                                NOT FOR PUBLICATION WITHOUT THE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-0933-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

WILLIAM PINEIDO-AGUILAR,

     Defendant-Appellant.
_____________________________

                    Submitted January 8, 2019 – Decided January 30, 2019

                    Before Judges Vernoia and Moynihan.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Passaic County, Indictment No. 99-05-0445.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Monique D. Moyse, Designated Counsel, on
                    the brief).

                    Camelia M. Valdes, Passaic County Prosecutor,
                    attorney for respondent (Christopher W. Hsieh, Chief
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant William Pineido-Aguilar appeals from a July 31, 2017 order

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

hearing. Based on our review of the record in light of the applicable law , we

affirm.

                                        I.

      In 1999, defendant was charged in Indictment No. 99-05-0445 with three

drug offenses, one of which was third-degree possession of a controlled

dangerous substance, cocaine, with intent to distribute within 1000 feet of school

property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a). He was also charged in

Indictment No. 99-04-0389 with five offenses, one of which was also third-

degree possession of a controlled dangerous substance, cocaine, with intent to

distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A.

2C:35-5(a).1

      On June 7, 1999, defendant pleaded guilty pursuant to a plea agreement

to the two counts of third-degree possession of a controlled dangerous substance,

cocaine, with intent to distribute within 1000 feet of school property, N.J.S.A.



1
  The record does not allow an identification of the remaining four charges in
Indictment No. 99-04-0389. Defendant's plea form, however, reflects that those
charges were to be dismissed at sentencing on the charges to which defendant
pleaded.
                                                                          A-0933-17T4
                                        2
2C:35-7 and N.J.S.A. 2C:35-5(a), charged in the separate indictments. Two

months later, the court sentenced defendant to concurrent three-year custodial

terms with concurrent one-year periods of parole ineligibility on each of the

charges.2 Defendant did not file a direct appeal.

      Seventeen years later, on July 22, 2016, defendant filed a pro se PCR

petition claiming his plea counsel was ineffective by failing to inform him about

the immigration consequences of his plea under Indictment No. 99-05-0445.3

More particularly, the petition asserted that defendant's plea counsel was

ineffective by failing to: "advise [him] that by accepting the plea he was

subject[] to deportation," "inform him of the potential threat of deportation,"

"inform[] him that . . . accepting the plea agreement . . . would trigger the threat

of deportation," "inform him that 'it is [the] policy of Immigration and Custom[s]

Enforcement (I.C.E.) to deport any non-citizens who are convicted of . . . felony

[offenses],'" "advise that there was a risk of deportation," "fully explain the

immigration consequences of the plea," and advise him "that his plea would


2
  The record suggests defendant was on juvenile probation at the time of the
commission of the offenses. The custodial term imposed by the court was made
concurrent to any disposition made on defendant's violation of probation in a
Family Part juvenile matter.
3
  Defendant did not seek relief from his conviction under Indictment No. 99 -
04-0389 in his PCR petition or before the PCR court.
                                                                            A-0933-17T4
                                         3
subject him to a 'virtually automatic' deportation." Defendant claimed that as a

result of plea counsel's "advice failure," an immigration detainer was placed on

him on October 19, 2015, he was taken into custody at some unspecified time

and is subject to deportation.

      Following the assignment of counsel on his PCR petition, defendant filed

a certification again asserting his plea counsel was ineffective. Defendant stated

he would not have accepted the plea agreement and pleaded guilty if he had

known of the plea's immigration consequences. He also asserted that it was not

until he was taken into custody by I.C.E. that he became aware of the

immigration consequences of his plea.

      In an oral opinion following oral argument on defendant's petition, the

PCR judge rejected the State's contention that the petition is time-barred under

Rule 3:22-12. On the petition's merits, the judge determined defendant failed to

establish a prima facie claim of ineffective assistance of counsel under the

standard established in Strickland v. Washington, 466 U.S. 668, 687 (1984).

Relying solely on his personal knowledge of plea counsel, the judge said plea

counsel was "an experienced criminal defense attorney, having practiced

primarily criminal law since the day that [counsel] went into private practice"

and that he had "observed [plea counsel] in court."        The judge concluded


                                                                          A-0933-17T4
                                        4
defendant failed to demonstrate plea counsel's performance was deficient "under

the applicable case law" based on a finding "[plea counsel] is more than

proficient in representing criminal defendants."

        The judge also found defendant failed to show prejudice from his

counsel's alleged error. The judge found defendant received a "generous plea

offer and . . . faced a lot more time on [the] matter if he were . . . convicted."

The judge further observed that defendant completed the plea form, "indicated

that he was a citizen" and responded on the plea form to Question 17, which

asked if defendant "under[stood] that if [he is] not a citizen of the United States

or a national [he] may be deported by virtue of [his] guilty plea" by circling

"N/A," meaning "not applicable." The judge found "it hard to believe that

[defendant] found out [eighteen] years later . . . that he wasn't a citizen," and

concluded defendant presented no support, other than his bald assertion, that he

would not have pleaded guilty if he knew the immigration consequences of his

plea.

        The judge also found defendant failed to establish an entitlement to

withdraw his plea under the standard articulated by our Supreme Court in State

v. Slater, 198 N.J. 145 (2009). The judge found defendant failed to assert a

colorable claim of innocence and did not present "reasons for withdrawal . . .


                                                                           A-0933-17T4
                                        5
strong enough" to allow withdrawal of the plea.         The court further found

defendant's plea was the product of a plea agreement and that withdrawal of the

plea would result in unfair prejudice to the State.

      The court entered a July 31, 2017 order denying defendant's PCR petition

without an evidentiary hearing. This appeal followed.

      Defendant presents the following argument for our consideration:

            POINT ONE

            MR. PINEIDO-AGUILAR IS ENTITLED TO AN
            EVIDENTIARY HEARING ON HIS CLAIM THAT
            HIS ATTORNEY RENDERED INEFFECTIVE
            ASSISTANCE OF COUNSEL FOR MISINFORMING
            HIM     ABOUT     THE      DEPORTATION
            CONSEQUENCES OF HIS PLEA AND ON HIS
            CLAIM THAT HE SHOULD BE ALLOWED TO
            WITHDRAW HIS PLEA BECAUSE IT WAS NOT
            KNOWING OR VOLUNTARY.

                                        II.

      The Sixth Amendment to the United States Constitution and Article I ,

Paragraph 10 of the New Jersey Constitution guarantee that a defendant in a

criminal proceeding has the right to the assistance of counsel in his defense. The

right to counsel includes "the right to the effective assistance of counsel." State

v. Nash, 212 N.J. 518, 541 (2013) (quoting Strickland, 466 U.S. at 686).




                                                                           A-0933-17T4
                                        6
      In Strickland, the Court established a two-part test, later adopted by our

Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), to determine whether a

defendant has been deprived of the effective assistance of counsel. Strickland,

466 U.S. at 687. Under the first prong of the Strickland standard, a petitioner

must show that counsel's performance was deficient.            Ibid.   It must be

demonstrated that counsel's handling of the matter "fell below an objective

standard of reasonableness," id. at 688, and that "counsel made errors so serious

that counsel was not functioning as the 'counsel' guaranteed the defendant by the

Sixth Amendment," id. at 687.

      Under the second prong of the Strickland standard, a defendant "must

show that the deficient performance prejudiced the defense." Ibid. There must

be a "reasonable probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different." Id. at 694.

      A petitioner must establish both prongs of the Strickland standard to

obtain a reversal of the challenged conviction. Id. at 687; Nash, 212 N.J. at 542;

Fritz, 105 N.J. at 52. A failure to satisfy either prong of the Strickland standard

requires the denial of a PCR petition. Strickland, 466 U.S. at 700.

      We review the legal conclusions of a PCR court de novo. State v. Harris,

181 N.J. 391, 415 (2004). The de novo standard of review also applies to mixed


                                                                           A-0933-17T4
                                        7
questions of fact and law. Id. at 419-20. Where, as here, an evidentiary hearing

has not been held, it is within our authority "to conduct a de novo review of both

the factual findings and legal conclusions of the PCR court." Id. at 421.

      Defendant argues a reversal is warranted because the judge made findings

of fact lacking evidentiary support and relied on his personal knowledge of plea

counsel's professional experience and expertise as the basis for finding

defendant failed to demonstrate counsel's performance was deficient.             The

judge's personal knowledge concerning plea counsel was irrelevant, did not

constitute competent evidence and should not have been considered, much less

relied upon, to make his determinations in this matter. See Wallington Home

Owners Ass'n v. Borough of Wallington, 130 N.J. Super. 461, 465 (App. Div.)

("A judge's private knowledge is entitled to no weight at all."), aff'd o.b., 66 N.J.

30 (1974); Amadeo v. Amadeo, 64 N.J. Super. 417, 424 (App. Div. 1960)

(finding "[a] judge's private knowledge is no substitute for required proof" and

"is entitled to no weight" in making factual determinations).        Moreover, we

agree there is no support in the record for the court's finding defendant said he

was a citizen during his plea proceeding. The record shows defendant never

made such a statement.




                                                                             A-0933-17T4
                                         8
      The court's errors, however, do not require reversal of the challenged

order. We conduct a de novo review of the record, Harris, 181 N.J. at 421,

without regard to the judge's personal knowledge concerning plea counsel and

determine the validity of the court's order, not its reasoning, see Do-Wop Corp.

v. City of Rahway, 168 N.J. 191, 199 (2001) (explaining "appeals are taken from

orders and judgments and not from . . . reasons given for the ultimate

conclusion"). Our de novo review reveals that defendant failed to sustain his

burden of establishing a prima facie claim of ineffective assistance of counsel

under the Strickland standard.

      "Although a demonstration of prejudice constitutes the second part of the

Strickland analysis, courts are permitted leeway to choose to examine first

whether a defendant has been prejudiced . . . and if not, to dismiss the claim

without determining whether counsel's performance was constitutionally

deficient." State v. Gaitan, 209 N.J. 339, 350 (2012) (citations omitted). In the

context of a PCR petition challenging a guilty plea based on ineffective

assistance of counsel, the second prong is established when the defendant

demonstrates a "reasonable probability that, but for counsel's errors, [the

defendant] would not have pled guilty and would have insisted on going to trial."

State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (alteration in original) (quoting


                                                                         A-0933-17T4
                                       9
State v. DiFrisco, 137 N.J. 434, 457 (1994)). A defendant must further show "it

would have been rational for him to decline the plea offer and insist on going to

trial and, in fact, that he probably would have done so." State v. Maldon, 422

N.J. Super. 475, 486 (App. Div. 2011) (citing Padilla v. Kentucky, 559 U.S. 356,

372 (2010)).

      In his pro se petition and subsequent certification, defendant repeatedly

states he would not have pleaded guilty and would have proceeded to trial if he

had been aware of the immigration consequences of his plea. Those bald

assertions are insufficient to satisfy defendant's burden under Strickland's

second prong because they are untethered to any claim or showing it would have

been rational for him to reject the plea agreement and proceed to trial. See

Padilla, 559 U.S. at 372 (2010). Defendant's petition, certification and briefs

simply do not address the issue.

      In addition, the record shows defendant received an advantageous plea

agreement and otherwise provides no basis to conclude it would have been

rational for defendant to reject the plea offer and proceed to trial. Defendant

was confronted with eight separate criminal charges in two indictments and

faced the prospect of consecutive sentences if he was convicted of offenses

under both indictments.      See generally N.J.S.A. 2C:44-5(a) (authorizing


                                                                         A-0933-17T4
                                      10
imposition of consecutive sentences where "multiple sentences of imprisonment

are imposed"); State v. Yarbough, 100 N.J. 627, 644 (1985) (explaining that the

considerations determining the appropriateness of a consecutive sentence

include whether "the crimes and their objectives were predominantly

independent of each other," "the crimes were committed at different times or

separate places," and "the convictions for which the sentences are to be imposed

are numerous").

      Defendant faced up to five years of imprisonment on each of the two third-

degree offenses to which he pleaded guilty, see N.J.S.A. 2C:43-6(a)(3), and thus

was exposed to consecutive sentences totaling ten years on those charges alone

and up to a five-year period of parole ineligibility, see N.J.S.A. 2C:43-6(b).4

However, defendant's plea agreement limited his custodial exposure on those

charges to three years with a one-year parole ineligibility period, and the court

sentenced defendant in accordance with the agreement. In any event, defendant

failed to present any evidence or make any showing that, had he been informed

of the immigration consequences of his plea, it would have been rational to reject




4
  It is not possible to determine defendant's sentencing exposure on the four
charges under Indictment No. 99-04-0389 that were dismissed under the plea
agreement. As noted, the record does not identify those charges.
                                                                          A-0933-17T4
                                       11
the plea offer and proceed to trial and he probably would have done so. Maldon,

422 N.J. Super. at 486.

      Defendant's failure to sustain his burden under the second prong of the

Strickland standard requires the denial of his PCR petition. Strickland, 466 U.S.

at 700. Because defendant failed to satisfy his burden of establishing prejudice

under the second prong of the Strickland standard, we are satisfied that the court

correctly denied defendant's PCR petition. We therefore do not need to address

defendant's claim that his plea counsel's performance was deficient by failing to

inform him about the immigration consequences of his plea. See Nash, 212 N.J.

at 543-44 (finding that defendant's failure to establish one prong of the

Strickland standard renders it unnecessary to consider the other prong).

      We reject defendant's claim that the court erred by denying his request for

an evidentiary hearing. 5 A PCR court should grant an evidentiary hearing if a

defendant establishes a prima facie claim in support of PCR. State v. Preciose,

129 N.J. 451, 462-63 (1992). As noted, however, defendant failed to establish

a prima facie ineffective assistance of counsel claim because he did not



5
   Because we affirm the court's order denying defendant's PCR petition and
request for an evidentiary hearing on the merits, it is unnecessary to address the
State's contention that the court erred by finding the petition was timely filed
under Rule 3:22-12(a)(1).
                                                                           A-0933-17T4
                                       12
demonstrate prejudice under the second prong of the Strickland standard,

Strickland, 466 U.S. at 700, and therefore no evidentiary hearing was required,

see State v. O'Donnell, 435 N.J. Super. 351, 370 (App. Div. 2014) ("To obtain

an evidentiary hearing on a PCR petition, a defendant must establish a prima

facie case for relief, material issues of disputed fact, and show that an

evidentiary hearing is necessary to resolve the claims.").

      Defendant also claims that the court erred by finding he was not entitled

to withdraw his plea. We analyze defendant's request to withdraw his guilty

plea differently than his petition for PCR. "The two requests for relief are

distinct, and governed by different rules of court. Compare R. 3:21-1 (motion

to withdraw plea), with R. 3:22 (PCR). They must be considered separately."

O'Donnell, 435 N.J. Super. at 368.

      "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." R. 3:21-1; see also Slater, 198 N.J. at 156 (explaining that

a defendant seeking to withdraw a plea following sentencing "must show [his or

her] conviction was manifestly unjust"). A defendant's burden of proof in a

motion to withdraw a guilty plea increases the longer the delay in bringing the

motion because "the court weighs more heavily the State's interest in finality


                                                                         A-0933-17T4
                                      13
and applies a more stringent standard." O'Donnell, 435 N.J. Super. at 370

(quoting State v. Norman, 405 N.J. Super. 149, 160 (App. Div. 2009)). "[T]he

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." Id. at 372 (quoting State v. Simon,

161 N.J. 416, 444 (1999)).

      "Consideration of a plea withdrawal request can and should begin with

proof that before accepting the plea, the trial court followed the dictates of Rule

3:9-2." Slater, 198 N.J. at 155. The Rule requires the court to determine if

"there is a factual basis for the plea and that the plea is made voluntarily, not as

a result of any threats or of any promises or inducements not disclosed on the

record, and with an understanding of the nature of the charge and the

consequences of the plea." Ibid. (quoting R. 3:9-2). The analysis of a plea

withdrawal application, however, "cannot end there." Ibid. "To evaluate a plea

withdrawal motion thoroughly and properly, other pertinent issues must be

considered in the context of the specific facts of a case" and "the competing

interests of the State and the defendant." Ibid.

      Defendant claims his 1999 plea violated Rule 3:9-2 because his attorney's

failure to advise him about the immigration consequences of his plea deprived


                                                                            A-0933-17T4
                                        14
him of the "understanding of the . . . consequences of the plea" required by the

Rule. At the time defendant pleaded guilty in 1999, the law required only that

a defendant be informed of the penal consequences of a plea agreement, and

immigration consequences of a plea were considered "collateral" and not penal

consequences of a plea. In State v. Garcia, a case decided two months before

defendant's 1999 plea, we explained that the "law remains unchanged" that

"[j]udges need not advise defendants of any collateral consequences that may

ensue from a guilty plea," including deportation consequences. 320 N.J. Super.

332, 337 (App. Div. 1999); see also State v. Heitzman, 107 N.J. 603, 604 (1987)

(holding that a "defendant need be informed only of the penal consequences of

his plea and not the collateral consequences, such as . . . effect on immigration

status"). Thus, the alleged failure to inform defendant of the immigration

consequences of his plea did not render his plea involuntary under Rule 3:9-2

based on the law applicable when defendant pleaded in 1999. See Garcia, 320

N.J. Super. at 337; State v. Reid, 148 N.J. Super. 263 (App. Div. 1977) (vacating

an order granting defendant's petition to withdraw a guilty plea based on his lack

of understanding of its immigration consequences); see also Chaidez v. United

States, 568 U.S. 342, 347 (2013) (finding the holding in Padilla, 559 U.S. at 367,

that counsel have an affirmative duty to address the immigration consequences


                                                                          A-0933-17T4
                                       15
of a criminal proceeding with a defendant, does not apply retroactively); Gaitan,

209 N.J. at 373 (same).

      Although defendant's PCR petition, certification and brief before the trial

court include the conclusory assertion that his plea counsel provided misadvice

concerning the immigration consequences of his plea, he failed to provide any

facts establishing that his plea counsel actually provided misadvice, including

during the review and completion of the plea form. To the contrary, defendant's

petition and certification include only the repeated assertion that plea counsel

failed to inform defendant about the immigration consequences of his plea. We

therefore do not consider defendant's contention, made for the first time in his

appellate brief, that the "not applicable" response to Question 17 on the plea

form demonstrates his plea counsel misinformed him about the immigration

consequences. The claim was not made before the motion court. See State v.

Robinson, 200 N.J. 1, 20 (2009) (explaining "appellate courts will decline to

consider questions or issues not properly presented to the trial court when an

opportunity for such a presentation is available unless the questions . . . raised

on appeal go to . . . jurisdiction . . . or concern matters of great public interest"

(quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973))). Moreover,

defendant does not mention or explain the completion of the form or his response


                                                                             A-0933-17T4
                                        16
to Question 17 in his petition or certification, and the assertions of counsel do

not constitute competent evidence demonstrating that plea counsel provided

misadvice. See Baldyga v. Oldman, 261 N.J. Super. 259, 265 (App. Div. 1993)

("The comments following [Rule 1:6-6] illustrate that its purpose is to . . .

eliminate the presentation of facts which are not of record by unsworn

statements of counsel made in briefs and oral arguments.").

      We are unpersuaded by defendant's contention that the court abused its

discretion in denying his request to withdraw his plea. The judge assessed

defendant's request under the four factors the Court in Slater determined must

be considered when deciding a motion to withdraw a plea: "(1) whether the

defendant has asserted a colorable claim of innocence; (2) the nature and

strength of defendant's reasons for withdrawal; (3) the existence of a plea

bargain; and (4) whether withdrawal would result in unfair prejudice to the State

or unfair advantage to the accused." Slater, 198 N.J. at 157-58.

      The record supports the court's finding of the first Slater factor. Defendant

failed to assert a colorable claim of innocence; defendant does not claim

innocence at all. Similarly, under the second Slater factor, defendant failed to

present "fair and just reasons for withdrawal" which "have any force." Id. at

159. He claims only that his counsel did not inform him of the immigration


                                                                           A-0933-17T4
                                       17
consequences of his plea, but his counsel had no duty to inform him about the

immigration consequences when defendant pleaded in 1999.

      Also, where, as here, a defendant alleges that acceptance of a plea bargain

was based on a lack of information, the court should "consider[] whether the

defendant reasonably would have made a different choice had the State

conveyed the missing . . . information." State v. O'Driscoll, 215 N.J. 461, 477

(2013). However, other than his bald assertion that he would not have pleaded

guilty if he had been aware of the immigration consequences, defendant does

not provide any facts showing it would have been reasonable for him to do so.

See, e.g., State v. Johnson, 182 N.J. 232, 244 (2005) ("[D]efendant must

demonstrate how the omission of information about NERA materially affected

his decision to plead guilty.").

      The third factor, "whether defendant's plea was part of a plea agreement,"

is "viewed in light of the other three factors." State v. Munroe, 210 N.J. 429,

447 (2012). Because "the vast majority of criminal cases are resolved through

plea bargains," this factor is given less weight than the other factors. Slater, 198

N.J. at 161. This factor, however, also weighed against defendant's request to

withdraw his guilty plea.




                                                                            A-0933-17T4
                                        18
      The fourth Slater factor requires that the court determine "whether the

State would have suffered unfair prejudice or defendant would have gained an

unfair advantage had the trial court granted withdrawal of the plea." Munroe,

210 N.J. at 447. The State bears the burden of establishing it will suffer unfair

prejudice only if defendant has offered sufficient proof of the other factors

supporting withdrawal. See Slater, 198 N.J. at 162.        Here, defendant fails to

present any proof supporting his withdrawal request under Slater's first three

facts and therefore the "State is not required to show prejudice." Ibid.

      In sum, each of the Slater factors weighs against the granting of

defendant's request to withdraw his guilty plea. We find no basis to conclude

that denial of the motion resulted a manifest injustice, R. 3:21-1, or that the court

abused its discretion by rejecting defendant's withdrawal request.

      Affirmed.




                                                                             A-0933-17T4
                                        19
