                                NOT FOR PUBLICATION WITHOUT THE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-2517-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

SAMANTHA CRUZ, a/k/a
ANGELA CRUZ,

     Defendant-Appellant.
_________________________

                   Submitted May 4, 2020 – Decided June 4, 2020

                   Before Judges Sabatino and Sumners.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Passaic County, Indictment No. 15-02-0065
                   and Accusation No. 10-06-0573.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Michele A. Adubato, Designated Counsel,
                   on the brief).

                   Camelia M. Valdes, Passaic County Prosecutor,
                   attorney for respondent (Ali Y. Ozbek, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
       Defendant Samantha Cruz, a non-United States citizen, appeals the Law

Division order denying her petition for post-conviction relief (PCR) following

an evidentiary hearing. On appeal, defendant argues:

             POINT I

             SINCE THE DEFENDANT ESTABLISHED THE
             TWO    PRONGS     OF    STRICKLAND     V.
                          [1]
             WASHINGTON         FOR        INEFFECTIVE
             ASSISTANCE OF COUNSEL IT WAS ERROR FOR
             THE COURT TO DENY [DEFENDANT'S] PETITION
             FOR POST[-]CONVICTION RELIEF.

             POINT II

             IT WAS ERROR FOR THE PCR COURT TO DENY
             DEFENDANT'S MOTION TO VACATE HER
             GUILTY PLEA.

       We disagree with the PCR judge by concluding trial counsel provided

ineffective assistance for failing to notice defendant's pre-sentence report

provided she was a Mexican national, which was contrary to her assertions in

her plea form and plea colloquy that she was a United States citizen. We affirm,

however, as there was no prejudice to defendant because counsel would not have

succeeded in withdrawing her guilty pleas principally for the reasons determined

by the judge when he denied her PCR request to vacate them.


1
    466 U.S. 668 (1984).
                                                                        A-2517-18T4
                                       2
                                        I

      Defendant pled guilty to an accusation charging her with aggravated

assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(3), and to an indictment

charging her with intent to distribute a controlled dangerous substance (CDS)

within 1000 feet of a school, N.J.S.A. 2C:35-7 and 2C:35-5(a). During the plea

colloquy, the judge, who was also the sentencing and PCR judge, asked

defendant, "[y]ou're a United States citizen?" to which she replied, ''[y]es." The

response was consistent with her plea form, where she indicated "[y]es" to the

question inquiring whether she was a citizen of the United States. Defendant

also responded "[y]es" when the judge asked her whether she "had enough time

to discuss this matter, not just the plea forms, but the case in [total] with [her

counsel], is that correct?"

      At defendant's sentencing about two months later, the judge adhered to

defendant's plea agreement by dismissing the other pending charges against her

and sentenced her to two five-year concurrent terms of probation and a time

served 364-days county jail term. Defendant did not appeal her convictions or

sentences.

      About a month after sentencing, defendant was charged with violation of

probation. Prior to disposition of the charge and facing deportation based upon


                                                                          A-2517-18T4
                                        3
her CDS conviction, the self-represented defendant filed a PCR motion to

withdraw her pleas and vacate her convictions alleging: (1) trial counsel failed

to advise her of the immigration consequences of her guilty pleas and to

negotiate a plea that would not have immigration consequences; and (2) she

would not have pled guilty had she been aware of the immigration consequences

of her pleas.

      In a subsequently filed "Amended Petition" by assigned PCR counsel,

defendant certified she was not guilty of either conviction and only pled guilty

because the plea agreement called for her release from jail after being

incarcerated for more than eight months pending resolution of her charges.

Defendant contended the aggravated assault conviction should be vacated

because she was defending a third person who was being assaulted. She also

argued the CDS conviction should be vacated because the CDS was not hers and

it was found at a house she just happened to be visiting pursuant to a search

warrant issued against a resident of the house.

      Upon hearing oral argument on defendant's request for a PCR evidentiary

hearing, the judge agreed.     Following the hearing, in which counsel and

defendant testified over the course of two separate dates, the judge issued an




                                                                        A-2517-18T4
                                       4
order and seventeen-page letter opinion denying PCR and defendant's motion to

vacate her guilty pleas.

      In denying PCR, the judge determined counsel did not provide ineffective

assistance as required by the first prong of Strickland's two-prong test based

primarily on his credibility assessment of defendant and counsel's testimony.

Contrary to defendant's representation, the judge found counsel thoroughly

reviewed the plea form signed by defendant, which indicated she was a United

States citizen, without rushing her to complete it. Relying upon State v. Nunez-

Valdez, 200 N.J. 129 (2009), State v. Gaitan, 209 N.J. 339 (2012), and State v.

Vieira, 334 N.J. Super. 681, (Law Div. 2000), the judge determined counsel had

no reason to discuss the immigration consequences of defendant's pleas because

she indicated she was a United States citizen. The judge noted defendant's

presentence report, "indicated that [defendant] was born in Mexico and was a

resident alien[,]" and that counsel "testified that prior to sentencing he would

have reviewed defendant's presentence report, but he did not remember taking

note that [defendant's] place of birth was in Mexico." The judge, however,

reasoned that since "defendant misrepresented her citizenship status under

oath[,]" it "was relied upon by counsel . . . , the State and [him] at the time of

plea and at sentence."


                                                                          A-2517-18T4
                                        5
      The judge further noted testimony that on two separate arrests, defendant

gave different pedigree information regarding her name, birthdate, address,

social security number, and her citizenship status.      The judge pointed out

defendant testified she did not recall him asking at her plea "whether she was a

United States citizen, though the transcript clearly indicates she was asked that

question and answered in the affirmative."

      In sum, the judge stated:

            Based on the numerous discrepancies and outright
            misrepresentations set forth above, this court finds that
            [defendant's] testimony entirely lacks credibility and
            cannot form the basis upon which relief under may be
            granted. To this court, counsel, court personnel and the
            police, petitioner has consciously misrepresented not
            only her immigration status, but her birthdate, social
            security number, and home address. At the plenary
            hearing, she either misremembered or misrepresented
            the basic procedural history of her case.

               ....

            Accordingly, there was no basis for [counsel]to discuss
            the immigration consequences with [defendant].
            Absent a legitimate basis for imputing knowledge of
            [defendant's]    foreign   citizenship,   the     relief
            contemplated under Nunez-Valdes, Gaitan, and Vieira
            is not implicated.

            In the same vein, this court finds that the ineffective
            assistance of counsel standard has not been met. To the
            contrary; this court finds that the ineffective assistance
            of counsel standard has not been met. To the contrary;

                                                                         A-2517-18T4
                                        6
            this court finds counsel to have exercised "reasonable
            professional judgement" and to have provided more
            than sufficient legal assistance and in this case.

                                        II

      Before us, defendant argues the judge erred in finding she did not establish

Strickland's two prong test for ineffective assistance of counsel because he

placed too much reliance on her representations on the plea form and in court

that she was a citizen. Defendant argues she was unaware of the immigration

consequences of her pleas, and had she been made aware by her counsel she

would not have pled guilty. She asserts given the conflicting indications in her

discovery (police reports) regarding her citizenship status and counsel's failure

to see her naturalization papers, the presentence report should have alerted

counsel to her lack of United States citizenship.

      The State contends defendant's continual misrepresentation of her

citizenship status belies application of Padilla v. Kentucky, 559 U.S. 356 (2010),

thereby defeating her PCR claims based upon counsel's lack of advice regarding

the impact of guilty pleas on her ability to remain in this country because she is

a Mexican national. According to the State, the judge's denial of relief was




                                                                          A-2517-18T4
                                        7
correct based on the record. The State further contends the judge properly

weighed the Slater2 factors in denying her motion to vacate her guilty pleas.

        To establish a prima facie claim of ineffective assistance of counsel, the

defendant is obligated to show not only the particular manner in which counsel's

performance was deficient, but also that the deficiency prejudiced his right to a

fair trial. Strickland, 466 U.S. at 687; State v. Fritz, 105 N.J. 42, 58 (1987).

Under the first prong of this test, the defendant must demonstrate that "counsel

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

guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at

687; Fritz, 105 N.J. at 52. In the context of ineffective assistance related to a

plea, the second prong requires a defendant to "'show that the deficient

performance prejudiced the defense.'" State v. Taccetta, 200 N.J. 183, 193

(2009) (citation omitted).

        Prejudice is not presumed and must be proven by the defendant. Fritz,

105 N.J. at 52. The inquiry is whether a defendant can "show that, had he been

properly advised, it would have been rational for him to decline the plea offer

and insist on going to trial and, in fact, that he probably would have done so[.]"

State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011) (citation omitted).


2
    State v. Slater, 198 N.J. 145, 157-58 (2009).
                                                                          A-2517-18T4
                                         8
"[A] [defendant] must convince the court that a decision to reject the plea

bargain would have been rational under the circumstances." Padilla, 559 U.S.

at 356. This "is an exacting standard: '[t]he error committed must be so serious

as to undermine the court's confidence in . . . the result reached.'" State v.

Allegro, 193 N.J. 352, 367 (2008) (alteration in original) (citations omitted).

Moreover, "[t]he failure to raise unsuccessful legal arguments does not

constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596,

625 (1990) (citing Strickland, 466 U.S. at 688; Fritz, 105 N.J. at 52); see also

State v. O'Neal, 190 N.J. 601, 618-19 (2007) (holding "[i]t is not ineffective

assistance of counsel for defense counsel not to file a meritless motion . . . .").

      Our review of an order granting or denying PCR contains consideration

of mixed questions of law and fact. State v. Harris, 181 N.J. 391, 415-16 (2004).

Where, as here, the judge conducts an evidentiary hearing, we must uphold the

judge's factual findings, "'so long as those findings are supported by sufficient

credible evidence in the record.'" State v. Rockford, 213 N.J. 424, 440 (2013)

(quoting State v. Robinson, 200 N.J. 1, 15 (2009)). Additionally, we defer to a

trial judge's findings that are "'substantially influenced by [the judge's]

opportunity to hear and see the witnesses and to have the 'feel' of the case, which

a reviewing court cannot enjoy.'"        Ibid. (alteration in original) (quoting


                                                                            A-2517-18T4
                                         9
Robinson, 200 N.J. at 15). However, "we need not defer to a PCR [judge's]

interpretation of the law[,]" as all legal conclusions are reviewed de novo. Id.

at 540-41.

      Here, the alleged ineffectiveness pertained to whether counsel properly

advised defendant about the immigration consequences of her guilty pleas to

aggravated assault and CDS charges. In the context of a guilty plea, the standard

to establish ineffective assistance of counsel is somewhat modified.         "[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 includes an affirmative responsibility to inform a defendant

entering a guilty plea of the relevant law pertaining to mandatory deportation.

Padilla, 559 U.S. at 368-69. This court has made clear that 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, 330-31 (App. Div. 2012)

(citing Padilla, 559 U.S. at 369).




                                                                          A-2517-18T4
                                       10
      We take no issue with the judge's credibility findings as they are based

upon his assessment of the live testimony by defendant and counsel, as well as

the plea proceeding. The record leaves little doubt defendant lacked credibility

based upon her conflicting representations as to her citizenship status.          A

cornerstone of the attorney-client relationship is candor.         It is apparent

defendant has not satisfied her responsibility within that relationship. That said,

when information concerning a client's citizenship status is presented to an

attorney contradicting their client's representations and has deportation

consequences, it is the attorney's professional duty to bring it to the client's

attention first, and then the court. As evidenced by the following colloquy,

counsel did not notice the presentence report stated defendant was born in

Mexico and was not a United States citizen:

            [Question]: Okay. So now, when you see this pre-
            sentence report prior to sentence being imposed, and
            you see that it indicates Mexico as a place of birth, did
            it cause you any concern that you have to speak with
            your client? First of all, was this something that you
            were completely comfortable with because she had
            indicated Mexico but somehow indicated to you how
            she became a naturalized citizen?

            [Counsel]: I don't -- I don't specifically recall noticing
            the place of birth Mexico and -- or having a
            conversation with [defendant].



                                                                           A-2517-18T4
                                       11
      Counsel then candidly stated that because defendant was late for

sentencing, he was unsure as to whether he reviewed the presentence report

"faster than we would have normally went through it." More troubling is that

when the judge asked counsel at sentencing whether he had "any additions,

deletions, corrections to the [presentence report]," he replied "I do not, Your

Honor. I have reviewed it."

      We cannot disregard counsel's failure to address defendant's citizenship

status in the presentence report with defendant, regardless of her lack of candor

with counsel and the judge.     This was not an onerous burden on counsel,

especially given the contradictory discovery regarding defendant's citizenship.

      This situation, however, differs from that in Padilla and Barros addressing

counsel's obligation to advise his or her non-United States citizen client

regarding the deportation consequences of pleading guilty to certain offenses.

There, the defendants did not misrepresent to their counsel nor the plea court

that they were United States citizens. In this case, it was after defendant pled

guilty and prior to sentencing that counsel was put on notice through the

presentence report that defendant was a Mexican national.




                                                                         A-2517-18T4
                                      12
                                       III

      Our conclusion that counsel was ineffective does not end our analysis of

defendant's ineffective assistance claim because Strickland's second prong –

prejudiced by counsel's ineffectiveness – must be addressed. If counsel would

have discussed the citizenship situation with defendant – assuming she would

have confirmed she was not a United States citizen – the proper course of action

would have been for counsel to request a postponement of the sentencing so he

could file a motion to vacate her guilty pleas. Under the circumstances, it would

have been appropriate to grant the request.

      In determining trial counsel was not ineffective, the judge did not directly

address the prejudice prong. However, the contentions trial counsel would have

raised in a motion to vacate defendant's guilty plea prior to sentencing were in

fact raised in her PCR petition and denied by the judge in his PCR ruling. Thus,

we examine this portion of the judge's ruling.

      Before analyzing defendant's PCR request to vacate her guilty pleas and

the judge's rejection of her arguments, we address the relevant law. To grant a

defendant's request to withdraw a defendant's guilty plea, the trial court must

consider and balance the four-factor Slater test, which provides:

            (1) whether the defendant has asserted a colorable
            claim of innocence; (2) the nature and strength of

                                                                          A-2517-18T4
                                      13
            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.

            [Slater, 198 N.J. at 157-58.]

      The standard to withdraw a guilty plea prior to sentencing is in the interest

of justice. State v. Howard, 110 N.J. 113, 123-24 (1988) (citation omitted).

"'[T]he burden rests on the defendant, in the first instance, to present some

plausible basis for his request, and his good faith in asserting a defense on the

merits.'" Slater, 198 N.J. at 156 (quoting State v. Smullen, 118 N.J. 408, 416

(1990)). "Generally, representations made by a defendant at plea hearings

concerning the voluntariness of the decision to plead, as well as any findings

made by the trial court when accepting the plea, constitute a 'formidable barrier'

which defendant must overcome before he will be allowed to withdraw his plea."

State v. Simon, 161 N.J. 416, 444 (1999) (quoting Blackledge v. Allison, 431

U.S. 63, 74 (1977)).    Accordingly, "'courts are to exercise their discretion

liberally to allow plea withdrawals[]'" and "'[i]n a close case, the scales should

usually tip in favor of defendant.'" State v. Munroe, 210 N.J. 429, 441 (2012)

(internal quotation omitted) (quoting Slater, 198 N.J. at 156); Taylor, 80 N.J. at

365. Nevertheless, the Munroe Court explained that "[l]iberality in exercising

discretion does not mean an abdication of all discretion, and, accordingly, any

                                                                           A-2517-18T4
                                       14
plea-withdrawal motion requires a fact-specific analysis[.]" 210 N.J. at 441-42

(first alteration in original) (citations and internal quotation marks omitted).

Thus, we will reverse the trial court's determination of whether to allow a

defendant to withdraw a guilty plea "only if there was an abuse of discretion

which renders the lower court's decision clearly erroneous." Simon, 161 N.J. at

444 (citing Smullen, 118 N.J. at 416).

      In denying defendant's motion to vacate her guilty pleas, the judge initially

found review of the plea hearing transcript supported his "determination that

there was an adequate factual basis for the plea and that it was made voluntarily,

with an understanding by . . . defendant as to the nature of the charge and the

consequences of her plea" as required by Rule 3:9-2.

      In weighing the four Slater factors, the judge decided defendant failed to

establish a basis for withdrawing her pleas. As to the first factor, the court found

defendant did not assert a colorable claim of innocence for each conviction.

Defendant testified at the evidentiary hearing she was not guilty of aggravated

assault because she was defending a third person. On the CDS conviction,

defendant testified the CDS was not hers because police were executing a search

warrant directed at another person who lived at a residence where she did not

live. The judge found defendant's proofs lacking because she did not submit any


                                                                            A-2517-18T4
                                         15
credible or specific facts in support of her claim of innocence. For example,

regarding the CDS guilty plea, the judge pointed out: "While executing a search

warrant for the second floor, the police heard someone run from the second to

the first floor, where they found defendant hiding in the presence of empty

glassine packets and drug paraphernalia."

      Regarding the second factor, the nature and strength of defendant's

reasons for withdrawal, defendant argues she sought to withdraw her guilty pleas

because they were not voluntary, meaning she would not have pled guilty if she

knew deportation would follow. The judge found defendant's request to vacate

her pleas rested "solely upon the unanticipated consequence of the discovery of

her true immigration status – a status she actively misrepresented – and not

genuine claims of innocence . . . ."

      The judge stated the third factor, the existence of plea agreement, requires

defendant to satisfy a heavy burden to withdraw her pleas, and gave it no weight

in her favor.

      As to the fourth factor, whether plea withdrawal would result in unfair

prejudice to the State or unfair advantage to the accused, defendant argues the

State presented no proof it would be prejudiced by having to go to trial on

defendant's charges. The judge noted since defendant's claims under the first


                                                                          A-2517-18T4
                                       16
three factors were entitled to no weight, Slater does not require the State to show

prejudice if the pleas were withdrawn. 198 N.J. at 162 (citations omitted).

Nonetheless, the judge determined "[i]t is axiomatic that the passage of time

tends to favor the accused and prejudice the State––witnesses move and become

difficult to locate[]; evidence is mislaid or lost; memories fade with time."

      By finding defendant failed to satisfy the Slater factors and had not

established that a failure to withdraw her guilty plea would result in a manifest

injustice, the judge denied the motion. We see no abuse of discretion, nor unjust

result. The judge's weighing of the Slater factors is supported by the record.

The factual basis defendant gave for her pleas during her colloquy were not

overcome by her PCR certification and the arguments presented to the judge or

to this court. Had trial counsel raised this motion after learning through the

presentence report defendant was not a United States citizen the same result

would have occurred; the motion would have been denied. Thus, there was no

prejudice caused by trial counsel's failure to make this same motion upon review

of the presentence report and necessary consultation with defendant. Moreover,

defendant should not obtain the benefit of relitigating charges made against her

where she has created a trail of deception without any facts in the record

supporting mitigation of her actions.


                                                                           A-2517-18T4
                                        17
Affirmed.




                 A-2517-18T4
            18
