                                NOT FOR PUBLICATION WITHOUT THE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-3293-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ISMAEL IGLESIAS-MONTIEL,

     Defendant-Appellant.
__________________________

                    Submitted June 4, 2019 – Decided July 10, 2019

                    Before Judges Fasciale and Gooden Brown.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Passaic County, Accusation No. 05-06-0746.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Daniel S. Rockoff, Assistant Deputy Public
                    Defender, of counsel and 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 appeals from the January 11, 2018 Law Division order, denying

his second petition for post-conviction relief. Defendant, a non-citizen, argues

the PCR court erred in determining without an evidentiary hearing that he failed

to establish a prima facie case of ineffective assistance of counsel under State v.

Nunez-Valdez, 200 N.J. 129 (2009), and that his petition was time barred and

not exempted from Rule 3:22-12's limitations. We disagree and affirm.

      We derive the following facts from the record.          On June 22, 2005,

defendant entered a negotiated guilty plea to a one-count accusation, charging

him with third-degree distribution of a controlled dangerous substance (CDS)

within 1000 feet of a school zone, N.J.S.A. 2C:35-7. At the plea hearing,

defendant admitted that on April 12, 2005, he sold less than fifty grams of

marijuana to an undercover officer within 1000 feet of public school number six

in the City of Passaic. On the written plea form, defendant responded "yes" to

question seventeen, indicating he understood that "if [he was] not a United States

citizen or national, [he] may be deported by virtue of [his] plea of guilty[.]"

      During the plea colloquy, defendant further confirmed his understanding

in response to the trial court's questioning as follows:

            [COURT:] Where were you born?

            [DEFENDANT:] Mexico.


                                                                           A-3293-17T3
                                        2
                  ....

            [COURT:] Are you legally in this country?

            [DEFENDANT:] Yes.

            [COURT:] Are you a naturalized citizen or do you have
            an alien registration card?

            [DEFENDANT:] Well, I have permission to work.

                  ....

            [COURT:] Do you understand that you could get
            deported for this?

            [DEFENDANT:] Yes.

            [COURT:] Do you understand that?

            [DEFENDANT:] Yes.

      Further, defendant told the court that he was pleading guilty voluntarily,

he read and understood the plea form before he signed it, and he was satisfied

with the services of his attorney. After pleading guilty, defendant waived a

presentence report and was sentenced on the same day.         Despite his prior

municipal court convictions for possession of marijuana and simple assault ,

defendant was sentenced in accordance with the plea agreement to three years'

probation, conditioned upon serving 270 days in the county jail . Defendant did




                                                                        A-3293-17T3
                                       3
not appeal his conviction or sentence and incurred no new criminal charges

thereafter.

      Eleven years later, defendant received a Notice to Appear before an

immigration judge for "removal proceedings under section 240 of the

Immigration and Nationality Act[.]" The Notice was dated July 6, 2016. On

October 17, 2016, defendant filed his first PCR petition, seeking to withdraw

his guilty plea and asserting his plea counsel was ineffective by failing to

provide him with immigration advice.1 Defendant explained he did not file his

petition within five years of his conviction, as required under Rule 3:22-12,

because he was unaware that he was deprived of his right to speak to an

immigration attorney before pleading guilty until he was arrested by

immigration authorities on July 6, 2016.

      On May 3, 2017, following oral argument, the PCR court rejected

defendant's contentions on both procedural and substantive grounds. In an oral

decision, the court determined that because defendant was "on notice" when he

entered his plea "that he could be deported," defendant failed to establish either

"excusable neglect or that enforcement of the time bar would result in a



1
  Because defendant did not include the first petition in the record, we rely on
the PCR court's description of its contents.
                                                                          A-3293-17T3
                                        4
fundamental injustice" to overcome Rule 3:22-12's limitations. Further, the

court found that because plea counsel did not "give incorrect advice . . . about

the immigration consequences of his plea[,]" defendant did "not satisf[y] the

first prong of the [Strickland v. Washington, 466 U.S. 668 (1984),2] test."

      In that regard, the court rejected defendant's reliance on Padilla v.

Kentucky, 559 U.S. 356 (2010), explaining that under State v. Gaitan, 209 N.J.

339 (2012), the imposition of an affirmative duty to advise on deportation

consequences decreed in Padilla did not apply retroactively to defendant's 2005

conviction. The court also determined that Nunez-Valdez was inapplicable

because defendant claimed plea counsel provided no advice, rather than the

incorrect advice about deportation consequences outlawed under Nunez-Valdez.

See 200 N.J. at 139-42. Thus, according to the court, defendant failed to present

"a prima facie claim of ineffective assistance of counsel" entitling him to the

relief sought.

      Additionally, after evaluating defendant's motion to withdraw his guilty

plea under the four factors enunciated in State v. Slater, 198 N.J. 145, 157-58


2
   To prevail on a claim of ineffective assistance of counsel (IAC), a defendant
must satisfy a two-part test. Specifically, the defendant must show that his
attorney's performance was deficient and that the "deficient performance
prejudiced the defense." Strickland, 466 U.S. at 687. See State v. Fritz, 105
N.J. 42, 49-53 (1987) (adopting the Strickland two-part test for IAC claims).
                                                                         A-3293-17T3
                                       5
(2009), the court found no "manifest injustice" as required under Rule 3:21-1 to

justify granting the motion.       On the contrary, according to the court,

"[d]efendant ha[d] not asserted any [colorable] claim of . . . innocence[,]" his

"reason for withdrawal" was "without merit[,]" the guilty plea was the product

of a "plea bargain," and the State would be "unfair[ly] prejudice[d]" if it had "to

investigate and try a [twelve-]year[-]old case."

      In July 2017, defendant filed a second petition for PCR, seeking to

withdraw his guilty plea because his plea and first PCR counsel were ineffective.

According to defendant, his plea counsel was ineffective "by advising [him] that

he would not be deported as a result of th[e] small amount of marijuana" and

"by not consulting with an immigration attorney." Defendant claimed his plea

counsel was also ineffective by failing to file appropriate pre-trial motions and

compel discovery. Additionally, defendant asserted his first PCR counsel was

ineffective by failing to make appropriate "inquiry as to what [plea counsel] did

and said to defendant" and by applying "the wrong standard" for ineffective

assistance of counsel claims involving incorrect advice on immigration

consequences.

      In support, contrary to his first PCR petition, defendant certified that when

he asked about the deportation consequences of a guilty plea, his plea counsel


                                                                           A-3293-17T3
                                        6
informed him "that immigration would do nothing to [him] because the amount

of pot was so small[, amounting to] . . . only one gram." Defendant averred

"[he] was very concerned about [his] immigration status" because he "had a wife

and a child" and "would [never] have pled guilty" had he known that his pl ea

counsel's "advice was incorrect." According to defendant, "[he] would rather

spend time in jail versus a lifetime in Mexico." Defendant also submitted

supporting certifications from family members, including his wife, who was a

United States citizen.

      In addition, defendant submitted a certification prepared by his plea

counsel stating:

            If . . . defendant had inquired as to the immigration
            consequences of this plea, I would have advised [him]
            that he would not be deported as a result of this
            distribution of a small amount of marijuana. This is
            based upon the fact that foreign nationals convicted of
            similar drug offenses in 2005 were NOT BEING
            DEPORTED. I knew of foreign nationals convicted of
            murder and armed robbery being deported but not for
            this type of "relatively minor" marijuana offense.

      On January 11, 2018, following oral argument, the PCR court denied the

application on procedural and substantive grounds without conducting an

evidentiary hearing. In an oral decision, the judge determined that the second

petition was time barred under Rule 3:22-4(b) and Rule 3:22-12(a)(2). Turning


                                                                       A-3293-17T3
                                      7
to the merits, according to the court, "[plea counsel's] advice was based on his

experience in handling . . . similar minor drug distribution cases in 2005." Thus,

the court did not view plea counsel's statement in his certification as

"misadvice."

       The court elaborated that rather than giving defendant "inaccurate

information . . . concerning the deportation consequences of his plea[,]"

             [plea counsel] advised him that he would not be
             deported as a result of [the] distribution of a small
             amount of marijuana because[,] in 2005[,] foreign
             nationals were not being deported for similar drug
             offenses. In 2005[,] deportation was not a serious issue.
             While distribution of CDS was deportable under
             Federal law, in practice[,] defendants were not being
             deported for minor marijuana offenses.

       The court continued:

             [Plea counsel] practiced law in the manner that . . . other
             attorneys did at th[at] time. Defendant was not arrested
             by ICE[3] until July 6[], 2016, which is [eleven] years
             after he pled guilty. This in itself lends credence to the
             fact that the Federal government was simply not
             deporting people as a practical matter.

Moreover, according to the court, defendant was on notice of deportation

consequences based on the fact that "[d]efendant answered yes to [q]uestion . . .

[seventeen] on the plea form," and was advised by the court during the plea


3
    Immigration and Customs Enforcement.
                                                                            A-3293-17T3
                                         8
colloquy that he "could get deported." Thus, similar to the first PCR, the court

again concluded that defendant failed to satisfy the first prong of Strickland.

      Addressing the second Strickland prong, the court was unpersuaded that

but for plea counsel's advice, defendant would not have pled guilty. In that

regard, the court explained:

                  Defendant sol[d] marijuana to an undercover
            detective. And if convicted at trial would have . . . been
            subjected to a maximum sentence of five years in prison
            with the imposition of a minimum term of between . . .
            [one-]half to one[-]third of the sentence imposed, or
            one year, whichever was greater.

                  The offer made to defendant at the pre-indictment
            court was probation with 270 days in the Passaic
            County Jail[,] concurrent to a violation of probation
            that might have been filed in the future. The transcript
            indicates during sentencing defendant was concerned
            with getting out of jail early so that he could spend more
            time with his daughter. . . .

                   Defendant was concerned with minimizing his
            jail exposure. The bare assertion . . . that he would not
            have pled guilty if made aware of the proper
            consequences of pleading guilty is not convincing.

                 The State had a strong case against defendant.
            And he received a favorable plea offer.

After rejecting defendant's remaining IAC claims, and incorporating the reasons

set forth on the record in its May 3, 2017 decision, the court entered a

memorializing order and this appeal followed.

                                                                          A-3293-17T3
                                        9
      On appeal, defendant raises the following single point for our

consideration:

            BECAUSE DEFENDANT PRESENTED A [PRIMA
            FACIE] CASE THAT HE WAS PREJUDICED BY
            FALSE ADVICE FROM HIS PLEA COUNSEL, THE
            LAW DIVISION'S ORDER DENYING HIS PCR
            PETITION   WITHOUT    AN    EVIDENTIARY
            HEARING SHOULD BE REVERSED.

      Merely raising a claim for PCR does not entitle the defendant to an

evidentiary hearing. See State v. Cummings, 321 N.J. Super. 154, 170 (App.

Div. 1999). Rather, trial courts should grant evidentiary hearings and make a

determination on the merits only if the defendant has presented a prima facie

claim of IAC, material issues of disputed fact lie outside the record, and

resolution of those issues necessitates a hearing. R. 3:22-10(b); State v. Porter,

216 N.J. 343, 355 (2013). A PCR court deciding whether to grant an evidentiary

hearing "should view the facts in the light most favorable to a defendant." State

v. Preciose, 129 N.J. 451, 463 (1992). In turn, we review under the abuse of

discretion standard the PCR court's determination to proceed without an

evidentiary hearing. State v. Marshall, 148 N.J. 89, 157 (1997); see also R.

3:22-10; Preciose, 129 N.J. at 462.

      To establish a prima facie case of IAC to set aside a guilty plea, "a

defendant must show that (i) counsel's assistance was not 'within the range of

                                                                          A-3293-17T3
                                       10
competence demanded of attorneys in criminal cases'; and (ii) 'that there is a

reasonable probability that, but for counsel's errors, [the defendant] would not

have pled guilty and would have insisted on going to trial.'" Nunez-Valdez, 200

N.J. at 139 (alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457

(1994)). In other words, the defendant must show that not pleading guilty would

have been "rational under the circumstances." State v. O'Donnell, 435 N.J.

Super. 351, 371 (App. Div. 2014) (quoting Padilla, 559 U.S. at 372).

      Because there is a strong presumption that counsel "rendered adequate

assistance and made all significant decisions in the exercise of reasonable

professional judgment[,]" Strickland, 466 U.S. at 690, defendant bears the

burden of proving both prongs of an IAC claim by a preponderance of the

evidence. Gaitan, 209 N.J. at 350. Further, because prejudice is not presumed,

Fritz, 105 N.J. at 52, the defendant must demonstrate "how specific errors of

counsel undermined the reliability" of the proceeding. United States v. Cronic,

466 U.S. 648, 659 n.26 (1984).

      Here, defendant asserts that plea "[c]ounsel's inexcusably false advice that

the plea would not result in deportation induced [defendant] to accept a deal

which he otherwise would have rejected." According to defendant, "[p]lea

counsel's advice was affirmatively misleading and false, because deportation for


                                                                          A-3293-17T3
                                       11
the offense was 'inevitable' as a matter of federal law."       Thus, defendant

continues,   plea   counsel      rendered   "constitutionally   deficient"      legal

representation under Nunez-Valdez. We disagree.

      In Nunez-Valdez, our Supreme Court held that a defendant could establish

the deficiency prong of an IAC claim by proving that his guilty plea resulted

from "inaccurate information from counsel concerning the deportation

consequences of his plea." 200 N.J. at 143. The following year, in Padilla, the

United States Supreme Court held that defense counsel's incorrect advice as well

as counsel's failure to give any advice whatsoever about deportation constituted

deficient performance sufficient to establish a constitutional violation where the

relevant law pertaining to mandatory deportation is "succinct, clear, and

explicit." 559 U.S. at 368-69.

      In Gaitan, our Supreme Court held that because Padilla's imposition of an

affirmative duty to advise on deportation consequences was a new constitutional

rule, its holding applied prospectively only. Gaitan, 209 N.J. at 373. Accord

Chaidez v. United States, 568 U.S. 342, 357-58 (2013). On the other hand,

because Nunez-Valdez was not a new rule of constitutional law, IAC claims of

incorrect advice about deportation consequences            could be addressed




                                                                             A-3293-17T3
                                       12
retroactively on collateral review of past convictions. Gaitan, 209 N.J. at 375.

Therefore, while Padilla does not apply to this case, Nunez-Valdez does.

        Our holding in State v. Brewster, 429 N.J. Super. 387 (App. Div. 2013)

informs our analysis of the dispositive issue in this case. There, the defendant

Moses Brewster, a non-citizen, entered a negotiated guilty plea in 1998 to third-

degree possession of marijuana with intent to distribute in a school zone,

N.J.S.A. 2C:35-7, and was sentenced to probation with 364 days in the county

jail.   Id. at 390-91.   Although the judge did not specifically question the

defendant about the possibility of deportation at the plea hearing, the risk of

deportation was addressed in the written plea form defendant signed. Id. at 391.

Brewster did not file a direct appeal and served his sentence. Ibid. Almost

twelve years later, "[he] was arrested by federal authorities and detained . . . on

a complaint for deportation based on his [1998] conviction." Ibid. In 2010, he

filed a PCR petition, asserting his plea counsel was ineffective because when he

inquired about immigration, plea counsel told him "he did[ not] think there

would be any issue with immigration[.]" Id. at 391, 395.

        The trial court denied Brewster's petition on procedural and substantive

grounds, and we affirmed. Procedurally, we agreed with the trial court that the

petition was untimely under Rule 3:22-12(a)(1), and Brewster failed to show


                                                                           A-3293-17T3
                                       13
"excusable neglect for the late filing" or that "fundamental injustice" would

result if his claims were "not considered on their merits." Id. at 398-99. "Nor

did he file his petition within one year of the courts establishing a new

'constitutional right' or of his learning the 'factual predicate' that the conviction

would have adverse immigration and deportation consequences[,]" as required

under Rule 3:22-12(a)(2).4 Brewster, 429 N.J. Super. at 399.

      Addressing the merits, we explained:

                   First, unlike Nunez-Valdez, [200 N.J. at 141],
             defense counsel here did not assure defendant that he
             would not be deported. Rather, he allegedly stated he
             did not think deportation would be an issue and he
             would discuss the matter with the prosecutor.
             Defendant has not shown this advice deviated from the
             "prevailing professional norms" in 1998 for a criminal
             defense attorney. . . .

                   As discussed in Padilla, the fact that federal
             immigration laws as early as 1922 authorized the
             deportation of non-citizen drug offenders did not mean
             that those convicted were automatically deported.
             Until 1996, the sentencing court or the Attorney
             General of the United States retained discretion to
             recommend against or to waive the deportation
             provisions of federal immigration law. [559 U.S. at
             359-63]. Even after 1996, deportation proceedings did

4
  Although Rule 3:22-12(a)(2) refers to a "second or subsequent petition" and
Brewster's petition was his first, we noted that "the one-year supplemental
period should apply as well to a first petition filed beyond the five -year
limitation period of [Rule 3:22-12(a)(1)]" to avoid an "anomalous" result. Id. at
399, n.4.
                                                                             A-3293-17T3
                                        14
not automatically follow a conviction for a narcotics
offense, as the facts of this case reveal. Defendant was
sentenced in 1998 and remained undisturbed by federal
immigration officials for almost twelve years.

      ....

       We disagree with defendant's contention that
competent representation required advice from his
attorney that he "would" be deported as a result of his
conviction. In 1998, on the cusp of modification of
federal deportation law, defense counsel could not have
reasonably predicted the certainty or even likelihood of
defendant's deportation. In fact, it might have been
incorrect at that time for defense counsel to have
advised defendant he would surely, or likely, be
deported and thus potentially have caused defendant to
forego a favorable plea offer and to accept the
likelihood of a longer term in state prison by conviction
at trial. A longer prison sentence would not have saved
defendant from deportation.

      Accurate advice was provided to defendant in
1998 by the court's warning through its plea procedures
that defendant "may" be deported as a result of his
conviction. Considering the attendant circumstances in
1998, counsel's prediction that defendant would not
have an immigration issue, in conjunction with the
warning that he may be deported, was not unreasonable
advice or outside the norms of the profession. As a
factual matter, the information defendant received is
not prima facie proof of ineffective assistance of
counsel.

[Brewster, 429 N.J. Super. at 396-98.]




                                                            A-3293-17T3
                          15
      Applying these principles with a de novo standard of review, see State v.

Harris, 181 N.J. 391, 420 (2004), we agree with the PCR court that plea counsel's

advice to defendant, that he would not be deported, did not deviate from the

"prevailing professional norms" in 2005 for a criminal defense attorney.

Brewster, 429 N.J. Super. at 396. Given counsel's advice, in conjunction with

the warning defendant acknowledged on the plea form that he "may be deported

by virtue of [his] plea," as well as the verbal warning provided to defendant by

the court during the plea hearing that he "could get deported for this," like

Brewster, defendant has failed to establish the deficiency prong of his IAC

claim.

      Likewise, we are satisfied that the PCR court's finding that defendant

failed to establish the prejudice prong of his IAC claim is supported by the

record. Defendant's desire, as expressed at his sentencing, to be released from

jail in order to spend time with his daughter dispels his subsequent certification

submitted to support his PCR petition that avoiding deportation was his main

concern and the prime motivator for his decision to accept the plea. Courts must

"evaluate the sufficiency of a belated claim of misadvice before granting a

hearing. In so doing, the court should examine the transcripts of the plea

colloquy and sentencing hearing[.]" Gaitan, 209 N.J. at 381. "The subsequent


                                                                          A-3293-17T3
                                       16
presentation of conclusory allegations unsupported by specifics is subject to

summary dismissal, as are contentions that in the face of the record are wholly

incredible." Blackledge v. Allison, 431 U.S. 63, 74 (1977). Thus, "[c]ourts

should not upset a plea solely because of post hoc assertions from a defendant

about how he would have pleaded but for his attorney's deficiencies. Rather,

[judges] should look to contemporaneous evidence to substantiate a defendant's

expressed preferences." Lee v. United States, 582 U.S. ___, ___, 137 S. Ct.

1958, 1961 (2017).

      As the PCR court noted, instead of facing a mandatory minimum prison

sentence, defendant accepted a favorable pre-indictment plea offer for a

sentence of probation conditioned upon serving county jail time. Defendant did

not make a prima facie case that rejecting the highly favorable plea deal would

have been rational under the circumstances.      Because defendant failed to

establish a prima facie case of IAC under Nunez-Valdez, we find no abuse of

discretion in the denial of his PCR petition without an evidentiary hearing.

Based on our decision, we need not address the procedural bar to defendant's

PCR petition.5


5
  Defendant has not renewed on appeal his claim in the PCR court that he should
have been allowed to withdraw his guilty plea under Slater, 198 N.J. at 157-58.
Accordingly, we need not address the denial of the Slater motion.
                                                                       A-3293-17T3
                                     17
Affirmed.




                 A-3293-17T3
            18
