On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Accusation No. A-360-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 17, 2010 - Decided Before Judges Axelrad and J. N. Harris.
This is an appeal from the denial of defendant Marcos Barrios's motion to vacate a guilty plea entered more than eight years ago. We affirm.
In October 2009, defendant filed a motion to vacate a February 14, 2002, guilty plea on grounds that he was not informed of the deportation consequences of his plea.*fn1
Defendant's plea was for committing the crime of third-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3).
Judge Bruce A. Gaeta conducted the plea allocution hearing and accepted the plea. At that proceeding defendant was represented by an attorney. Defendant completed the requisite plea form and affirmatively stated that he "read it and went over it with [his] attorney before [he] signed it." His attorney neither questioned defendant as to his citizenship and residency status in the United States, nor did defendant ask about the consequences of his plea on his residency status. During the plea allocution hearing, the issue of defendant's citizenship was never raised.
On December 17, 2002, defendant was sentenced by Judge Patrick J. Roma in accordance with the plea arrangement to two years probation. Defendant did not pursue a direct appeal, and as far as the record discloses, defendant served his sentence uneventfully.
According to defendant, seven years later, in May 2009, he appeared in a municipal court to pay a fine on a suspended license charge. There, he was informed that he would be subject to deportation as a result of the conviction entered in 2002. See 8 U.S.C.A. 1227(a)(2)(A)(iii). He further asserts that "[s]ince May 18, 2008, [he has] been incarcerated, awaiting an immigration hearing on the deportation issue."
In October 2009, defendant filed the instant motion, which was heard by the sentencing judge. In a written opinion dated January 19, 2010, Judge Roma denied the motion, finding:
[F]undamental fairness does not mandate withdrawal of defendant's guilty plea. Defendant committed a crime and voluntarily pled guilty to that crime. He indicated that he understood he could be deported as a result of his guilty plea, but he pled to the crime anyway.
The [c]court declines to find any reason to afford defendant withdrawal of guilty plea. Defendant fails to meet either of the Strickland[*fn2 ] requirements, and there exists no fundamental fairness exception. Counsel did not offer the defendant ineffective assistance of counsel, and despite defendant's contrary claim, there is no reason to believe that, but for counsel's advice, defendant would not have pled guilty to his offense.
On appeal, defendant raises the ...