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

NOT FOR PUBLICATION WITHOUT THE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.
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A-0933-17T4

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 thirddegree 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. 
3

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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. 
4

A-0933-17T4

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 
5

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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 . . . 
6

A-0933-17T4

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).
7

A-0933-17T4

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 
8

A-0933-17T4

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. 
9

A-0933-17T4

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 
10 A-0933-17T4

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 
11 A-0933-17T4

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 thirddegree 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. 
12 A-0933-17T4

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). 
13 A-0933-17T4

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 
14 A-0933-17T4

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 
15 A-0933-17T4

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 
16 A-0933-17T4

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 
17 A-0933-17T4

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 
18 A-0933-17T4

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.
19 A-0933-17T4

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.