                                NOT FOR PUBLICATION WITHOUT THE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-2219-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

EDWIN ROSARIO,

     Defendant-Appellant.
__________________________

                    Submitted December 18, 2018 – Decided January 11, 2019

                    Before Judges Rothstadt and Gilson.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment No. 14-05-0796.

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

                    Esther Suarez, Hudson County Prosecutor, attorney for
                    respondent (Erin M. Campbell, Assistant Prosecutor,
                    on the brief).

PER CURIAM
      Defendant Edwin Rosario appeals from a March 10, 2017 order denying

his petition for post-conviction relief (PCR) after oral argument, but without an

evidentiary hearing. Defendant contends that his counsel was ineffective in

misleading him about the immigration consequences of his plea and he should

be permitted to withdraw his plea of guilt. The record, however, establishes that

defendant was advised of the immigration consequences of his plea and,

therefore, we affirm.

                                       I.

      In April 2014, defendant was indicted for seven crimes related to his

possession and intention to distribute cocaine and marijuana. Those charges

included two second-degree offenses, four third-degree offenses, and one

fourth-degree offense.

      In October 2014, defendant pled guilty to third-degree possession of

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

2C:35-7. Before giving that plea, defendant reviewed, completed, and signed a

plea form. In response to question seventeen of that form, defendant stated that

he was not a United States citizen, acknowledged that he had the right to consult

with an immigration attorney, waived that right, and acknowledged that he

understood that he could be removed from the United States if he pled guilty.


                                                                         A-2219-17T1
                                       2
      At the plea hearing, defendant informed the court that he was not a United

States citizen. Defendant initially stated that he had not consulted with an

immigration attorney, but when the court stated that it would adjourn the

hearing, defendant testified that he had spoken to another immigration attorney.

Defendant also testified that he had been advised that his guilty plea might result

in his deportation from the United States, prevent him from becoming a United

States citizen, and prevent him from re-entering the United States. In that

regard, defendant had the following exchange with the judge:

            THE COURT:         Are you a U.S. citizen?

            THE DEFENDANT:            No.

            THE COURT:        Okay. Have you had an opportunity
            to speak with an immigration attorney?

            THE DEFENDANT:            Not really.

            THE COURT:       Okay. We [will] adjourn this so that
            you could speak with an immigration attorney.

            THE DEFENDANT:            I did, he was on vacation.

            THE COURT:        So you didn't speak to any other
            immigration attorney?

            THE DEFENDANT:            I spoke to another one.

            THE COURT:         So is it not really or you spoke to
            someone - -


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                                        3
            THE DEFENDANT:           Yes.

            THE COURT:         - - else?

            THE DEFENDANT:           Yes, I did.

            THE COURT:        Okay. And did he answer all of your
            questions with regards to your immigration status?

            THE DEFENDANT:           Yes.

            THE COURT:        Did he explain to you, sir, that this
            charge could result in your deportation?

            THE DEFENDANT:           Yes.

            THE COURT:        Not only could it result in your
            deportation, it could affect your ability to apply for
            immigration and naturalization as a U.S. citizen in this
            country.

            THE DEFENDANT:           Yes.

            THE COURT:         Additionally, if you are deported it
            could affect your ability to get back into the [country].

            THE DEFENDANT:           Yes.

            THE COURT:         And understanding that, you still
            wish to plead guilty today?

            THE DEFENDANT:           Yes.

Following that exchange, the judge confirmed with defendant that (1) he had

reviewed the plea form with his attorney, (2) he had understood all the questions



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                                           4
and answers on the form, (3) his attorney had answered all of his questions, and

(4) his answers were truthful.

      Defendant then testified to the factual basis for his plea. In that regard,

he testified that on October 30, 2013, he was in Union City, he possessed cocaine

with the intent to distribute it, and he was within 1000 feet of a school. Based

on defendant's testimony, the court found there was an adequate factual basis

for the plea and defendant had pled guilty "freely and voluntarily with the full

knowledge and consequences of his actions." Thus, the court accepted

defendant's plea of guilt.

      In November 2014, defendant was sentenced to five years of probation

with the condition that he participate in drug court. That sentence was in

accordance with defendant's plea agreement, which had provided that he would

be sentenced either to four years in prison or drug court.

      In August 2016, defendant filed a petition for PCR. He certified that his

counsel was ineffective for misadvising him about the deportation consequences

of his plea. He also moved to withdraw his plea. Thereafter, defendant was

assigned PCR counsel and the PCR court heard oral arguments. On March 10,

2017, the court entered an order denying defendant's petition for PCR.




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                                        5
                                        II.

      On this appeal, defendant argues:

            MR.   ROSARIO    IS  ENTITLED   TO  AN
            EVIDENTIARY HEARING ON HIS CLAIM THAT
            HIS ATTORNEY RENDERED INEFFECTIVE
            ASSISTANCE      OF     COUNSEL     FOR
            AFFIRMATIVELY MISADVISING HIM ABOUT
            THE DEPORTATION CONSEQUENCES OF HIS
            PLEA AND ON HIS CLAIM THAT HE SHOULD BE
            ALLOWED TO WITHDRAW HIS PLEA.

      Defendant's petition arises from the application of Rule 3:22, which

permits collateral attack of a conviction based upon a claim of ineffective

assistance of counsel within five years of the conviction. See R. 3:22-2(a); R.

3:22-12(a)(1); see also Strickland v. Washington, 466 U.S. 668, 687 (1984);

State v. Fritz, 105 N.J. 42, 58 (1987). To establish a claim of ineffective

assistance of counsel, a defendant must satisfy the two-part Strickland test: (1)

"counsel made errors so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment," and (2) "the deficient

performance prejudiced the defense." Strickland, 466 U.S. at 687; Fritz, 105

N.J. at 58 (adopting the Strickland two-part test in New Jersey).

      On petitions brought by a defendant who has entered a guilty plea, the

defendant satisfies the first Strickland prong if he or she can show that counsel's

representation fell short of the prevailing norms of the legal community. Padilla

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                                        6
v. Kentucky, 559 U.S. 356, 366-67 (2010). The defendant proves the second

component of Strickland by establishing "a reasonable probability that" the

defendant "would not have pled guilty," but for counsel's errors. State v. Gaitan,

209 N.J. 339, 351 (2012) (quoting State v. Nunez-Valdez, 200 N.J. 129, 139

(2009)).

      In cases involving noncitizen defendants, "a defendant can show

ineffective assistance of counsel by proving that his [or her] guilty plea resulted

from 'inaccurate information from counsel concerning the deportation

consequences of his [or her] plea.'" State v. Brewster, 429 N.J. Super. 387, 392

(App. Div. 2013) (quoting Nunez-Valdez, 200 N.J. at 143). Counsel's duty

encompasses informing a defendant who had entered a guilty plea of the relevant

mandatory deportation law if it is "succinct, clear, and explicit." Padilla, 559

U.S. at 368. Counsel's "failure to advise a noncitizen client that a guilty plea

will lead to mandatory deportation deprives the client of the effective assistance

of counsel guaranteed by the Sixth Amendment." State v. Barros, 425 N.J.

Super. 329, 330 (App. Div. 2012) (citing Padilla, 559 U.S. at 368-69).

      Applying these principles and using a de novo standard of review, see

State v. Harris, 181 N.J. 391, 420-21 (2004), we affirm the denial of defendant's

petition for PCR. The record amply demonstrates that defendant was fully aware


                                                                           A-2219-17T1
                                        7
of the immigration consequences of his guilty plea. In both his plea form and at

the plea hearing, defendant confirmed that he had the right to consult with an

immigration attorney and that he understood that by pleading guilty he may be

deported and face other immigration consequences. Accordingly, there is no

showing that defendant was not properly advised of the immigration

consequences of his plea. See Padilla, 559 U.S. at 365-66; Gaitan, 209 N.J. at

380; Nunez-Valdez, 200 N.J. at 139-40; Brewster, 429 N.J. Super. at 393.

      Defendant has also made no showing that it would have been rational for

him to reject the plea bargain. See Padilla, 559 U.S. at 372. See also State v.

DiFrisco, 137 N.J. 434, 457 (1994) (a defendant must show a "reasonable

probability" that, absent the incompetent representation, he or she "would not

have pled guilty and would have insisted on going to trial" (quoting Hill v.

Lockhart, 474 U.S. 52, 59 (1985))). Here, defendant was facing two second-

degree charges, three other third-degree charges, and a fourth-degree charge.

He has shown no reasonable probability that he would have rejected the

opportunity to participate in five years of probation in drug court and gone to

trial where he faced the possibility of receiving a sentence of ten years in prison.

Indeed, as the PCR court noted, defendant's petition asserted he pled guilty

because he was "given the option of probation instead of prison time."


                                                                            A-2219-17T1
                                         8
      There was also no showing that required an evidentiary hearing on

defendant's PCR petition. A PCR judge should only grant an evidentiary hearing

"if a defendant has presented a prima facie claim in support of post-conviction

relief." State v. Preciose, 129 N.J. 451, 462 (1992). To establish a prima facie

case, "a defendant must demonstrate the reasonable likelihood of succeeding

under the test set forth" in Strickland. Id. at 463. A defendant "must do more

than make bald assertions that he [or she] was denied the effective assistance of

counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). "He

[or she] must allege facts sufficient to demonstrate counsel's alleged substandard

performance." Ibid.

      Finally, defendant did not establish any of the factors that are required for

the withdrawal of a guilty plea. Those factors are "(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."      State v. Slater, 198 N.J. 145, 157-58 (2009).

Defendant does not contend that he is innocent of the crime to which he pled

guilty. Instead, he argues that he only pled guilty based on his trial counsel's

misadvise about the immigration consequences of his plea. As we have already


                                                                           A-2219-17T1
                                        9
found that the record does not support that claim, the first factor under Slater

has not been satisfied. Moreover, none of the other Slater factors support

defendant's arguments to withdraw his guilty plea. The nature and strength of

defendant's reasons for withdrawal are rebutted by the record. There was a plea

agreement, which was very favorable to defendant. Finally, given the passage

of time, allowing the withdrawal would result in unfair prejudice to the State.

      Affirmed.




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