July 28, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PATRICK A. TRIUMPH, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 87-09-1701.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 15, 2008
Before Judges C.S. Fisher and Grall.
Defendant Patrick A. Triumph appeals from an order denying his motion to vacate a guilty plea that was entered on January 23, 2007. The plea of guilty was entered on November 27, 1989. Defendant entered that plea of guilty to one count of passing a check knowing it would not be honored by the drawee, N.J.S.A. 2C:21-5. As a consequence of the plea, all remaining charges included in a seventeen-count indictment were dismissed and a sentence of one year's probation was imposed. The judgment of conviction was entered on January 19, 1990.
When defendant moved to vacate his plea, he apparently was incarcerated in federal prison on charges related to income taxes and was awaiting a decision on deportation. He asserts that the attorney representing him at the time of his guilty plea gave him misinformation about the impact of his plea on deportation. That assertion is not supported by an affidavit or certification, and in a letter written to defendant, the attorney who represented him at the time of the plea indicates that he has no record or recollection of the case.
Judge Garofolo denied defendant's motion, without a hearing, on the ground that defendant failed to establish a prima facie case of manifest injustice warranting an order vacating a guilty plea and, as a consequence, a judgment of conviction and sentence entered nearly seventeen years before the motion. R. 3:21-1.
Defendant raises four issues on appeal:
I. THE DEFENDANT'S RIGHT TO DUE PROCESS WAS VIOLATED BY THE STATE'S FAILURE TO SECURE [HIS] PRESENCE FOR AN EVIDENTIARY HEARING IN DENYING MOTION TO WITHDRAW GUILTY PLEA.
II. MR. TRIUMPH'S GUILTY PLEA WAS CONSTITUTIONALLY DEFICIENT BECAUSE DESPITE HIS DEFENSE COUNSEL'S KNOWLEDGE THAT HE WAS A RESIDENT ALIEN, DEFENSE COUNSEL GROSSLY MISINFORMED DEFENDANT REGARDING DEPORTATION HEREBY RENDERING HIS GUILTY PLEA NOT KNOWING AND VOLUNTARY.
III. MR. TRIUMPH'S GUILTY PLEA WAS CONSTITUTIONALLY DEFICIENT BECAUSE DESPITE HIS DEFENSE COUNSEL'S KNOWLEDGE THAT HE WAS A RESIDENT ALIEN, DEFENSE COUNSEL NEVER REQUESTED JUDICIAL RECOMMENDATION AGAINST DEPORTATION AS TO BAR USE OF CONVICTION AS BASIS FOR DEPORTATION.
IV. THE ENTRY OF JUDGMENT AND THE IMPOSITION OF SENTENCE WAS IN VIOLATION OF THE CONSTITUTION AND LAWS OF THE UNITED STATES AND THE CONSTITUTION OF THE STATE OF NEW JERSEY.
Our review of the record convinces us that defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Defendant did not raise a genuine question of manifest injustice warranting an order setting aside this guilty plea. Moreover, any claims that he could have raised on direct appeal or by way of petition for post-conviction relief have been time-barred for many years. R. 3:22-12(a).
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