STATE OF NEW JERSEY VS. JORGE ECHEVERRY (05-04-0479, HUDSON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 13, 2018
• Docket: A-0079-17T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0079-17T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JORGE ECHEVERRY, a/k/a GATO,

Defendant-Appellant. ______________________________

Submitted August 7, 2018 – Decided August 13, 2018

Before Judges Sabatino and Mawla.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-04-0479.

Michael Pastacaldi, attorney for appellant.

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Svjetlana Tesic, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Jorge Echeverry appeals from the trial court's

August 30, 2017 order denying his petition for post-conviction

relief ("PCR") without an evidentiary hearing. We affirm. In April 2005, defendant was named with others in a multi-

count indictment. The indictment charged him with nine counts of

distribution of a controlled dangerous substance ("CDS"),

including the distribution of CDS within 1000 feet of a school,

and CDS distribution within 500 feet of a public housing facility;

four counts of possession of CDS with the intent to distribute it;

and one count of operating a CDS facility.

Defendant entered into a negotiated plea agreement with the

State, in which he agreed to plead guilty to an amended charge of

third-degree possession of CDS with the intent to distribute,

N.J.S.A. 2C:35-5(a)(1), reduced from a first-degree charge. In

addition to the possessory downgrade, the State agreed to dismiss

all other charges against defendant.

Defendant and his counsel appeared before the trial court on

September 14, 2005, at which time he voluntarily entered a guilty

plea to the amended possessory count, consistent with the terms

of the plea agreement. Defendant was sentenced to two years of

probation, largely based upon the application of mitigating

sentencing factor twelve, N.J.S.A. 2C:44-1(b)(12). Defendant did

not appeal his judgment of conviction.

In March 2017, defendant filed a PCR petition, claiming his

former counsel was ineffective for allegedly failing to advise

him, as a non-citizen, about the adverse immigration consequences

2 A-0079-17T3 of his guilty plea. Defendant also sought to withdraw his guilty

plea. After hearing oral argument, the PCR judge denied the

petition and found no need for an evidentiary hearing. The judge

also rejected defendant's belated request to withdraw his plea.

On appeal, defendant repeats his argument that his former

counsel was ineffective because counsel allegedly failed to advise

him the plea might result in his deportation. He asserts that his

counsel knew he was not a citizen, and that there is nothing in

the record to show counsel advised him of immigration consequences.

He notes that question number seventeen on the plea form, requiring

him to acknowledge as a non-citizen that he could be deported, was

marked both "yes" and "n/a," the latter of which was crossed out

and not initialed.

Defendant argues he was entitled to an evidentiary hearing

because of the alleged discrepancy on the plea form. Defendant

concedes his PCR application was filed beyond the five-year time

bar of Rule 3:22-12, but argues there was excusable neglect for

his delay. Defendant asserts he never signed an appeals rights

form and claims he was never informed about the PCR time bar.

In his briefs, defendant presents the following points for

our consideration:

3 A-0079-17T3 POINT ONE

THE TRIAL COURT ERRED IN DENYING MR. ECHEVERRY'S CLAIM THAT TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO ADVISE HIM OF HIS IMMIGRATION CONSEQUENCES ASSOCIATED WITH THE PLEA.

POINT TWO

MR. ECHEVERRY IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT THREE

THE TRIAL COURT ERRED IN TIME BARRING MR. ECHEVERRY'S PETITION PURSUANT TO R. 3:22-12.

POINT FOUR

THE TRIAL COURT ERRED BY DENYING MR. ECHEVERRY'S MOTION TO WITHDRAW HIS PLEA.

REPLY POINT ONE

THE STATE'S INTERPRETATION OF STATE V. MOLINA AS NON-APPLICABLE TO MR. ECHEVERRY'S PETITION FOR POST-CONVICTION RELIEF IS INCORRECT.

REPLY POINT TWO

THE STATE'S RELIANCE ON STATE V. CHUNG AS APPLICABLE TO MR. ECHEVERRY'S PETITION FOR POST-CONVICTION RELIEF IS MISPLACED.

REPLY POINT THREE

THE TRIAL COURT ERRED BY DENYING MR. ECHEVERRY'S MOTION TO WITHDRAW HIS PLEA.

4 A-0079-17T3 REPLY POINT FOUR

MR. ECHEVERRY IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.

Having considered these points in light of the record and the

applicable law, we affirm the denial of defendant's PCR petition.

As this court explained in State v. O'Donnell, 435 N.J. Super.

351, 368 (App. Div. 2014), the analysis of a defendant's PCR

petition and a motion to withdraw a guilty plea are governed by

two distinct legal criteria. Applying those separate criteria,

defendant's claims for relief were properly rejected.

We begin with the PCR petition. For the sake of discussion,

we shall assume, but not decide, that defendant's PCR petition is

not time-barred. We thus choose to address the merits of his

claims of ineffective assistance of plea counsel.

The Supreme Court of the United States held in 2010 that

criminal defense attorneys are affirmatively obligated to inform

their clients about the deportation risks of entering a guilty

plea. Padilla v. Kentucky, 559 U.S. 356, 367-69 (2010); see also

Lee v. United States, 582 U.S. ___, ___, 137 S. Ct. 1958, 1965

(2017) (holding that, when a defendant pled guilty prior to trial

based on incorrect advice from counsel about deportation

consequences, the court must determine "whether the defendant was

prejudiced by the 'denial of the entire judicial proceeding . . .

5 A-0079-17T3 to which he had a right.'") (quoting Roe v. Flores-Ortega, 528

U.S. 470, 483 (2000)).

The Court has determined that Padilla does not apply

retroactively. Chaidez v. United States, 568 U.S. 342, 347 (2013).

The New Jersey Supreme Court has likewise held that Padilla is a

new rule to be applied prospectively only. State v. Gaitan, 209

N.J. 339, 371 (2012); see also State v. Santos, 210 N.J. 129, 143

(2012). Thus, for convictions such as defendant's that preceded

Padilla, constitutionally ineffective assistance of plea counsel

can only be established where counsel provided affirmatively

misleading advice to a defendant about the immigration

consequences of his or her guilty plea. See State v. Nuñez-Valdéz,

200 N.J. 129, 139-43 (2009) (where defense counsel affirmatively

misinformed the defendant there would be no immigration

consequences arising from his plea); see also Santos, 210 N.J. at

143.

Defendant has failed to present a prima facie claim of

ineffectiveness relating to his former counsel's conduct, under

the then-applicable standards of Nuñez-Valdéz concerning a

client's risks of deportation. The record is bereft of any

competent proof that such affirmative misadvice was provided to

defendant here. The plea form does not support defendant's claim,

as his "Yes" answer to Question #17 acknowledging his awareness

6 A-0079-17T3 of possible deportation is circled and not stricken out, unlike

the crossed-out "N/A" response to that query.

Moreover, defendant provides no proof that his counsel gave

him affirmative misadvice that he would not be deported. At most,

defendant asserts he received no advice at all, which does not

transgress pre-Padilla standards. Because defendant presented no

prima facie claim of an ineffective assistance of counsel, there

was no need for the trial court to conduct an evidentiary hearing.

State v. Preciose, 129 N.J. 451, 462-63 (1992).

The trial court likewise did not err in denying defendant's

motion to withdraw his 2005 guilty plea. Defendant does not

satisfy the factors of State v. Slater, 198 N.J. 145, 150 (2009).

He does not advance or substantiate a colorable claim of innocence.

Moreover, defendant's negotiated plea bargain to a third-degree

offense ultimately yielded him a very favorable non-custodial

disposition on an indictment that had charged him with multiple

first-degree and second-degree crimes and a lengthy mandatory

custodial term. In addition, the State clearly would be prejudiced

in now having to prosecute this stale drug case more than a decade

after the charges were brought.

Defendant's remaining arguments are plainly without merit and

do not warrant discussion. R. 2:11-3(e)(2).

Affirmed.

7 A-0079-17T3