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State v. Luna

Superior Court of New Jersey, Appellate Division

September 13, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
LUCAS A. LUNA, Defendant-Appellant,

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 7, 2013

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 87-10-0846.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Reema Sethi Kareer Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

Before Judges Lihotz and Ostrer.

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR). We affirm.

On October 20, 1987, defendant was indicted in Morris County for possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1), possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5a(1) and b(2), and conspiracy to possess cocaine with the intent to distribute, N.J.S.A. 2C:5-2.

On February 22, 1988, defendant pleaded guilty to the possession-with-intent-to-distribute charge. The State agreed to dismiss the balance of the indictment and to recommend a sentence of 364 days in the Morris County Jail and four years of probation. On the plea form, defendant indicated that he was satisfied with the advice received from his lawyers; he understood he would have a criminal record; and he understood that if he were "not a United States citizen or national, [he] may be deported by virtue of [his] plea of guilty." On May 20, 1988, the court entered the judgment of conviction and sentenced defendant in accordance with the plea agreement.[1] Defendant filed no direct appeal.

In 1989, defendant violated probation, and when he did not appear at the scheduled hearing a warrant was issued for his arrest. He was arrested on new drug charges in November 1994. Thereafter, on March 10, 1995, he was sentenced to five years for violating probation.

In November 1994, defendant was indicted in Somerset County on new drug charges: conspiracy to possess cocaine with the intent to distribute, N.J.S.A. 2C:5-2, and possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5a(1) and b(1). A jury trial was held between February 26 and March 6, 1996, and defendant was convicted on both counts. On May 31, 1996, the court merged the conspiracy count into the possession count, and sentenced defendant to an extended term of fifty years, with sixteen years and eight months of parole ineligibility.

Thereafter, defendant, a citizen of the Dominican Republic, was ordered deported from the United States upon completion of his custodial sentence.

On September 14, 2009, defendant filed a pro se petition for post-conviction relief under Rule 3:22-1. He claimed he received ineffective assistance of counsel with respect to his 1988 Morris County guilty plea because: he was innocent of the charges; he was not advised of the immigration consequences of his plea (purportedly, when defendant asked about the potential immigration consequences, his attorney told him "don't worry about it"); and if he had been adequately advised he ...


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