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State v. Alfaro

Superior Court of New Jersey, Appellate Division

May 21, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
JUAN ALFARO, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 29, 2013

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-04-0213.

Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief).

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

Before Judges Parrillo and Sabatino.

PER CURIAM

Defendant Juan Alfaro appeals from an order of Law Division denying his petition for post-conviction relief (PCR). We affirm.

Defendant is a native of Guatemala who came to the United States in 1989. He is not a United States citizen. On December 7, 2007, in exchange for the State's sentencing recommendation of an eight-year prison term with no period of parole ineligibility, defendant pled guilty to an indictment charging him with two counts of third-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); one count of second-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2); and one count of second-degree conspiracy to distribute cocaine, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2). At the plea hearing, defendant admitted that he conspired with a cohort to sell cocaine on three occasions, the latest of which on March 16, 2007, involved the sale of over one-half ounce of cocaine to a third party, with defendant receiving $800 for his part in the transaction.

The judge at the plea hearing did not question defendant about the possibility that he might be deported. The risk of deportation, however, was addressed in a written plea form signed by defendant as part of the record of his guilty plea. Question 17 on the plea form asked: "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty?" Defendant answered "yes." In open court, defendant acknowledged that he had discussed the questions and answers on the plea form with his attorney and had enough time to do so, that the answers were accurate, and that he had no questions to ask the judge about the contents of the plea form.

On February 8, 2008, the judge sentenced defendant to an aggregate seven years flat, reducing the bargained-for eight-year term recommended by the State. Defendant did not file a direct appeal.

Facing deportation by federal authorities, [1] defendant filed the instant PCR petition in June 2010, alleging ineffective assistance of counsel for failing to, among other things, advise him that he would be deported as a result of his guilty plea. Defendant also sought to withdraw his guilty plea. The PCR judge conducted an evidentiary hearing to address defendant's claim of ineffective assistance of counsel, at which defendant and his plea counsel testified. Plea counsel, a certified criminal defense attorney who predominantly represents Spanish-speaking clients, testified that it has been his regular practice to advise foreign nationals such as defendant that they shall be deported, rather than may be deported, when they have committed crimes of this nature. He specifically recalled rendering this advice at the jail with defendant before the plea was entered. In his own testimony, defendant denied meeting with counsel at the jail and claimed that he had never been told by his attorney that deportation would be mandatory for this sort of offense.

At the close of evidence, the PCR judge denied defendant's petition, concluding:

This court finds that [plea counsel] met with [defendant] multiple times to discuss discovery and trial strategy, both in jail and before court appearances. This court also finds [plea counsel] ...

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