September 10, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
SANDRO RODRIGUEZ, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 30, 2013
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-01-0142.\
Fernando Iamurri, P.C., attorneys for appellant (Fernando Iamurri, on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).
Before Judges Espinosa and Hoffman.
Defendant Sandro Rodriguez appeals from the June 21, 2012 Law Division order denying his petition for post-conviction relief (PCR). We affirm.
On January 21, 2003, a Bergen County grand jury indicted defendant on two counts of third-degree distribution of a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3). In accordance with a negotiated plea agreement, on April 14, 2003, defendant pled guilty to count one of the indictment. In exchange, the State agreed to dismiss the second count and recommend a sentence of 180 days incarceration and probation. After obtaining a factual basis, the judge accepted the plea.
On June 20, 2003, the judge dismissed count two and sentenced defendant to two years of probation, conditioned on ninety days imprisonment in the Bergen County Jail, and imposed appropriate fines and penalties. Defendant did not file a direct appeal from his conviction and sentence.
On May 1, 2012, defendant filed his petition for PCR, alleging, for various reasons, ineffective assistance of counsel. On June 21, 2012, the PCR judge found that defendant had not established a prima facie case of ineffective assistance of counsel and denied the petition without conducting an evidentiary hearing. This appeal followed.
On appeal defendant raises the following arguments for our consideration:
SINCE PETITIONER WAS DENIED HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL GUARANTEED BY THE UNITED STATES CONSTITUTION AND ARTICLE 1, Par. 10, OF THE NEW JERSEY CONSTITUTION, THE LOWER COURT ERRED BY DENYING PETITIONER'S POST-CONVICTION RELIEF MOTION.
A. The Lower Court Erred When Denying Petitioner's Motion For Reconsideration Since Petitioner Has Established A Prima Facie Case of Ineffective Assistance Of Counsel.
B. Petitioner's Trial Counsel Failed To Provide Petitioner With Effective Assistance Since He Failed To Inform Petitioner That His Plea Would Result In Certain Deportation. As Such, The Lower Court Erred In Its Finding That Defense Counsel Had No Affirmative Duty to Advise Petitioner That Deportation Was A Certainty.
After considering defendant's arguments, in light of the record and the applicable law, we find them without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We add the following comments.
Defendant claims that he received ineffective assistance from his trial counsel due to: (1) failure to move to dismiss count two based on improper venue; (2) failure to discuss evidence and various defenses and motions; and (3) failure to advise him that a guilty plea would result in deportation. Because defendant failed to establish a prima facie case on any of these claims, the PCR judge properly denied his petition without conducting a plenary hearing.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). "First, the defendant must show . . . that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693). Second, the defendant must show that he suffered prejudice due to counsel's deficient performance. Ibid. To establish prejudice, the defendant must show by "a reasonable probability" that the deficient performance "materially contributed to defendant's conviction[.]" Id. at 58.
The determination on whether to hold an evidentiary hearing on an ineffective assistance of counsel claim is left to the sound discretion of the PCR judge. State v. Preciose, 129 N.J. 451, 462 (1992). "An evidentiary hearing . . . is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-10 (2013).
As to defendant's first argument, he contends that his counsel should have moved to dismiss count two because it dealt with distribution of cocaine in Passaic, rather than Bergen County. Rule 3:14-1(a) provides that "if an offense is committed in several counties prosecution may be had in any such counties." Here, count one was based on distribution that occurred in Bergen County, while count two was based on distribution that occurred in Passaic County. Because the offenses were part of a common scheme, and took place in two counties, defendant could have been indicted for both offenses in either county. Thus, counsel was not deficient for failing to file a motion to dismiss count two due to improper venue, as it would have been unsuccessful.
As to defendant's second argument, there is no competent evidence showing that counsel failed to discuss evidence and various defenses and motions with him. During the plea hearing defendant admitted to voluntarily distributing cocaine to an undercover police officer. There is nothing in the record to support a defense of entrapment as defendant suggests. Additionally, defendant offers no evidence to show a motion to suppress the cocaine would have been successful. See State v. Roper, 362 N.J.Super. 248, 255 (App. Div. 2003) ("In an ineffective assistance claim based on failure to file a suppression motion, the prejudice prong requires a showing that the motion would have been successful."). Thus, there was no evidence or defense strategy that counsel should have addressed with defendant that would have had an impact on the outcome of the case.
Finally, defendant's third argument rests on the United States Supreme Court's decision in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), which held that an attorney's failure to inform a client about the deportation risks of pleading guilty to a criminal charge runs afoul of the Sixth Amendment right to counsel. However, in State v. Gaitan, our Supreme Court held that this rule is not entitled to retroactive application. 209 N.J. 339, 371-72 (2012). Because defendant pled guilty in 2003, several years prior to Padilla, he could not rely on Padilla to support his PCR application. Accordingly, defendant was required to set forth a prima facie case, pursuant to State v. Nunez-Valdez, 200 N.J. 129 (2009), that counsel provided him affirmative misinformation regarding the potential immigration consequences of his plea, which he failed to do. Gaitan, supra, 209 N.J. at 374. According to the record, defendant acknowledged on his plea form that he was aware he could be deported, and informed the plea judge that counsel discussed the immigration consequences of his plea with him. Thus, he cannot legitimately claim he was unaware that he could be deported based on his plea.
In summary we are satisfied that defendant failed to set forth a prima facie claim of ineffective assistance of counsel Nothing in the record indicates that counsel's performance was objectively deficient or defendant suffered prejudice due to counsel's performance Defendant reached a favorable plea agreement with the State and received a favorable sentence Therefore we find no basis to disturb the judge's decision to deny defendants petition for PCR