                                NOT FOR PUBLICATION WITHOUT THE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-2065-18T2

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

LUIS A. DEJESUS, a/k/a
LUIS ALBERTO DEJESUS,

     Defendant-Appellant.
________________________

                   Submitted March 9, 2020 – Decided March 20, 2020

                   Before Judges Sabatino and Geiger.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 15-03-0236.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Louis H. Miron, Designated Counsel, on the
                   brief).

                   Lindsay V. Ruotolo, Acting Union County Prosecutor,
                   attorney for respondent (Milton Samuel Leibowitz,
                   Special Deputy Attorney General/Acting Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Luis DeJesus appeals from an April 27, 2018 Law Division

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

evidentiary hearing. We affirm.

      Defendant is not a U.S. citizen. He was born in the Dominican Republic

and was residing in the United States as a lawful permanent resident. In 2015,

a Union County Grand Jury returned a fourteen-count indictment charging

defendant and three others with various controlled dangerous substance (CDS)

offenses occurring on several dates in two counties. Defendant was charged

with three first-degree offenses, three second-degree offenses, four third-degree

offenses.

      On November 29, 2016, defendant pleaded guilty to possession of CDS

with intent to distribute it (count twelve) in exchange for a sentencing

recommendation of a five-year prison term subject to a twenty-four-month

period of parole ineligibility and dismissal of all other charges. Defendant

provided a factual basis for his plea. He admitted that on October 22, 2014, he

and co-defendants, Brayan Emiliano and Anderson Veloz, possessed cocaine

with the intent to distribute it in both Union and Middlesex Counties. Defendant

also admitted that he knew it was illegal to possess cocaine with the intent to




                                                                        A-2065-18T2
                                       2
distribute it. Judge Regina Caulfield accepted the guilty plea after conducting a

thorough plea hearing.

      On January 20, 2017, defendant was sentenced in accordance with the plea

agreement to a five-year term with a twenty-four-month period of parole

ineligibility and appropriate fines and assessments. Defendant did not move to

withdraw his guilty plea or file a direct appeal from his conviction or sentence.

He was subsequently deported to the Dominican Republic.

      Defendant filed a timely pro se petition for PCR in which he alleged he

was improperly convicted of distribution of cocaine rather than possession with

intent to distribute cocaine. He also alleged the cocaine did not belong to him ;

the evidence implicated his co-defendants; he had no knowledge of CDS being

in the car he was driving; and he only pleaded guilty because he did not think

the plea would have such severe repercussions towards his immigration charges.

      Counsel was appointed to represent defendant and filed an amended

petition. The amended petition noted that defendant had no prior criminal

history at the time of his plea.      It claimed that defendant's counsel was

ineffective by failing "to properly explain the implications of the plea including

collateral consequences by giving affirmative mis-advice to [defendant] prior to

[him] pleading guilty and continuing through sentencing." In his supporting


                                                                         A-2065-18T2
                                        3
certification, defendant averred that he had numerous discussions with trial

counsel prior to the plea. He claimed trial counsel advised him that his chances

were "fifty-fifty" if he went to trial and "suggested strongly that [he] plead guilty

to a third[-]degree charge." He contended that counsel advised him that his plea

to "straight possession of CDS in the [third-degree] range . . . would not affect

[his] immigration status as he would ask the court to sentence [him] to tim e

served." Counsel later advised defendant that the prosecutor would agree to a

plea to third-degree possession with intent to distribute but not straight

possession of CDS. Defendant alleged that counsel "advised that a plea to

possession of CDS with intent to distribute would have the same effect on [his]

immigration status as a straight possession charge as long as [he] was sentenced

to time served." Defendant further alleged that counsel advised him that he was

eligible for a time-served sentence because he had enough jail credit to cover

the two-year period of parole ineligibility. Trial counsel explained that although

"a lawful permanent resident is not the same as a citizen," the plea "would not

affect [his] immigration status." Defendant averred that trial counsel "was

confident that a plea agreement and the sentencing outcome he anticipated

would result in [defendant] not being removed from the country."




                                                                            A-2065-18T2
                                         4
      Defendant acknowledged that at the time of his plea, Judge Caulfield

advised him that he would be deported, and he answered that he understood.

Defendant contended, however, that he relied on trial counsel's off the record

representation that he "would be sentenced to time served."

      Defendant further certified that he retained an immigration attorney post -

sentencing, who advised him that trial counsel had misadvised him about the

plea agreement, and that he was subject to removal. Defendant stated that had

he "not been misinformed about the collateral effect of [his] plea agreement by

[trial counsel, he] would have challenged the proofs in this case and if necessary

would have taken this case to trial."

      Judge Caulfield also presided over the PCR proceeding. Following oral

argument on April 27, 2018, the judge issued an order and oral decision denying

defendant's petition without an evidentiary hearing.

      In her oral decision, the judge carefully reviewed the plea agreement, plea

hearing, and defendant's certification. She noted that defendant pleaded guilty

to third-degree possession of CDS with intent to distribute knowing the sentence

recommendation was a five-year term with two years of parole ineligibility.

Prior to pleading guilty, defendant had numerous discussions with trial counsel.

Trial counsel also discussed the case with defendant's sister. Trial counsel


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                                        5
advised defendant that he was eligible for a time-served sentence because he had

enough jail credit to cover the two-year period of parole ineligibility.

      The judge pointed to defendant's certification, which acknowledged that

she had advised defendant during the plea hearing that he would be deported and

that defendant said he wanted to go forward with the plea because of trial

counsel representations.     The judge noted defendant was sentenced in

accordance with the plea agreement and that defendant could not receive a time-

served sentence because he was being sentenced to prison.

      The judge noted that defendant was charged with ten counts and his plea

agreement secured a much better result than what would have happened "had he

gone to trial and lost." Had he been unsuccessful at trial he risked "the potential

of consecutive sentences."

      The judge recounted the extensive questioning during the plea hearing

regarding defendant's immigration status; the fact that he would definitely be

deported if he pleaded guilty; defendant having discussed deportation with trial

counsel; that defendant understood he would be deported; that deportation was

not a mere probability or possibility; that defendant had enough time to consider

the plea agreement; that he was satisfied with trial counsel's advice; the language




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                                        6
of the plea forms regarding deportation; and that he had the right to seek advice

from an immigration attorney.

      The judge concluded there was no doubt that defendant knew he would be

deported, regardless of anything trial counsel may have said. The judge noted

that after she informed defendant that he would be deported, she asked him, "is

that what [trial counsel] told you?" Defendant answered, "Yes."

      The judge further concluded that an evidentiary hearing was not

necessary. She explained that there was never a discussion between the court

and defendant during the plea hearing that the court would consider a time -

served sentence.    "It was a state prison sentence from the beginning."

Defendant's plea agreement was reached after months of negotiation. Most of

his co-defendants received much higher plea offers. The charges against all

defendants were very serious and there was significant evidence against them.

Therefore, "it could not have come as a surprise to [defendant] that he received

what he bargained for, which is the state prison sentence."

      The judge also concluded that even if defendant's version of what trial

counsel said was true, it "would not have changed the outcome." The judge

found there was not "a reasonable possibility that but for" trial counsel's

statements, "defendant would not have pled guilty and would have insisted on


                                                                        A-2065-18T2
                                       7
going to trial. It wouldn't have made sense." The judge noted defendant was

charged with second-degree distribution of CDS, second-degree possession of

CDS with intent to distribution of over seven ounces of cocaine, and first-degree

maintaining a drug production facility.     In sum, "[i]t would not have been

reasonable for him to reject an excellent plea, a five with a two, and go to trial

being that he faced so much more [prison] time and the potential of consecutive

sentences." Accordingly, the judge found defendant did not satisfy the second

prong of the Strickland 1 test and denied the petition without conducting an

evidentiary hearing. This appeal followed.

       Defendant raises the following points for our consideration:

             I. THE PCR COURT ERRED IN RULING THAT
             DEJESUS     RECEIVED   THE    EFFECTIVE
             ASSISTANCE OF COMPETENT TRIAL COUNSEL
             IN CONNECTION WITH PLEADING GUILTY TO
             THE THIRD[-]DEGREE DRUG OFFENSE.

             II. THE PCR COURT ABUSED ITS DISCRETION
             BY FAILING TO CONDUCT AN EVIDENTIARY
             HEARING TO ADDRESS THE CLAIMS RAISED BY
             DEFENDANT.

       We review de novo the PCR court's factual findings made without an

evidentiary hearing. State v. Harris, 181 N.J. 391, 421 (2004). We also owe no



1
    Strickland v. Washington, 466 U.S. 668 (1984).
                                                                         A-2065-18T2
                                        8
deference to the trial court's conclusions of law. Ibid. Applying this standard

of review, we affirm the denial of defendant's PCR petition substantially for the

cogent reasons expressed by Judge Caulfield in her comprehensive oral decision.

We add the following comments.

      We apply the familiar two-pronged Strickland standard to determine

whether defendant has shown that (1) his counsel's performance was so deficient

that it "fell below an objective standard of reasonableness," and (2) there was "a

reasonable probability that, but for counsel's unprofessional errors, the result of

the proceeding would have been different." Strickland, 466 U.S. at 688, 694.

In a conviction based on a guilty plea, the petitioner must show "a reasonable

probability that, but for counsel's errors, [the petitioner] would not have pleaded

guilty and would have insisted on going to trial," Hill v. Lockhart, 474 U.S. 52,

59 (1985) (footnote omitted), and doing so "would have been rational under the

circumstances," Padilla v. Kentucky, 559 U.S. 356, 372 (2010).

      Petitioner bears the burden to establish a prima facie case. State v. Gaitan,

209 N.J. 339, 350 (2012).         "[W]e consider [a] petitioner's contentions

indulgently and view the facts asserted . . . in the light most favorable to him."

State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). However, we

require a petitioner to state "with specificity the facts upon which the claim for


                                                                          A-2065-18T2
                                        9
relief is based." R. 3:22-8. "[A] petitioner 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, 321 N.J. Super. at 170.

      Judge Caufield's findings are fully supported by the record and her

conclusions are consistent with applicable legal principles. Defendant was

informed at the plea hearing that his guilty plea would result in deportation. The

judge made clear that deportation was not a mere "possibility" or "probability ."

It was "definite." Defendant stated under oath that he understood and wanted to

proceed with the plea despite that knowledge.

      Defendant also understood that he was pleading guilty to third-degree

possession of CDS with intent to distribute in exchange for a recommendation

that he be sentenced to a five-year prison term subject to a two-year period of

parole ineligibility. He was sentenced in accordance with the plea agreement.

      Defendant claims he would not have pleaded guilty but for trial counsel's

misadvice and would have challenged the evidence at trial. As explained by

Judge Caulfield, defendant did not show a reasonable probability that , but for

trial counsel's alleged misadvice, he would have taken the case to trial rather

than accepting the very favorable plea agreement that counsel negotiated.


                                                                         A-2065-18T2
                                       10
Defendant was facing ten counts that included first and second-degree crimes.

He could have received consecutive sentences since the offenses occurred on

several dates and locations. As noted by the judge, rejecting the plea offer and

exposing himself to a much longer sentence would not have made sense. This

finding is amply supported by the record. Moreover, defendant did not appeal

his conviction or sentence or move to vacate his plea.

      "A defendant shall be entitled to an evidentiary hearing only upon the

establishment of a prima facie case in support of [PCR] . . . ." R. 3:22-10(b).

"To establish a prima facie case, defendant must demonstrate a reasonable

likelihood that his or her claim, viewing the facts in the light most favorable to

the defendant, will ultimately succeed on the merits." Ibid.

      Judge Caulfield properly decided that defendant did not establish a prima

facie case for PCR because he could not satisfy the second prong of the

Strickland test.   Accordingly, she correctly determined that an evidentiary

hearing was not required.

      Affirmed.




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