                        NOT FOR PUBLICATION WITHOUT THE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-5153-14T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

RAMON ALATORRE,

        Defendant-Appellant.

___________________________________

              Argued October 19, 2016 – Decided October 25, 2017

              Before Judges Fuentes, Simonelli and Carroll.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment No.
              10-10-1812.

              Michael Noriega argued the cause for appellant
              (Bramnick, Rodriguez, Grabas, Arnold & Mangan,
              LLC, attorneys; Mr. Noriega, of counsel and
              on the brief).

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

        The opinion of the court was delivered by

FUENTES, P.J.A.D.
     Defendant   Ramon   Alatorre    appeals    from   the   order    of   the

Criminal Part denying his post-conviction relief (PCR) petition.

We affirm.

     In   October    2010,   a   Hudson    County    grand   jury    returned

Indictment No. 10-10-1812 against defendant charging him with two

counts of second degree aggravated assault by attempting to cause

or purposely or knowingly cause serious bodily injury to the

victim,   N.J.S.A.    2C:12-1(b)(1);      N.J.S.A.   2C:11-1(b),     and   two

counts of third degree aggravated assault by attempting to cause

or causing significant bodily injury to the victim, N.J.S.A. 2C:12-

1(b)(7); N.J.S.A. 2C:11-1(d).        On January 11, 2011, the Hudson

County Prosecutor rejected defendant’s application for admission

into the Pretrial Intervention Program (PTI) based on the factors

listed in N.J.S.A. 2C:43-12(e) and Rule 3:28, including that he

entered "the United States in 2001 and provided no documentation

of his status in this country."

     On February 3, 2011, defendant entered into a negotiated

agreement with the State through which he agreed to plead guilty

to one count of third degree aggravated assault under N.J.S.A.

2C:12-1(b)(7).      In exchange, the State agreed to recommend that

the court sentence defendant to a term of imprisonment not to

exceed three years.      Defendant was free to argue that the court



                                     2                                A-5153-14T2
impose   a   non-custodial     term    of    probation.        Defendant     was

represented by private counsel at the time.

     At his request, the court provided defendant with a certified

Spanish language interpreter at the plea hearing.              In response to

the judge's question, defendant stated under oath that he was born

in 1984, making him twenty-six years old at the time.                        His

educational background included completing one year of college.

The judge questioned defendant directly and reviewed with him the

constitutional rights he was agreeing to waive as part of the plea

agreement.      Defendant   answered       all   of   the   judge's   questions

responsively.     He also specifically stated that he had read and

reviewed the plea form with his attorney and had signed the form

voluntarily.

     The plea form defendant signed included question 17, which

asked the following questions:

"Questions 17(a):  Are you a citizen of the United
States? [Yes] [No]"

Defendant      circled   the     box        indicating      "[No]."

"Question 17(b): 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] [No]"

Defendant circled the box indicating "[Yes]."

"Question 17(c): Do you understand that if your plea of
guilty is to a crime considered an "aggravated felony"
under   Federal   law   you    will   be   subject   to
deportation/removal? [Yes] [No]"

                                       3                                A-5153-14T2
Defendant circled the box indicating "[Yes]."

"Question 17(d): Do you understand that you have the
right to seek legal advice on your immigration status
prior to entering a plea of guilty? [Yes] [No]"

Defendant circled the box indicating "[Yes]."

    Defendant   then   provided   the   following   factual   basis    in

support of his guilty plea:

         DEFENSE COUNSEL: Mr. Alatorre, on July 4,
         2010, were you in the City of Union City in
         the County of Hudson?

         DEFENDANT: Yes.

         DEFENSE COUNSEL: And on that date you were
         with a Mr. Louis Dominguez (phonetic)?

         DEFENDANT:    Yes.

         DEFENSE COUNSEL: And on that date did Mr.
         Louis Dominguez strike you?

         DEFENDANT: Yes.

         DEFENSE COUNSEL: Okay, now after Mr. Dominguez
         stroke [sic] you first, did you hit Mr.
         Dominguez?

         DEFENDANT: Yes.

         . . . .

         DEFENSE COUNSEL: I have no further questions.

         . . . .

         PROSECUTOR: Judge . . . my only question is
         based on that factual basis is counsel waiving
         any claim of self[-]defense?


                                  4                             A-5153-14T2
            DEFENSE COUNSEL: We . . . are waiving [any]
            claim of self[-]defense, Judge. Just at the
            time of sentencing[.]    [W]e will . . . be
            arguing that . . . is a mitigating factor as
            to how this altercation started, Judge.

            THE COURT: So, the offense is based on the
            fact that after Mr. Dominguez, the victim,
            fell to the floor, it was after that that Mr.
            Alatorre continued to strike him?

            DEFENSE COUNSEL: Correct, Judge.

            THE COURT: Mr. Alatorre, is that in fact what
            happened, sir?

            DEFENDANT: Yes.

     On March 25, 2011, defendant appeared before the court for

sentencing. Before imposing sentence, the judge made the following

statement:

            I note for the record that Mr. Alatorre has
            been in the United States ten years, he is 26
            now and apparently during that time there has
            been no incident that has brought him before
            a criminal court.     So I'm going to find
            aggravating factor 9. I also find mitigating
            factors [N.J.S.A. 2C:44-1b] 7 and 10.     The
            mitigating factors outweigh the aggravating
            factors.

The judge sentenced defendant to a noncustodial term of probation

of two years, conditioned upon a substance abuse evaluation, and

compliance with any requirements or recommendations made by the

evaluator. The judge also required that defendant remain gainfully

employed and "provide proof" he was employed "to the Probation

Officer."

                                  5                         A-5153-14T2
     On December 19, 2014, more than one year after his two-year

term of probation had ended, defendant filed a         PCR petition

alleging ineffective assistance of counsel based on his attorney's

failure "to investigate whether this particular charge would be

treated as [a] removable offense pursuant to any other immigration

laws."    Defendant also claimed that his attorney advised him "that

because he was pleading to a [t]hird [d]egree offense, and only

receiving probation, he would not face deportation consequences."

Defendant noted in his petition that his criminal case "arose" one

year after the United States Supreme Court’s decision in Padilla

v. Kentucky, 559 U.S.     356, 130 S. Ct. 1473, 176 L. Ed. 2d 284

(2010).    As was the case at the time he pled guilty, defendant

filed this PCR petition represented by private counsel, although

obviously by a different attorney.

     On April 17, 2015, defendant’s PCR petition came for oral

argument before Judge Lourdes I. Santiago.     In the course of her

interaction with PCR counsel, Judge Santiago noted that defendant

did not allege that he was facing imminent deportation as a

consequence of his conviction, or that any kind of immigration

enforcement action had begun in connection with his conviction.

The PCR petition merely averred that he was "presently removable

from the country." Judge Santiago thus emphasized that independent

of the criminal conviction, defendant "was inadmissible by . . .

                                  6                          A-5153-14T2
virtue of his existence in the United States."              Judge Santiago

reserved decision at the conclusion of oral argument. In a letter-

opinion dated May 29, 2015, Judge Santiago described at length the

procedural history of the case and explained the legal basis for

denying defendant’s PCR petition.      Judge Santiago explained:

          At the time of the plea, the Petitioner was
          undocumented and hence removable from the
          United States. Any future rights to legalize
          his status in the United States would be
          subject to his meeting admissibility criteria
          under the [Immigrations and Naturalization
          Act].

                . . . .

          By virtue of Question 17(b) on the plea form,
          and by virtue of the dialogue between [the
          plea Judge] and the Petitioner, it is without
          a doubt that Petitioner was advised that his
          guilty    plea    may    carry    immigration
          consequences.    The Petitioner was further
          advised that he had the right to seek legal
          advice on his immigration consequences prior
          to entering the plea.

     Applying   the   standards   established    by   the   United    States

Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.

Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our

Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), Judge

Santiago concluded defendant did not make out a prima facie case

of ineffective assistance of counsel.     Consequently, defendant was

not entitled to an evidentiary hearing.         State v.     Preciose, 129



                                   7                                 A-5153-14T2
N.J. 451, 462-63 (1992); R. 3:22-10.              Judge Santiago issued an

order dated May 29, 2015 memorializing her ruling.

     Against   this   record      defendant      now   appeals   raising    the

following arguments:

          POINT I

          THE LOWER COURT ERRED IN DENYING DEFENDANT'S
          REQUEST FOR AN EVIDENTIARY HEARING WHERE
          DEFENDANT SET FORTH A PRIMA FACIE CASE THAT
          COUNSEL PROVIDED INCORRECT ADVICE CONCERNING
          HIS IMMIGRATION CONSEQUENCES.

          POINT II

          DEFENDANT'S   ATTORNEY  WAS   CONSITUTIONALLY
          [SIC] DEFICIENT, WHERE HE PROVIDED ERRONEOUS
          ADVICE CONCERNING DEFENDANT'S IMMIGRATION
          CONSEQUENCES AND DEFENDANT WOULD NOT HAVE
          PLEAD GUILTY BUT FOR SUCH ADVICE.

                A. COUNSEL WAS CONSTITUTIONALLY
                DEFICIENT BY INCORRECTLY ADVISING
                DEFENDANT ABOUT THE APPLICABILITY
                OF THE AGGRAVATED FELONY PROVISION.

                B. DEFENDANT'S DECISION TO PLEAD
                GUILTY WOULD HAVE BEEN DIFFERENT BUT
                FOR TRIAL COUNSEL'S CONSITUTIONAL
                [SIC] DEFICIENCY.

     We reject these arguments and affirm substantially for the

reasons expressed by Judge Santiago in her letter-opinion.                We add

only the following brief comments.               Pursuant to the standards

established    by   the   Court    in       Strickland,   a   defendant    must

demonstrate that defense counsel's performance was deficient.

Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed.

                                        8                             A-5153-14T2
2d   at   693.   Second,   he    must   show   there    exists   "a   reasonable

probability that, but for counsel's unprofessional errors, the

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

104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

      In determining a claim of ineffective assistance of counsel

in a case in which a defendant pled guilty, "the issue is whether

it is ineffective assistance of counsel for counsel to provide

misleading, material information that results in an uninformed

plea, and whether that occurred here."           State v. Nunez-Valdez, 200

N.J. 129, 139-40 (2009).            Here, the record is devoid of any

indication that defendant would have rejected the terms of the

plea agreement if his trial attorney had apprised him that, as an

undocumented alien, he was subject to deportation as a consequence

of   this   conviction.         Furthermore,    as     Judge   Santiago    noted,

defendant has not demonstrated any prejudice caused by counsel’s

alleged deficiencies.

      Affirmed.




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