NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0933-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLIAM PINEIDO-AGUILAR,
Defendant-Appellant. _____________________________
Submitted January 8, 2019 – Decided January 30, 2019
Before Judges Vernoia and Moynihan.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 99-05-0445.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique D. Moyse, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant William Pineido-Aguilar appeals from a July 31, 2017 order
denying his post-conviction relief (PCR) petition without an evidentiary
hearing. Based on our review of the record in light of the applicable law , we
affirm.
I.
In 1999, defendant was charged in Indictment No. 99-05-0445 with three
drug offenses, one of which was third-degree possession of a controlled
dangerous substance, cocaine, with intent to distribute within 1000 feet of school
property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a). He was also charged in
Indictment No. 99-04-0389 with five offenses, one of which was also third-
degree possession of a controlled dangerous substance, cocaine, with intent to
distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A.
2C:35-5(a).1
On June 7, 1999, defendant pleaded guilty pursuant to a plea agreement
to the two counts of third-degree possession of a controlled dangerous substance,
cocaine, with intent to distribute within 1000 feet of school property, N.J.S.A.
1 The record does not allow an identification of the remaining four charges in Indictment No. 99-04-0389. Defendant's plea form, however, reflects that those charges were to be dismissed at sentencing on the charges to which defendant pleaded. A-0933-17T4 2 2C:35-7 and N.J.S.A. 2C:35-5(a), charged in the separate indictments. Two
months later, the court sentenced defendant to concurrent three-year custodial
terms with concurrent one-year periods of parole ineligibility on each of the
charges.2 Defendant did not file a direct appeal.
Seventeen years later, on July 22, 2016, defendant filed a pro se PCR
petition claiming his plea counsel was ineffective by failing to inform him about
the immigration consequences of his plea under Indictment No. 99-05-0445.3
More particularly, the petition asserted that defendant's plea counsel was
ineffective by failing to: "advise [him] that by accepting the plea he was
subject[] to deportation," "inform him of the potential threat of deportation,"
"inform[] him that . . . accepting the plea agreement . . . would trigger the threat
of deportation," "inform him that 'it is [the] policy of Immigration and Custom[s]
Enforcement (I.C.E.) to deport any non-citizens who are convicted of . . . felony
[offenses],'" "advise that there was a risk of deportation," "fully explain the
immigration consequences of the plea," and advise him "that his plea would
2 The record suggests defendant was on juvenile probation at the time of the commission of the offenses. The custodial term imposed by the court was made concurrent to any disposition made on defendant's violation of probation in a Family Part juvenile matter. 3 Defendant did not seek relief from his conviction under Indictment No. 99 - 04-0389 in his PCR petition or before the PCR court. A-0933-17T4 3 subject him to a 'virtually automatic' deportation." Defendant claimed that as a
result of plea counsel's "advice failure," an immigration detainer was placed on
him on October 19, 2015, he was taken into custody at some unspecified time
and is subject to deportation.
Following the assignment of counsel on his PCR petition, defendant filed
a certification again asserting his plea counsel was ineffective. Defendant stated
he would not have accepted the plea agreement and pleaded guilty if he had
known of the plea's immigration consequences. He also asserted that it was not
until he was taken into custody by I.C.E. that he became aware of the
immigration consequences of his plea.
In an oral opinion following oral argument on defendant's petition, the
PCR judge rejected the State's contention that the petition is time-barred under
Rule 3:22-12. On the petition's merits, the judge determined defendant failed to
establish a prima facie claim of ineffective assistance of counsel under the
standard established in Strickland v. Washington, 466 U.S. 668, 687 (1984).
Relying solely on his personal knowledge of plea counsel, the judge said plea
counsel was "an experienced criminal defense attorney, having practiced
primarily criminal law since the day that [counsel] went into private practice"
and that he had "observed [plea counsel] in court." The judge concluded
A-0933-17T4 4 defendant failed to demonstrate plea counsel's performance was deficient "under
the applicable case law" based on a finding "[plea counsel] is more than
proficient in representing criminal defendants."
The judge also found defendant failed to show prejudice from his
counsel's alleged error. The judge found defendant received a "generous plea
offer and . . . faced a lot more time on [the] matter if he were . . . convicted."
The judge further observed that defendant completed the plea form, "indicated
that he was a citizen" and responded on the plea form to Question 17, which
asked if defendant "under[stood] that if [he is] not a citizen of the United States
or a national [he] may be deported by virtue of [his] guilty plea" by circling
"N/A," meaning "not applicable." The judge found "it hard to believe that
[defendant] found out [eighteen] years later . . . that he wasn't a citizen," and
concluded defendant presented no support, other than his bald assertion, that he
would not have pleaded guilty if he knew the immigration consequences of his
plea.
The judge also found defendant failed to establish an entitlement to
withdraw his plea under the standard articulated by our Supreme Court in State
v. Slater, 198 N.J. 145 (2009). The judge found defendant failed to assert a
colorable claim of innocence and did not present "reasons for withdrawal . . .
A-0933-17T4 5 strong enough" to allow withdrawal of the plea. The court further found
defendant's plea was the product of a plea agreement and that withdrawal of the
plea would result in unfair prejudice to the State.
The court entered a July 31, 2017 order denying defendant's PCR petition
without an evidentiary hearing. This appeal followed.
Defendant presents the following argument for our consideration:
POINT ONE
MR. PINEIDO-AGUILAR IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR MISINFORMING HIM ABOUT THE DEPORTATION CONSEQUENCES OF HIS PLEA AND ON HIS CLAIM THAT HE SHOULD BE ALLOWED TO WITHDRAW HIS PLEA BECAUSE IT WAS NOT KNOWING OR VOLUNTARY.
II.
The Sixth Amendment to the United States Constitution and Article I ,
Paragraph 10 of the New Jersey Constitution guarantee that a defendant in a
criminal proceeding has the right to the assistance of counsel in his defense. The
right to counsel includes "the right to the effective assistance of counsel." State
v. Nash, 212 N.J. 518, 541 (2013) (quoting Strickland, 466 U.S. at 686).
A-0933-17T4 6 In Strickland, the Court established a two-part test, later adopted by our
Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), to determine whether a
defendant has been deprived of the effective assistance of counsel. Strickland,
466 U.S. at 687. Under the first prong of the Strickland standard, a petitioner
must show that counsel's performance was deficient. Ibid. It must be
demonstrated that counsel's handling of the matter "fell below an objective
standard of reasonableness," id. at 688, and that "counsel made errors so serious
that counsel was not functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment," id. at 687.
Under the second prong of the Strickland standard, a defendant "must
show that the deficient performance prejudiced the defense." Ibid. There must
be a "reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Id. at 694.
A petitioner must establish both prongs of the Strickland standard to
obtain a reversal of the challenged conviction. Id. at 687; Nash, 212 N.J. at 542;
Fritz, 105 N.J. at 52. A failure to satisfy either prong of the Strickland standard
requires the denial of a PCR petition. Strickland, 466 U.S. at 700.
We review the legal conclusions of a PCR court de novo. State v. Harris,
181 N.J. 391, 415 (2004). The de novo standard of review also applies to mixed
A-0933-17T4 7 questions of fact and law. Id. at 419-20. Where, as here, an evidentiary hearing
has not been held, it is within our authority "to conduct a de novo review of both
the factual findings and legal conclusions of the PCR court." Id. at 421.
Defendant argues a reversal is warranted because the judge made findings
of fact lacking evidentiary support and relied on his personal knowledge of plea
counsel's professional experience and expertise as the basis for finding
defendant failed to demonstrate counsel's performance was deficient. The
judge's personal knowledge concerning plea counsel was irrelevant, did not
constitute competent evidence and should not have been considered, much less
relied upon, to make his determinations in this matter. See Wallington Home
Owners Ass'n v. Borough of Wallington, 130 N.J. Super. 461, 465 (App. Div.)
("A judge's private knowledge is entitled to no weight at all."), aff'd o.b., 66 N.J.
30 (1974); Amadeo v. Amadeo, 64 N.J. Super. 417, 424 (App. Div. 1960)
(finding "[a] judge's private knowledge is no substitute for required proof" and
"is entitled to no weight" in making factual determinations). Moreover, we
agree there is no support in the record for the court's finding defendant said he
was a citizen during his plea proceeding. The record shows defendant never
made such a statement.
A-0933-17T4 8 The court's errors, however, do not require reversal of the challenged
order. We conduct a de novo review of the record, Harris, 181 N.J. at 421,
without regard to the judge's personal knowledge concerning plea counsel and
determine the validity of the court's order, not its reasoning, see Do-Wop Corp.
v. City of Rahway, 168 N.J. 191, 199 (2001) (explaining "appeals are taken from
orders and judgments and not from . . . reasons given for the ultimate
conclusion"). Our de novo review reveals that defendant failed to sustain his
burden of establishing a prima facie claim of ineffective assistance of counsel
under the Strickland standard.
"Although a demonstration of prejudice constitutes the second part of the
Strickland analysis, courts are permitted leeway to choose to examine first
whether a defendant has been prejudiced . . . and if not, to dismiss the claim
without determining whether counsel's performance was constitutionally
deficient." State v. Gaitan, 209 N.J. 339, 350 (2012) (citations omitted). In the
context of a PCR petition challenging a guilty plea based on ineffective
assistance of counsel, the second prong is established when the defendant
demonstrates a "reasonable probability that, but for counsel's errors, [the
defendant] would not have pled guilty and would have insisted on going to trial."
State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (alteration in original) (quoting
A-0933-17T4 9 State v. DiFrisco, 137 N.J. 434, 457 (1994)). A defendant must further show "it
would have been rational for him to decline the plea offer and insist on going to
trial and, in fact, that he probably would have done so." State v. Maldon, 422
N.J. Super. 475, 486 (App. Div. 2011) (citing Padilla v. Kentucky, 559 U.S. 356,
372 (2010)).
In his pro se petition and subsequent certification, defendant repeatedly
states he would not have pleaded guilty and would have proceeded to trial if he
had been aware of the immigration consequences of his plea. Those bald
assertions are insufficient to satisfy defendant's burden under Strickland's
second prong because they are untethered to any claim or showing it would have
been rational for him to reject the plea agreement and proceed to trial. See
Padilla, 559 U.S. at 372 (2010). Defendant's petition, certification and briefs
simply do not address the issue.
In addition, the record shows defendant received an advantageous plea
agreement and otherwise provides no basis to conclude it would have been
rational for defendant to reject the plea offer and proceed to trial. Defendant
was confronted with eight separate criminal charges in two indictments and
faced the prospect of consecutive sentences if he was convicted of offenses
under both indictments. See generally N.J.S.A. 2C:44-5(a) (authorizing
A-0933-17T4 10 imposition of consecutive sentences where "multiple sentences of imprisonment
are imposed"); State v. Yarbough, 100 N.J. 627, 644 (1985) (explaining that the
considerations determining the appropriateness of a consecutive sentence
include whether "the crimes and their objectives were predominantly
independent of each other," "the crimes were committed at different times or
separate places," and "the convictions for which the sentences are to be imposed
are numerous").
Defendant faced up to five years of imprisonment on each of the two third-
degree offenses to which he pleaded guilty, see N.J.S.A. 2C:43-6(a)(3), and thus
was exposed to consecutive sentences totaling ten years on those charges alone
and up to a five-year period of parole ineligibility, see N.J.S.A. 2C:43-6(b).4
However, defendant's plea agreement limited his custodial exposure on those
charges to three years with a one-year parole ineligibility period, and the court
sentenced defendant in accordance with the agreement. In any event, defendant
failed to present any evidence or make any showing that, had he been informed
of the immigration consequences of his plea, it would have been rational to reject
4 It is not possible to determine defendant's sentencing exposure on the four charges under Indictment No. 99-04-0389 that were dismissed under the plea agreement. As noted, the record does not identify those charges. A-0933-17T4 11 the plea offer and proceed to trial and he probably would have done so. Maldon,
422 N.J. Super. at 486.
Defendant's failure to sustain his burden under the second prong of the
Strickland standard requires the denial of his PCR petition. Strickland, 466 U.S.
at 700. Because defendant failed to satisfy his burden of establishing prejudice
under the second prong of the Strickland standard, we are satisfied that the court
correctly denied defendant's PCR petition. We therefore do not need to address
defendant's claim that his plea counsel's performance was deficient by failing to
inform him about the immigration consequences of his plea. See Nash, 212 N.J.
at 543-44 (finding that defendant's failure to establish one prong of the
Strickland standard renders it unnecessary to consider the other prong).
We reject defendant's claim that the court erred by denying his request for
an evidentiary hearing. 5 A PCR court should grant an evidentiary hearing if a
defendant establishes a prima facie claim in support of PCR. State v. Preciose,
129 N.J. 451, 462-63 (1992). As noted, however, defendant failed to establish
a prima facie ineffective assistance of counsel claim because he did not
5 Because we affirm the court's order denying defendant's PCR petition and request for an evidentiary hearing on the merits, it is unnecessary to address the State's contention that the court erred by finding the petition was timely filed under Rule 3:22-12(a)(1). A-0933-17T4 12 demonstrate prejudice under the second prong of the Strickland standard,
Strickland, 466 U.S. at 700, and therefore no evidentiary hearing was required,
see State v. O'Donnell, 435 N.J. Super. 351, 370 (App. Div. 2014) ("To obtain
an evidentiary hearing on a PCR petition, a defendant must establish a prima
facie case for relief, material issues of disputed fact, and show that an
evidentiary hearing is necessary to resolve the claims.").
Defendant also claims that the court erred by finding he was not entitled
to withdraw his plea. We analyze defendant's request to withdraw his guilty
plea differently than his petition for PCR. "The two requests for relief are
distinct, and governed by different rules of court. Compare R. 3:21-1 (motion
to withdraw plea), with R. 3:22 (PCR). They must be considered separately."
O'Donnell, 435 N.J. Super. at 368.
"A motion to withdraw a plea of guilty or non vult shall be made before
sentencing, but the court may permit it to be made thereafter to correct a
manifest injustice." R. 3:21-1; see also Slater, 198 N.J. at 156 (explaining that
a defendant seeking to withdraw a plea following sentencing "must show [his or
her] conviction was manifestly unjust"). A defendant's burden of proof in a
motion to withdraw a guilty plea increases the longer the delay in bringing the
motion because "the court weighs more heavily the State's interest in finality
A-0933-17T4 13 and applies a more stringent standard." O'Donnell, 435 N.J. Super. at 370
(quoting State v. Norman, 405 N.J. Super. 149, 160 (App. Div. 2009)). "[T]he
trial court's denial of defendant's request to withdraw his guilty plea will be
reversed on appeal only if there was an abuse of discretion which renders the
lower court's decision clearly erroneous." Id. at 372 (quoting State v. Simon,
161 N.J. 416, 444 (1999)).
"Consideration of a plea withdrawal request can and should begin with
proof that before accepting the plea, the trial court followed the dictates of Rule
3:9-2." Slater, 198 N.J. at 155. The Rule requires the court to determine if
"there is a factual basis for the plea and that the plea is made voluntarily, not as
a result of any threats or of any promises or inducements not disclosed on the
record, and with an understanding of the nature of the charge and the
consequences of the plea." Ibid. (quoting R. 3:9-2). The analysis of a plea
withdrawal application, however, "cannot end there." Ibid. "To evaluate a plea
withdrawal motion thoroughly and properly, other pertinent issues must be
considered in the context of the specific facts of a case" and "the competing
interests of the State and the defendant." Ibid.
Defendant claims his 1999 plea violated Rule 3:9-2 because his attorney's
failure to advise him about the immigration consequences of his plea deprived
A-0933-17T4 14 him of the "understanding of the . . . consequences of the plea" required by the
Rule. At the time defendant pleaded guilty in 1999, the law required only that
a defendant be informed of the penal consequences of a plea agreement, and
immigration consequences of a plea were considered "collateral" and not penal
consequences of a plea. In State v. Garcia, a case decided two months before
defendant's 1999 plea, we explained that the "law remains unchanged" that
"[j]udges need not advise defendants of any collateral consequences that may
ensue from a guilty plea," including deportation consequences. 320 N.J. Super.
332, 337 (App. Div. 1999); see also State v. Heitzman, 107 N.J. 603, 604 (1987)
(holding that a "defendant need be informed only of the penal consequences of
his plea and not the collateral consequences, such as . . . effect on immigration
status"). Thus, the alleged failure to inform defendant of the immigration
consequences of his plea did not render his plea involuntary under Rule 3:9-2
based on the law applicable when defendant pleaded in 1999. See Garcia, 320
N.J. Super. at 337; State v. Reid, 148 N.J. Super. 263 (App. Div. 1977) (vacating
an order granting defendant's petition to withdraw a guilty plea based on his lack
of understanding of its immigration consequences); see also Chaidez v. United
States, 568 U.S. 342, 347 (2013) (finding the holding in Padilla, 559 U.S. at 367,
that counsel have an affirmative duty to address the immigration consequences
A-0933-17T4 15 of a criminal proceeding with a defendant, does not apply retroactively); Gaitan,
209 N.J. at 373 (same).
Although defendant's PCR petition, certification and brief before the trial
court include the conclusory assertion that his plea counsel provided misadvice
concerning the immigration consequences of his plea, he failed to provide any
facts establishing that his plea counsel actually provided misadvice, including
during the review and completion of the plea form. To the contrary, defendant's
petition and certification include only the repeated assertion that plea counsel
failed to inform defendant about the immigration consequences of his plea. We
therefore do not consider defendant's contention, made for the first time in his
appellate brief, that the "not applicable" response to Question 17 on the plea
form demonstrates his plea counsel misinformed him about the immigration
consequences. The claim was not made before the motion court. See State v.
Robinson, 200 N.J. 1, 20 (2009) (explaining "appellate courts will decline to
consider questions or issues not properly presented to the trial court when an
opportunity for such a presentation is available unless the questions . . . raised
on appeal go to . . . jurisdiction . . . or concern matters of great public interest"
(quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973))). Moreover,
defendant does not mention or explain the completion of the form or his response
A-0933-17T4 16 to Question 17 in his petition or certification, and the assertions of counsel do
not constitute competent evidence demonstrating that plea counsel provided
misadvice. See Baldyga v. Oldman, 261 N.J. Super. 259, 265 (App. Div. 1993)
("The comments following [Rule 1:6-6] illustrate that its purpose is to . . .
eliminate the presentation of facts which are not of record by unsworn
statements of counsel made in briefs and oral arguments.").
We are unpersuaded by defendant's contention that the court abused its
discretion in denying his request to withdraw his plea. The judge assessed
defendant's request under the four factors the Court in Slater determined must
be considered when deciding a motion to withdraw a plea: "(1) whether the
defendant has asserted a colorable claim of innocence; (2) the nature and
strength of defendant's reasons for withdrawal; (3) the existence of a plea
bargain; and (4) whether withdrawal would result in unfair prejudice to the State
or unfair advantage to the accused." Slater, 198 N.J. at 157-58.
The record supports the court's finding of the first Slater factor. Defendant
failed to assert a colorable claim of innocence; defendant does not claim
innocence at all. Similarly, under the second Slater factor, defendant failed to
present "fair and just reasons for withdrawal" which "have any force." Id. at
159. He claims only that his counsel did not inform him of the immigration
A-0933-17T4 17 consequences of his plea, but his counsel had no duty to inform him about the
immigration consequences when defendant pleaded in 1999.
Also, where, as here, a defendant alleges that acceptance of a plea bargain
was based on a lack of information, the court should "consider[] whether the
defendant reasonably would have made a different choice had the State
conveyed the missing . . . information." State v. O'Driscoll, 215 N.J. 461, 477
(2013). However, other than his bald assertion that he would not have pleaded
guilty if he had been aware of the immigration consequences, defendant does
not provide any facts showing it would have been reasonable for him to do so.
See, e.g., State v. Johnson, 182 N.J. 232, 244 (2005) ("[D]efendant must
demonstrate how the omission of information about NERA materially affected
his decision to plead guilty.").
The third factor, "whether defendant's plea was part of a plea agreement,"
is "viewed in light of the other three factors." State v. Munroe, 210 N.J. 429,
447 (2012). Because "the vast majority of criminal cases are resolved through
plea bargains," this factor is given less weight than the other factors. Slater, 198
N.J. at 161. This factor, however, also weighed against defendant's request to
withdraw his guilty plea.
A-0933-17T4 18 The fourth Slater factor requires that the court determine "whether the
State would have suffered unfair prejudice or defendant would have gained an
unfair advantage had the trial court granted withdrawal of the plea." Munroe,
210 N.J. at 447. The State bears the burden of establishing it will suffer unfair
prejudice only if defendant has offered sufficient proof of the other factors
supporting withdrawal. See Slater, 198 N.J. at 162. Here, defendant fails to
present any proof supporting his withdrawal request under Slater's first three
facts and therefore the "State is not required to show prejudice." Ibid.
In sum, each of the Slater factors weighs against the granting of
defendant's request to withdraw his guilty plea. We find no basis to conclude
that denial of the motion resulted a manifest injustice, R. 3:21-1, or that the court
abused its discretion by rejecting defendant's withdrawal request.
Affirmed.
A-0933-17T4 19