                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-4333-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

LUIS A. RODRIGUEZ, a/k/a
FREDDIE, LUIS RODREQUEZ,
LOUIS RODRIGUEZ, FREDDY
RODRIGUEZ, FREDDIE RODRIGUEZ,
FREDDY RODRIQUEZ, FREDED
RODRIQUEZ, LUIS A. RODRIQUEZ,
FREDDIE RORIGUEZ, LUIS A.
RODRIQUEZ, and FREDDIE CHEO,

     Defendant-Appellant.
__________________________________

                    Submitted September 24, 2019 – Decided October 11, 2019

                    Before Judges Currier and Firko.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Monmouth County, Indictment No. 11-01-
                    0124.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Durrell Wachtler Ciccia, Designated
                    Counsel, on the brief).
            Christopher J. Gramiccioni, Monmouth County
            Prosecutor, attorney for respondent (Carey J. Huff,
            Assistant Prosecutor, of counsel and on the briefs).

            Appellant filed a pro se supplemental brief.

PER CURIAM

      Defendant Luis A. Rodriguez appeals from the denial of his petition for

post-conviction relief (PCR). After a review of the contentions in light of the

record and applicable principles of law, we affirm.

      Following a guilty plea to third-degree burglary, N.J.S.A. 2C:18-2, and

second-degree sexual assault, N.J.S.A. 2C:14-2(b), defendant was sentenced to

an aggregate term of six years in prison subject to a mandatory parole

ineligibility period, three years of mandatory supervision, Megan's Law

registration, parole supervision for life, and additional conditions. 1 Defendant's

appeal of his sentence was heard on a sentencing argument calendar and

affirmed. State v. Rodriguez, No. A-1470-13 (App. Div. Feb. 11, 2014).

      Defendant filed a PCR petition alleging ineffective assistance of counsel

in February 2016. This petition was handwritten in English. An amended

petition was filed by counsel in November 2016.            In the accompanying



1
 At the time of these offenses, defendant was already registered under Megan's
Law and subject to parole supervision for life as a result of prior convictions.
                                                                           A-4333-17T4
                                        2
certification, defendant stated he was not informed of the potential for civil

commitment at the time of his plea hearing. Although defendant acknowledged

he had subsequently learned that he was informed by the judge during the plea

proceeding that he could be subject to civil commitment, he stated he was not

informed as to the meaning of the penalty.

      Defendant further alleged he understood very little English, and therefore

he did not understand everything his attorney was telling him as they reviewed

the plea forms. Defendant acknowledged there was a Spanish interpreter present

at the plea hearing. He also contended he requested his counsel withdraw his

guilty plea prior to sentencing but his attorney did not do so, persuading him

instead to go forward with the sentencing hearing.

      In a thorough written decision of March 2, 2018, Judge Joseph W. Oxley

found that, with the exception of the ineffective assistance of counsel claim,

defendant's assertions were procedurally barred under Rule 3:22-4(a). The

judge determined the majority of the contentions raised by defendant were issues

that should have been raised in a direct appeal. In addressing the ineffective

assistance of counsel claims, the judge found defendant had failed to establish a

prima facie case that would entitle him to an evidentiary hearing. The PCR

petition was denied.


                                                                         A-4333-17T4
                                       3
      On appeal, defendant argues through counsel that the PCR judge erred in

denying his request for an evidentiary hearing. He asserts that trial counsel

failed to communicate with him in Spanish, his native language, and specifically

failed to inform him of the consequences of civil commitment.                In a

supplemental pro se brief, defendant further argues: his trial counsel was

ineffective for failing to discuss exculpatory evidence with him, and

commitment under the Sexual Violent Predator Act, N.J.S.A. 30:4-27.24

to -27.38, violates the United States and New Jersey Constitutions.

      The standard for determining whether trial counsel's performance was

ineffective for purposes of the Sixth Amendment was formulated in Strickland

v. Washington, 466 U.S. 668 (1984), and adopted by our Supreme Court in State

v. Fritz, 105 N.J. 42 (1987). In order to prevail on a claim of ineffective

assistance of counsel, defendant must meet the two-prong test establishing both

that: (l) counsel's performance was deficient and he or she made errors that were

so egregious that counsel was not functioning effectively as guaranteed by the

Sixth Amendment to the United States Constitution; and (2) the defect in

performance prejudiced defendant's rights to a fair trial such that there exists a

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

of the proceeding would have been different." Strickland, 466 U.S. at 687, 694.


                                                                          A-4333-17T4
                                        4
      We are satisfied from our review of the record that defendant failed to

demonstrate trial counsel was ineffective under the Strickland-Fritz test. After

the plea judge noted the interpreter was present and translating, he stated: "I

know that [defendant] does speak English. When you went over the plea forms,

was the interpreter with you or not?" Counsel responded:

            The interpreter was not. However, I went over them
            slowly with him.       I had known from previous
            encounters as well as the doctor's reports that he can
            understand if you take the time to go through it. And I
            have verbally [gone] over each one as opposed to just
            giving them to him to read. So I think that it might be
            wise to go over some of the pertinent facts as we always
            do here with him and the translator at this point.

      The plea judge then inquired of defendant whether he understood English.

Defendant responded: "yes." The colloquy continued:

            Q [Judge]. And in fact we've had many conversations
            in English where I've talked to you directly. Correct?

            A. Yes.

            Q. Are you a United States citizen?

            A. Yes.

            Q. Do you read, write and understand the English
            language?

            A. A little.



                                                                        A-4333-17T4
                                       5
            Q. You understand the spoken language more than
            written; would that be fair to say?

            A. Yes.

      Through the translator, the plea judge confirmed with defendant that he

was satisfied with the legal advice of counsel, and that he had initialed and

signed all of the plea forms. When the judge asked defendant if counsel had

reviewed all of the questions on the plea form with him, defendant responded

"yes" in English. He also told the judge in English that he understood the

questions on the plea forms. The judge reminded defendant to wait for the

translation before answering.

      Defendant acknowledged signing and initialing next to question seven of

the New Jersey Additional Questions for Certain Sexual Offenses, which

specifically discusses civil commitment. The judge also reviewed the question

with defendant.

            Q. Now, question seven talks about civil commitment.
            Because you are convicted of sexual assault, if it was
            found that this was a sexually violent offense there
            could be a recommendation for a civil commitment.
            However, you would have the right to have a hearing
            and you would be represented by counsel. Do you
            understand that?

            A. Yes.

            Q. Any questions about any of those conditions?

                                                                      A-4333-17T4
                                      6
            A. No.

      Defense counsel and the plea judge both carefully went through the plea

and supplemental forms with defendant. The judge used a Spanish interpreter

during the court proceedings. Defendant advised he had read the forms, counsel

had gone over them with him, and he told the judge he did not have any questions

specifically as to the condition of civil commitment.

      We are satisfied defendant has not presented a prima facie case of

ineffective assistance of counsel to require an evidentiary hearing. He has not

shown a deficiency or error by counsel. We also discern no merit to defendant's

supplemental argument that he did not understand the questions because he was

not proficient in English. As stated, the plea and sentencing hearings were

conducted with an interpreter and he advised the judge he understood English.

      In turning to defendant's additional arguments raised in his pro se brief,

we find they lack sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2).   Defendant fails to state what exculpatory evidence was not

discussed with him. Without more, he has not established a prima facie case of

ineffective assistance of counsel. His remaining arguments are procedurally

barred under Rule 3:22-4 as they should have been pursued on direct appeal.

      Affirmed.


                                                                         A-4333-17T4
                                       7
