S.A. 2C:35-12, that would avoid the mandatory period of incarceration

and instead recommend a sentence of probation. At his October 26, 2007 plea

hearing, defendant admitted he possessed the marijuana, and "in the event that

one of [his] friends or anyone wanted some[, he] would sell it to them . . . ." In

addition, defendant answered, "Yes. I understand," to the following inquiry by

the judge: "[This] conviction could be used against you by immigration or

customs to deny citizenship, or change your status in this country, or even

deportation. Do you understand that?" Further, the risk of deportation was

addressed in a written plea form signed by defendant as part of the record of his

guilty plea. Question 17 of the plea form asked: "Do you understand that if you

are not a United States citizen or national, you may deported by virtue of your

plea of guilty?" Defendant answered "yes."

      On January 17, 2008, the judge sentenced defendant to two years of

probation with fifty hours of community service, and the forfeiture of the

$15,146 found at defendant's apartment. Defendant served his probationary

sentence and did not file a direct appeal.

      On November 2, 2016, almost nine years after his plea and conviction,

defendant filed the PCR petition under review. In a supporting certification,


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defendant stated he was "currently in deportation proceedings for accepting the

plea." By the time of his PCR hearing, defendant had been deported to the

Dominican Republic. The PCR judge found excusable neglect for the filing of

defendant's petition beyond five years of his conviction and sentence, apparently

because the plea judge did not mention his right to file a PCR petition at his plea

hearing or sentencing.     The PCR judge therefore addressed the merits of

defendant's petition; in an oral statement of reasons, the judge denied PCR

without an evidentiary hearing.

      On appeal, defendant makes the following arguments:

            POINT I

                   THE DEFENDANT WAS DENIED THE RIGHT
                   TO EFFECTIVE ASSISTANCE OF TRIAL
                   COUNSEL WHEN COUNSEL PROVIDED
                   MISLEADING INFORMATION ABOUT THE
                   EFFECTS OF THE GUILTY PLEA ON THE
                   DEFENDANT'S IMMIGRATION STATUS.

            POINT II

                   THE PLEA AGREEMENT SHOULD BE SET
                   ASIDE BECAUSE IT WAS THE RESULT OF A
                   MANIFEST INJUSTICE.

            POINT III

                   THE DEFENDANT IS ENTITLED TO AN
                   EVIDENTIARY HEARING.


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      We are not persuaded by these arguments, as defendant's submissions did

not make a prima facie showing of ineffective assistance of counsel leading to

his guilty plea.

                                        II.

                                        A.

      To establish a prima facie case of ineffective assistance of counsel,

defendant must satisfy the two-prong test articulated in Strickland v.

Washington,  466 U.S. 668, 687 (1984), which our Supreme Court adopted in

State v. Fritz,  105 N.J. 42, 58 (1987). "First, the defendant must show . . .

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. at 687). Defendant must then show counsel's deficient

performance prejudiced the defense. Ibid. To show prejudice, defendant must

establish by "a reasonable probability" that the deficient performance

"materially contributed to defendant's conviction . . . ." Id. at 58.

      PCR is New Jersey's analogue to the federal writ of habeas corpus. State

v. Afanador,  151 N.J. 41, 49 (1997) (citing State v. Preciose,  129 N.J. 451, 459

(1992)). It is the vehicle through which a defendant may, after conviction and

sentencing, challenge a judgment of conviction by raising issues that could not


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have been raised on direct appeal and, therefore, ensures that a defendant was

not unjustly convicted. State v. McQuaid,  147 N.J. 464, 482 (1997) (citation

omitted).

      The denial of an evidentiary hearing for a PCR petition is reviewed for an

abuse of discretion. State v. Brewster,  429 N.J. Super. 387, 401 (App. Div.

2013). However, reviewing courts "may exercise de novo review over the

factual inferences the trial court has drawn from the documentary record." State

v. O'Donnell,  435 N.J. Super. 351, 373 (App. Div. 2014).

      "If a claim of ineffective assistance follows a guilty plea, the defendant

must prove counsel's constitutionally deficient representation and also 'a

reasonable probability that, but for counsel's errors, he would not have pleaded

guilty and would have insisted on going to trial.'" Brewster,  429 N.J. Super. at
 392 (quoting Hill v. Lockhart,  474 U.S. 52, 59, (1985)) (other citation omitted).

                                       B.

      Defendant's substantive claims of his counsel's alleged ineffectiveness are

insufficient to warrant an evidentiary hearing, let alone an order setting aside

his prior convictions. Because defendant was convicted long before the United

States Supreme Court issued its seminal 2010 opinion in Padilla v. Kentucky,

 559 U.S. 356, 367 (2010) concerning deportation consequences to a criminal


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defendant, his claims are governed by the standards of State v. Nunez-Valdez,

 200 N.J. 129 (2009). Under those pre-Padilla standards, a defendant seeking

relief based upon post-conviction deportation consequences can only prevail if

he demonstrates that his prior counsel provided him with affirmatively

misleading advice about such consequences flowing from a guilty plea. Id. at

139-43; see also State v. Santos,  210 N.J. 129, 143 (2012).

      In one of the two certifications defendant submitted to the PCR court,

defendant asserted that "[n]either the [j]udge nor [his] attorney ever told [him]

that [he] was subject to mandatory removal for aggravated felony by accepting

the plea pursuant to" the statutes he pled guilty to violating.       In the other

certification, defendant stated that his "attorney never advised [him] to speak to

an immigration attorney prior to accepting the plea," and that he "never would

have accepted this plea if [he] kn[ew] . . . about the federal guidelines regarding

deportation involving the crimes [he] pled guilty to." Finally, in his pro se brief

before the PCR court, which he labelled as a "certification" but did not certify

his statements as true – as he did in the other two certifications – defendant

asserted "that his counsel not only failed to advise him of this consequence . . .

but also told him that he 'did not have to worry about immigration status.'"

Defendant provided no substantiation as to this factual assertion, nor did


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defendant's PCR counsel mention the alleged event in his brief to the PCR judge,

or at the PCR hearing. Rather, defendant's PCR counsel only asserted that

defendant's plea counsel should have advised defendant of the consequences

pertaining to deportation if he pleaded guilty, and should have advised defendant

to speak with an immigration attorney.

      At most, defendant's petition alludes vaguely to his former attorneys'

failure to tell him about deportation consequences. Such "bald assertions" of

ineffectiveness are inadequate to support a prima facie claim. State v.

Cummings,  321 N.J. Super. 154, 170 (App. Div. 1999); see also State v. Porter,

 216 N.J. 343, 349 (2013). The PCR judge correctly denied defendant's petition

without an evidentiary hearing.

      Defendant also argues he received ineffective assistance when his trial

counsel failed to contest the search and seizure in the case.        Although a

suppression motion was filed, it was withdrawn when the plea agreement was

reached. The PCR judge found the withdrawal of the motion was reasonable

and that defendant benefitted from the plea agreement. We see no merit in

defendant's allegations regarding the withdrawal of the suppression motion.

Defendant did not assert a colorable claim of innocence, and the evidence




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against him was overwhelming.       Nevertheless, defendant received a very

favorable plea agreement, which allowed him to avoid a state prison term.

      Affirmed.




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