On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-01-0041.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2012
Before Judges Harris and Hoffman.
Defendant Travis Mendez, a resident alien born in Jamaica, appeals from the August 12, 2010 Law Division order denying his petition for post-conviction relief (PCR). For the reasons that follow, we dismiss defendant's appeal as moot.
On October 4, 2005, a package containing nine pounds of marijuana, with a street value of $20,000, was delivered to defendant's home in New Brunswick. Defendant was expecting the package and knew that it contained marijuana. Prior to delivery, police were alerted that a package containing controlled dangerous substances (CDS) had been shipped from California to be delivered to defendant's home. A police canine confirmed the package contained marijuana.
On January 11, 2006, a grand jury returned a three-count indictment against defendant relating to the marijuana possession. On July 21, 2006, defendant entered a plea to count two of the indictment, amended to charge him with third-degree possession of marijuana with the intent to distribute, with the State dismissing the remaining counts of the indictment.*fn1 The sentence recommendation was a probationary term with the condition of 364 days in the county jail. On September 22, 2006, defendant was sentenced to a five-year probationary term with the condition of 364 days in the county jail suspended. Defendant did not file a direct appeal from his conviction.
In August 2009, the United States Department of Homeland Security served on defendant a notice to appear before an immigration court because he was subject to removal from the country based on his 2006 conviction for possession of marijuana with the intent to distribute.
On December 2, 2009, defendant filed a petition for PCR. In support of his petition, he filed a certification stating that his plea counsel did not discuss with him the possibility of being deported, adding, "[h]ad I known such a possibility existed, I may have made a different decision relative to plea bargaining." On August 12, 2010, the PCR court heard argument on defendant's petition. During the hearing, defendant's attorney advised the court, "[m]y client's position today is he doesn't want to vacate his plea . . . . He's looking at a lot of time. [He would] rather go to Jamaica than State Prison." Defendant's attorney further indicated defendant did not want to vacate his guilty plea unless the State was willing to negotiate a plea to a lesser offense that would not expose him to deportation. The State refused. In light of defendant's position, the PCR court denied the petition based on the absence of prejudice resulting from any putative ineffective assistance of counsel as defendant no longer sought any viable PCR.
Despite the avowed position of defendant that he no longer sought to vacate his guilty plea, this appeal followed, with defendant raising the following arguments:
POINT I: NO OTHER CONCLUSION CAN BE REACHED BUT THAT [THE] COURT BELOW ERRED IN CONCLUDING DEFENDANT HAD NOT BEEN DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial Counsel Was Ineffective By Failing to Inform Defendant Of The Mandatory Deportation Consequences After Entering A Guilty ...