                        NOT FOR PUBLICATION WITHOUT THE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-2212-15T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

RENE RODRIGUEZ,

     Defendant-Appellant.
__________________________

              Argued May 24, 2017 – Decided July 19, 2017

              Before Judges       Simonelli,     Gooden   Brown    and
              Farrington.

              On appeal from the Superior Court of New
              Jersey, Law Division, Union County, Indictment
              No. 05-11-1496.

              Eric M. Mark argued the cause for appellant
              (Law Office of Eric M. Mark, attorneys; Mr.
              Mark, on the briefs).

              Kimberly L. Donnelly, Special Deputy Attorney
              General/Acting Assistant Prosecutor, argued
              the cause for respondent (Grace H. Park,
              Acting Union County Prosecutor, attorney; N.
              Christine Mansour, Special Deputy Attorney
              General/Acting   Assistant   Prosecutor,   of
              counsel and on the brief).
PER CURIAM

     Defendant Rene Rodriguez appeals from the January 6, 2016 Law

Division order, which denied his petition for post-conviction

relief (PCR) without an evidentiary hearing.        We affirm.

     We derive the following facts from the record.           On September

19, 2005, the police observed defendant engage in a hand-to-hand

drug transaction.      Defendant drove away from the scene of the

transaction and the police stopped him a short time later.                 A

consent search of defendant's car revealed eighteen plastic bags

containing cocaine.     The police searched defendant following his

arrest and found $400 on his person.

     Defendant was charged under Warrant Nos. W-05-851-2009 and

W-05-852-2009   with    third-degree   possession    of   a    controlled

dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); second-degree

possession with intent to distribute a CDS, N.J.S.A. 2C:35-5(a)(1)

and N.J.S.A. 2C:35-5(b)(2); second-degree possession with intent

to distribute a CDS within 500 feet of a public park, N.J.S.A.

2C:35-7.1; and third-degree possession with intent to distribute

a CDS within 1,000 feet of school property, N.J.S.A. 2C:35-7.

     On November 30, 2005, defendant entered a pre-indictment

guilty plea to possession with intent to distribute a CDS, N.J.S.A.

2C:35-5(a)(1), amended to third degree.      In exchange, the State

agreed to recommend a three-year probationary term with 180 days

                                  2                                A-2212-15T2
to be served in the county jail, and to dismiss the remaining

charges.

    At the plea hearing, defendant testified that he reviewed

each question on the plea forms with plea counsel, and gave

truthful answers to each question.         Defendant had answered "Yes"

to Question 17, which asked if he understood that he may be

deported as a result of his guilty plea if he was not a United

States     citizen   or    national.       Regarding   the   deportation

consequences, the following colloquy occurred:

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

            [DEFENDANT]:     No.

            [THE COURT]:   Do you understand you may be
            deported if you plead guilty?

            [DEFENDANT]:     Yes.

            [THE COURT]:     Do you want to plead guilty
            knowing that?

            [DEFENDANT]:     I wanted to plead innocent.

            [THE COURT]:     I'm sorry?

            [DEFENDANT]:   I'm confused right now.     I
            don't know what to take. Guilty or innocent.

            [PLEA COUNSEL]:        Are you married to a U.S.
            citizen?

            [DEFENDANT]:       No.

            [PLEA COUNSEL]: Do you have children born in
            the United States?


                                       3                         A-2212-15T2
          [DEFENDANT]:      Yes.

          [PLEA COUNSEL]:    Okay.     Unlikely.

          [DEFENDANT]:      I'll plead guilty.

          [THE COURT]:   Are you sure?

          [DEFENDANT]:      Yes.

     When defendant again expressed uncertainty about pleading

guilty, the court refused to accept the plea and stated: "You're

going to talk to your lawyer and I'm only going to take your plea

if you fully understand everything."        After a brief recess, the

following colloquy occurred:

          [THE COURT]:   You all set?

          [PLEA COUNSEL]:      Absolutely.         [Defendant]
          says he's fine.

          [THE COURT]:   Where were we when we left off?

          [DEFENDANT]:      I was pleading guilty, Your
          Honor.

          [THE COURT]:   Are you okay with everything
          now?

          [DEFENDANT]:   Yeah.

               . . . .

          [THE COURT]:    Are [you] willing to plead
          guilty knowing the consequences with regards
          to the deportation if there's a chance that
          they may file deportation charges against you?

          [DEFENDANT]:   Yes sir.



                                   4                             A-2212-15T2
            [THE COURT]:   And you had a chance to talk
            with [plea counsel] about that?

            [DEFENDANT]:   Yes, sir.

            [THE COURT]:   Okay.     Do   you  have   any
            questions of [plea counsel] about anything?

            [DEFENDANT]:   No.

            [THE COURT]:   Okay. Are you satisfied with
            the work [plea counsel] performed for you?

            [DEFENDANT]:   Yes.

            [(Emphasis added).]

Defendant also testified he was not forced or threatened into

pleading guilty and did so freely and voluntarily.    He then gave

a factual basis for his plea, admitting that he possessed cocaine

with the intent to distribute.

     On March 28, 2006, the court sentenced defendant to a three-

year probationary term with a 180-day jail sentence, which was

later suspended.     Defendant did not appeal his conviction or

sentence.

     In May 2015, the United States Department of Homeland Security

initiated immigration removal proceedings against defendant based

on his drug conviction.    On July 14, 2015, defendant filed a PCR

petition.   In his verified petition, defendant certified that plea

counsel rendered ineffective assistance by failing to: (1) apply

for pre-trial intervention (PTI); (2) pursue meritorious defenses,


                                  5                         A-2212-15T2
including a motion to suppress based on an unlawful motor vehicle

stop; and (3) negotiate a non-deportable plea.              Defendant did not

certify that plea counsel affirmatively misadvised him there would

be no immigration consequences of his guilty plea.              Defendant also

filed a motion to withdraw his guilty plea pursuant to Rule 3:21-

1.

       At oral argument on the PCR petition, PCR counsel argued

there was excusable neglect to relax the five-year time bar of

Rule    3:22-12(a)(1)      because    defendant     was     unaware   of    the

deportation consequences of his plea until deportation proceedings

began in May 2015, and denial of the petition would result in a

fundamental injustice. PCR counsel asserted that plea counsel

rendered     ineffective    assistance      by   affirmatively     misadvising

defendant there would be no immigration consequences and he would

not    be   deported   when,   in   fact,   defendant     was   pleading   to   a

deportable offense.

       In a January 6, 2016 oral opinion, Judge William A. Daniel

denied the petition without an evidentiary hearing, concluding it

was time-barred by Rule 3:22-12(a)(1), and defendant failed to

show excusable neglect or that a denial of the petition would

result in a fundamental injustice.           The judge found defendant had

knowledge and was aware of the potential immigration consequences



                                       6                               A-2212-15T2
when he pled guilty, and had the opportunity and incentive to

inquire about his immigration status post-plea, but did not do so.

      Addressing     the     merits,    Judge    Daniel      reviewed      the   plea

transcript and defendant's verified petition, and found the record

did   not   support    PCR     counsel's       argument     that    plea    counsel

affirmatively misadvised defendant there would be no immigration

consequences and he would not be deported.                 The judge emphasized

that defendant did not certify that plea counsel advised him he

would not be deported.          The judge concluded that by answering

"Yes" to Question 17, defendant was on notice of the potential

deportation consequences of his guilty plea.

      Judge Daniel found that given the nature of the offenses

charged, defendant was presumptively ineligible for PTI under

Guideline 3(i) of Rule 3:28, and there was no evidence defendant

was drug dependent or that the prosecutor was willing to join in

a PTI application.         The judge concluded that plea counsel was not

ineffective    for    failing    to     file    a   likely    unsuccessful        PTI

application.

      Judge Daniel determined that a motion to suppress would have

failed   because     the    police     had   probable     cause    to   conduct     an

investigatory stop of defendant's car based on them observing him

engaging in a hand-to-hand drug transaction.                 The judge concluded



                                         7                                   A-2212-15T2
that plea counsel was not ineffective for failing to file a

meritless motion to suppress.

       Judge Daniel found defendant did not certify that the State

was willing to offer anything less than what was offered or that

plea counsel did not attempt to negotiate a more favorable plea

deal.    The judge concluded there was no competent evidence that

plea    counsel   rendered   ineffective   assistance   by   failing    to

negotiate a non-deportable plea.

       Lastly, Judge Daniel denied defendant's motion to withdraw

his guilty plea.    The judge found that defendant entered his plea

voluntarily and knowingly and provided a factual basis.        The judge

determined that defendant failed to satisfy the Slater factors:

(1) whether defendant 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 the withdrawal

would result in unfair prejudice to the State or unfair advantage

to defendant.     State v. Slater, 198 N.J. 145, 157-58 (2009).        The

judge found that defendant did not assert his innocence at the

plea hearing, but merely seemed unsure as to whether or not to

plead guilty, and did not certify that he was innocent of the

offense charged.    The judge also found that defendant's reason for

withdrawal, ineffective assistance of counsel, lacked merit; there

was a negotiated plea; defendant benefitted from a favorable plea

                                   8                             A-2212-15T2
bargain; defendant knew of the deportation consequences of his

plea; and the State would be prejudiced by the ten-year delay

while defendant would have an unfair advantage.

    On appeal, defendant raises the following contentions:

        I.     The Time Bar to PCR is      Overcome by
               Excusable  Neglect and       Fundamental
               Injustice.

               A.   Petitioner's Failure to Timely
                    File   Was  Due  to  Excusable
                    Neglect.

                       i. The Lower Court Erred
                       in Finding the Absence of
                       Excusable Neglect because
                       of the Court's Warnings.

                       ii. The Lower Court Erred
                       in Finding the Plea Form,
                       Alone, Showed "Knowledge
                       or   Awareness"   of   the
                       Immigration Consequences.

                       iii. [Defendant] Did Not
                       Have the "Knowledge or
                       Awareness" of Immigration
                       Consequences Because His
                       Trial Counsel Misinformed
                       Him.

               B.   Enforcement of the Time Bar
                    Would Result in Fundamental
                    Injustice.

         II.   Ineffective Assistance of Counsel.

               A.   Defense    Counsel    Misadvised
                    [Defendant]    of    Immigration
                    Consequences.



                                9                         A-2212-15T2
               B.   Defense Counsel Failed to Apply
                    [Defendant] to [PTI].

               C.   Defense Counsel Failed to Pursue
                    Potentially          Meritorious
                    Defenses.

               D.   Defense   Counsel    Failed   to
                    Negotiate    a    Non-Deportable
                    Plea.

               E.   Cumulative Effects.

       III.    The Trial Court Erred       in   Denying   an
               Evidentiary Hearing.

         IV.   Withdrawal of Guilty Plea Should Have
               Been Granted Because [Defendant] Did Not
               Have a Comprehensive Understanding of the
               Consequences.

     We review a judge's decision to deny a PCR petition without

an evidentiary hearing for abuse of discretion. State v. Preciose,

129 N.J. 451, 462 (1992).    We discern no abuse of discretion here.

     The mere raising of a claim for PCR does not entitle the

defendant to an evidentiary hearing.     State v. Cummings, 321 N.J.

Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (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 ineffective assistance, material issues of

disputed fact lie outside the record, and resolution of the issues

necessitates a hearing.     R. 3:22-10(b); State v. Porter, 216 N.J.




                                  10                           A-2212-15T2
343, 355 (2013).   To establish a prima facie claim of ineffective

assistance of counsel, the defendant

          must satisfy two prongs.     First, he must
          demonstrate that counsel made errors so
          serious that counsel was not functioning as
          the counsel guaranteed the defendant by the
          Sixth Amendment. An attorney's representation
          is deficient when it [falls] below an
          objective standard of reasonableness.

               Second, a defendant must show that the
          deficient performance prejudiced the defense.
          A defendant will be prejudiced when counsel's
          errors are sufficiently serious to deny him a
          fair trial. The prejudice standard is met if
          there is a reasonable probability that, but
          for counsel's unprofessional errors, the
          result of the proceeding would have been
          different.   A reasonable probability simply
          means a probability sufficient to undermine
          confidence in the outcome of the proceeding.

          [State v. O'Neil, 219 N.J. 598, 611 (2014)
          (citations omitted).]

     "[I]n order to establish a prima facie claim, [the defendant]

must do more than make bald assertions that he was denied the

effective assistance of counsel.     He must allege facts sufficient

to   demonstrate   counsel's   alleged    substandard   performance."

Cummings, supra, 321 N.J. Super. at 170.         The defendant must

establish, by a preponderance of the credible evidence, that he

is entitled to the requested relief.     State v. Nash, 212 N.J. 518,

541 (2013).   With respect to a guilty plea, our Supreme Court has

explained that


                                11                            A-2212-15T2
            [t]o set aside a guilty plea based on
            ineffective assistance of counsel, a defendant
            must show that (i) counsel's assistance was
            not within the range of 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.

            [State v. Nuñez-Valdéz, 200 N.J. 129, 139
            (2009) (quoting State v. DiFrisco, 137 N.J.
            434, 457 (1994)).]

     We have considered defendant's contentions in light of the

record and applicable legal principles and conclude they are

without    sufficient   merit   to   warrant   discussion   in   a   written

opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons

expressed by Judge Daniel in his comprehensive and cogent oral

opinion.    However, we make the following brief comments.

     The Supreme Court of the United States has held that defense

attorneys are affirmatively obligated to inform their clients

about the deportation risks of entering a guilty plea.               Padilla

v. Kentucky, 559 U.S. 356, 366, 130 S. Ct. 1473, 1482, 176 L. Ed.

2d 284, 294 (2010).     However, the Court held that Padilla does not

apply retroactively,     Chaidez v. United States, ___ U.S. ___, ___,

133 S. Ct. 1103, 1105, 185 L. Ed. 2d 149, 154 (2013), and our

Supreme Court held that Padilla is a new rule to be applied

prospectively only.     State v. Gaitan, 209 N.J. 339, 371-72 (2012),



                                     12                              A-2212-15T2
cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361

(2013); see also State v. Santos, 210 N.J. 129, 143 (2012).

       Here,   defendant    pled   guilty       five    years   before    Padilla.

Therefore, his "guilty plea is not vulnerable because neither the

court nor counsel warned the defendant about the deportation

consequences of the guilty plea." Gaitan, supra, 209 N.J. at 361

(citation omitted).

       A limited exception to this rule arises when defense counsel

provided affirmatively misleading advice about the immigration

consequences of a guilty plea.        See Nuñez-Valdéz, supra, 200 N.J.

at 139-43 (where defense counsel informed the defendant there

would be no immigration consequences arising from his plea); see

also   Santos,    supra,    210    N.J.    at    143.      That       exception      is

inapplicable here because Judge Daniel did not find that plea

counsel   affirmatively     misadvised      defendant      there      would    be    no

deportation consequences arising from his plea.                 Rather, the judge

found there was no competent evidence counsel gave affirmatively

misleading advice, and defendant knew that he may be deported by

virtue of having read and truthfully answered "Yes" to Question

17 and having been alerted to that possibility at the plea hearing.

This   information    was    not   prima    facie       proof    of    ineffective

assistance of counsel.        State v. Brewster, 429 N.J. Super. 387,

398 (App. Div. 2013).

                                     13                                       A-2212-15T2
Affirmed.




            14   A-2212-15T2
