SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO

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- 18T4 STATE OF NEW JERSEY, Plain tiff

- Respondent,

v. SAMANTHA CRUZ, a/k/a ANGELA C RU Z , Defendant

- Appellant.

_______ __________________

Submitted May 4, 2020

– Decided J une 4, 2020 Before Judges Sabatino and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 15

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- 0065 and Accusation No. 10

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- 0573. Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Ali Y. Ozbek, Assistant Prose cutor, of counsel and on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

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Defendant Samantha Cruz , a non - United States citizen, appeals the Law Division order denying her petition for post

- conviction relief (PCR) following an evidentiary hearing. On appeal, defendant argues:

POINT I
SINCE THE DEFENDANT ESTABLISHED THE TWO PRONGS OF STRICKLAND V. WASHINGTON [ 1 ] FOR INEFFECTIVE ASSISTANCE OF COUNSEL IT WAS ERROR FOR THE COURT TO DENY [DEFENDANT'S] PETITION FOR POST [

- ] CONVICTION RELIEF. POINT II
IT WAS ERROR FOR THE PCR COURT T O DENY DEFENDANT'S MOTION TO VACATE HER GUILTY PLEA.
W e disagree with the PCR judge by conclud ing trial counsel provided
i n effective assistance for fail ing to notice defendant 's pre

- sentence report provided she was a Mexican national , which was contrary to her assertions in her plea form and plea colloquy that she was a United States citizen. We affirm,
h owever, as there was no prejudice to defendant because counsel would not have succeeded in withdrawing her guilty pleas principally for the reasons det ermined by the judge when he denied her PCR request to vacate them

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1 466 U.S. 668 (1984)

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- 18 T 4 I Defendant pled guilty to an accusation charging her with aggravated assault with a deadly weapon , N.J.S.A. 2C:12

- 1(b)(3), and to an indictment charging her with intent to distribut e a controlled dangerous substance (CDS) within 1000 feet of a school , N.J.S.A. 2C:35

- 7 and 2C:35

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. During the plea colloquy, the judge, who was also the sentencing and PCR judge, aske d defendant , " [y] ou're a United States citizen?" to which she replied, '' [y] es." Th e
response was consistent with her plea form, where she indicated " [y] es" to the questio n inquiring whether she was a citizen of the United States. Defendant
also responded " [y] es" when th e judge asked her whether she "had enough time to discuss this matter, not just the plea forms, but the case in [total] with [her counsel] , is that co rr ect?"
At defendant's sentencing about two months later, the judge adhered to defendant's plea agreement by dismiss ing the other pendin g charges against her and sentenc ed her to two five

- year concurrent terms of probation and a time served 364

- days county jail term. Defendant did not appeal her convictions or
sentences. About a month after sentenc ing , defendant was charged with violation of probation. Prior to disposition of the charge and facing deport ation based upon4 A

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her CDS conviction , the self

- represented defendant filed a PCR motion to withdraw her pleas and vacate her convictions alleging : (1) trial counsel failed to advise her of the immigration consequences of her guilty pleas and to negotiate a plea that would not have immigration consequences; and (2) she would not have pled guilty had she been aware of the immigration consequences of her pleas.
In a subsequently filed "Amended Petition" by assigned PCR counsel , defendant certified she was not guilty of either conviction and only pled guilty because the plea agreement called for her release from jail after being
incarcerated for more than eight months pending resolution of her charges. Defendant contended the aggravated assault conviction should be vacated because she was defending a third person who was being assaulted. She also argued the CDS conviction should be vacated because the CDS w as not hers and it w as found at a house she just happened to be visiting pursuant to a search warrant issued against a resident of the house

. Upon hearing oral argument on defendant's request for a PCR evidentiary hearing , the judge agreed. Following the hearing , in which counsel and defendant testified o ver the course of two separate dates, t he judge issued an5 A

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order an d seventeen

- page letter opinion denying PCR and defendant's motion to vacate her guilty pleas

. In denying PCR, t he judge determin ed counsel did not provide in effective assistance as required by the first prong of Strickland 's two

- prong test based primarily on his credibility assessment of defendant and counsel's testimony. Contrary to defendant's representation, the judge found counsel thorou ghly reviewed the plea form signed by defendant , which indicated she was a United States citizen, without rushing her to complete it

. Relying upon State v. Nunez

Valdez , 200 N.J. 129 (2009) , Sta te v. Gaitan , 209 N.J. 339 (2 0 12) , and State v. Vieira , 334 N.J. Super. 68 1, (Law Div. 2000) , t he judge determined counsel had
no reason to discuss the immigration consequences of defendant's pleas because

s he indicated she was a United States citizen

. The judge noted defendant's presentence report, " indicated tha t [defendant] was born in Mexico and was a resident alien [,]" and that counsel " testified that prior to sentencing he would have reviewed defendant's p resentence report , but he did not remember taking
note that [ defendant 's ] place of birth was in Mexico. " The judge, however, reasoned that since " defendant mis represented her citizenship status under oath [,]" it " was relied upon by counsel

. . . , the State and [him] at the time of plea and at sentence. "6 A

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The judge further noted testimony that on two separ ate arrest s, defendant
gave different pedigree information regarding her name , birthdate, address, social security number, and her citizenship status

. The judge pointed out defendant testified she did not recall him ask ing at her plea " whether she was a United States citizen, though the transcript clearly indicates she was asked that question and answered in the affirmative. " In sum, the judge stated: Based on the numerous discrepancies and outright misrepresentations set forth above, this court finds t hat [defendant's] testimony entirely lacks credibility and cannot form the basis upon which relief under may be granted. To this court, counsel, court personnel and the police, petitioner has consciously misrepresented not only her immigration status, but her birthdate, social security number, and home address. At the plenary hearing, she either misremembered or misrepresented the basic procedural history of her case.

. . . . Accordingly, there was no basis for [counsel] to discuss the immigration consequences with [defendant]

. Absent a legitimate basis for imputing knowledge of [defendant 's ] foreign citizenship, the relief contemplated under Nunez

- Valdes , Gaitan , and Vieira is not implicated

. In the same vein, this court finds that the ineffecti ve assistance of counsel standard has not been met. To the contrary; this court finds that the ineffective assistance of counsel standard has not been met. To the contrary;7 A

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- 18 T 4 this court finds counsel to have exercised "reasonable professional judgement" an d to have provided more than sufficient legal assistance and in this case.
II Before us, defendant argues the judge erred in finding she did not establish Strickland 's two prong test for ineffective assistance of counsel because he plac ed too much reliance on her representation s on the plea form and in court that she was a citizen. Defendant argues she was unaware of the immigration consequences of her pleas, and had she been made aware by her counsel she would not have pled guilty. She asse rts given the conflicting indications in her discovery ( police reports ) regarding her citizenship status and counsel's failure
to see her naturalization papers , the presentence report should have alerted counsel to her lack of United States cit izenship

. T he State contends defendant ' s continual misrepresentation of her citizenship status belies application of Padilla v. Kentucky , 559 U.S. 356 (2010) , thereby defeat ing her PCR claim s based upon counsel's lack of advice reg ard ing the impact of guilty pleas on her ability to remain in this country because she is a Mexican national

. A ccording to the State , t he judge's denial of rel ief was8 A

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correct based on the record. T he S t ate further contends the judge properly weighed the Sla ter 2 factors in denying her motion to vacate her guilty pleas. To establish a prima facie claim of ineffective assistance of counsel, the defendant is obligated to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland , 466 U.S. at 687; State v. Fritz , 105 N.J. 42, 58 (1987). Under the first prong of this test, the defendant must demonstrate that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland , 466 U.S. at
687 ; Fritz , 105 N.J. at 52. In the context of ineffective assistance related to a plea, the second prong requires a defendant to "'show that the deficient performance prejudiced the defense.'" State v. Taccetta , 200 N.J. 183, 193 (2009) (citation omitted ).
P rejudice is not presumed and must be proven by the defendant. Fritz , 105 N.J. at 52. The inquiry is whether a defendant can " show that, had he been properly advised, 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) (citation omitted).

2 State v. Slater , 198 N.J. 145, 157

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"[A] [defendant] must convince the court that a decision to reject the plea bargain would have been rational unde r the circumstances." Padilla , 559 U.S.
at 356 . This "is an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in . . . the result reached.'" State v. Allegro , 193 N.J. 352, 367 (2008) (alteration in original) (citations omitted). Moreover, "[t]he failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel." State v. Worlock , 117 N.J. 596, 625 (1990) (citing Strickland , 466 U.S. at 688; Fritz , 105 N.J. at 52) ; see also State v. O'Neal , 190 N.J. 601, 618

- 19 (2007) (holding "[i]t is not ineffective assistance of counsel for defense counsel not to file a meritless motion . . . ."). Our review of an order granting or denying PCR contains consideration of mixed que stions of law and fact. State v. Harris , 181 N.J. 391, 415

- 16 (2004). Where, as here, the judge conducts an evidentiary hearing, we must uphold the judge's factual findings, "'so long as those findings are supported by sufficient credible evidence in the record.'" State v. Rockford , 213 N.J. 424, 440 (2013) (quoting State v. Robinson , 200 N.J. 1, 15 (2009)). Additionally, we defer to a trial judge's findings that are "'substantially influenced by [the judge's] opportunity to hear and see the witnesses a nd to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Ibid. (alteration in original) (quoting10 A

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Robinson , 200 N.J. at 15). However, "we need not defer to a PCR [judge 's ] interpretation of the law[,]" as all legal conclusions are review ed de novo. Id.
at 540

- 41. Here, the alleged ineffectiveness pertained to whether counsel properly advised defendant about the immigration consequences of her guilty pleas to aggravated assault and CDS charges. In the context of a guilty plea, the standard to establish ineffective assistance of counsel is somewhat modified. "[A] defendant can show ineffective assistance of counsel by proving that his [or her] guilty plea resulted from ' inaccurate information from counsel concerning the deportation consequences of his [or her] plea.'" State v. Brewster , 429 N.J. Super. 387, 392 (App. Div. 2013) (quoting Nunez

- Valdez , 200 N.J. at 143). Counsel's duty includes an affirmative responsibilit y to inform a defendant entering a guilty plea of the relevant law pertaining to mandatory deportation. Padilla , 559 U.S. at 368

- 69. This court has made clear that counsel's "failure to advise a noncitizen client that a guilty plea will lead to mandatory deportation deprives the client of the effective assistance of counsel guaranteed by the Sixth Amendment." State v. Barros , 425 N.J. Super. 329, 330

- 31 (App. Div. 2012) (citing Padilla, 559 U.S. at 369).11 A

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We take no issue with the judge ' s credibility fi ndings as they are based upon his assessment of the live testimony by defendant and counsel , as well as the plea proceeding

. T he record leaves little doubt defendant lack ed credibility based upon her conflicting representations as to her citizenship statu s . A cornerstone of the attorney

- client relationship is candor. It is apparent
d efendant has not satisfied her responsibility within that relationship . That said, when information concerning a client's citizenship status is presented to an attorney contradict ing their client's representations and has deportation
consequences , it is the attorney 's professional duty t o bring it to the client ' s attention first , and then the court. As evidenced by the following colloquy,

c ounsel did not notice the pres entence report stated defendant was born in Mexico and was not a United States citizen :

[Question] : Okay. So now, when you see this pre

sentence report prior t o sentence being imposed, and you see that it indicates Mexico as a place of birth, did it caus e you any concern that you have to speak with your client? First of all, was this something that you were completely comfortable with because she had indicated Mexico but somehow indicated to you how she became a naturalized citizen? [ Counsel ] : I don't

-- I don't specifically recall noticing the place of birth Mexico and

-- or having a conversation with [defendant]

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C ounsel then candidly stated that because defendant was late for sentencing, he was unsure as to whether he reviewed the presentence report "faster than we would have normally went through it." More troubling is that

w hen the judge asked counsel at sentencing whether he had "any additions , deletions, corrections to the [presentence report ] , " he replied "I do not, Your
Honor. I have reviewed it."
We cannot disregard counsel's failure to address defendant's cit izenship status in the presentence report with defendant , re gardless of her lack of candor with counsel and the judge. This was not an onerous burden on counsel, especially given the contradictory discovery regarding defendant's citizenship. This situation, however, differs from that in Padilla and Barros addressing counsel's obligation to advise his or her non - United States citizen client regarding the deportation consequences of pleading guilty to certain offense s. There, the defendants did not misrepresent to their counsel nor the plea court that they w ere United States citizens

. In this case, it was after defendant pled guilty and prior to sentencing that counsel was put on notice through the presentence report that defendant was a Mexican national.13 A

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- 18 T 4 III O ur conclusion that counsel was ineffective d oes not end our analysis of defendant's ineffective assistance claim because Strickland's second prong

– prejudiced by counsel's ineffectiveness

– must be addressed. If counsel would have discuss ed the citizenship situation with defendant

– assuming she w ould have confirmed she was not a United States citizen

– the proper course of action would have been for counsel to request a postponement of the sentencing so he could file a motion to vacate her guilty pleas. Under the circumstances, it would have been appropriate to grant the request.
I n determining trial counsel was not ineffective , the judge did not directly address th e prejudice prong. However, the contentions trial counsel w ould have raised in a motion to vacate defendant's guilty plea prior to sentencing were in
fact raised in her PCR petition and denied by the judge in his PCR ruling. Thus,

we examine th is portion of the judge's ruling

. Before analyzing defendant's PCR request to vacate her guilty pleas and
the judge's rejection of he r arguments, we address the relevant law. To grant a defendant's request to withdraw a defendant's guilty plea, the trial court must consider and balance the four

- factor Slater test , which provides :

(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of14 A

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- 18 T 4 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 unfai r advantage to the accused. [ Slater , 198 N.J. at 157

- 58. ] The standard to withdraw a guilty plea prior to sentencing is in the interest of justice. State v. Howard , 110 N.J. 113, 123

- 24 (1988) (citation omitted). "'[T]he burden rests on the defendant , in the first instance, to present some plausible basis for his request, and his good faith in asserting a defense on the merits.'" Slater , 198 N.J. at 156 (quoting State v. Smullen , 118 N.J. 408, 416 (1990)). "Generally, representations made by a defen dant at plea hearings concerning the voluntariness of the decision to plead, as well as any findings made by the trial court when accepting the plea, constitute a 'formidable barrier' which defendant must overcome before he will be allowed to withdraw his plea." State v. Simon , 161 N.J. 416, 444 (1999) (quoting Blackledge v. Allison , 431 U.S. 63, 74 (1977)). Accordingly, " ' courts are to exercise their discretion liberally to allow plea withdrawals[] ' " and " ' [i]n a close case, the scales should usually tip in favor of defendant.'" State v. Munroe , 210 N.J. 429, 441 (2012) (internal quotation omitted) (quoting Slater , 198 N.J. at 156); Taylor , 80 N.J. at 365. Nevertheless, the Munroe Court explained that "[l]iberality in exercising
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plea

- withdrawal motion requires a fact

- specific analysis[.]" 210 N.J. at 441

- 42 (first alteration in original) (citations and internal quotation marks omitted). Thus, we will reverse the trial court 's determination of whether to allow a defendant to withdraw a guilty plea "only if there was an abuse of discretion which renders the lower court's decision clearly erroneous." Simon , 161 N.J. at 444 (citing Smullen , 118 N.J. at 416). In denying defend ant's motion to vacate her guilty pleas , t he judge initially found review of the plea hear ing transcript support ed his " determination that there was an adequate factual basis for the plea and that it was made voluntarily, with an understanding by

. . . defendant as to the nature of the charge an d the consequences of her plea " as required by Rule 3:9

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In weigh ing the four Slater factors, the judge de cid ed defendant failed to establish a basis for withdraw ing h er pleas. As to the first factor, the cou rt found defendant did not assert a colorable claim of innocence for each conviction. Defendant testified at the evidentiary hearing she was not guilty of aggravated assault because she was defend ing a third person. On the CDS con viction, defendant testified the CDS was not hers because police were executing a search warrant directed at another person who lived at a residence where she did not live. T he judge found defendant 's proofs lacking because she did not submit any16 A

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credible or specific facts in support of her claim of innocence. For example , regarding the CDS guilty plea, the judge pointed out : "W hile executing a search warrant for the second floor, the police heard someone run from the second to the first floor, where they found defendant hiding in the presence of empty glassine packets and drug paraphernalia. " Regarding the second factor, the nature and strength of defendant's reasons for withdrawal , defendant argues she sought to withdraw her gu ilty pleas because they we re not voluntary , m eaning she would not have pled guilty if she knew deportation would follow. T he judge found d efendant 's request to vac a te her pleas rested " solely upon the unanticipated consequence of the discovery of her true immigration status

– a status she actively misrepresented

– and not genuine claims of innocence

. . . . " The judge stated the third factor, the existence of plea agreement, requires defendant to satisfy a heavy burden to withdraw her pleas , and gave it no weight
in h er favor

. As to the fourth factor, whether plea withdrawal would result in unfair prejudice to the Sta t e or unfair advantage to the accused, defendant argues the State presented no proof it would be prejudiced by having to go to trial on defendant's charges

. The judge noted since defendant's claims under the first17 A

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three factors were entitled to no weight , Slater does not require the State to show prejudice if the pleas were withdrawn. 198 N.J. at 162 (citations omitted)

. Nonetheless, the judge determined " [ i ] t i s axiomatic that the passage of time tends to favor the accused and prejudice the State

– – witnesses move and become difficult to locate [] ; evidence is mislaid or lost; memories fade with time. " By finding defendant failed to satisfy the Slater factors and had not established that a failure to withdraw h er guilty plea would result in a manifest injustice, the judge denied the motion. We see no abuse of discretion , nor unjust result

. Th e judge 's weighing of the Slater factors is supported by the record

. The factual basis defendant gave for her pleas during her colloquy were not overcome by her PCR certification and the arguments presented to the judge or to this court. Had trial counsel raised th is motion after learning through the presentence report def endant was not a United States citizen the same result would have occurred ; the motion would have been denied

. Thus, t here was no prejudice caused by trial counsel's failure to make th is same motion upon review of the presentence report and necessary cons ultation with defendant. Moreover, defendant should not obtain the benefit of relitigating charges made against her where she has created a trail of deception without any facts in the record supporting mitigation of her actions

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Affirme d

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