SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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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 , attorn ey 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not " constitute precedent or be binding upon any court.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

- 3.2 A

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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 I ndictment No. 99

- 05

- 0445 with three drug offe nses , 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 char ged in
Indictment No. 99

- 04

- 0 389 with fiv e 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

- 0 389. Defendant ' s plea form , however , reflects that those charges were to be dismissed at sentencing on the charges to which defendant pleaded.3 A

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2C:35

- 7 and N.J.S.A. 2C:35

- 5(a) , charged in the separate indictments. Two
months later , th e court sentenced defendant to con current three

- year custodial

term s with concurrent one
- year period s of parole ineligibility on each of the charges

. 2 Defendant did not file a direct appeal.
S eventeen years later , on J uly 22 , 2016 , defendant filed a pr o 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 trigg er 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 t he 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 th e PCR court.4 A

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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 inef fective. 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 consequence s of his plea.
In an oral opinion following oral argu ment 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 per sonal knowledge of plea counsel , the judge said plea
counsel was " a n experienced criminal defense attorney , having practiced primarily criminal law since the day tha t [counsel] went into private practice "
and that he had " observed [plea counsel ] in court. " The judge concluded5 A

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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 defen dant failed to show prejudice from his
counsel ' s alleged error. The ju dge found defendant received a " generous plea
offer and . . . faced a lot more time o n [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 pl ea 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 ple a.
T he 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

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strong enough " to allow withdraw al 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 unf air 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 defen se. 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

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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 pet itioner
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 d efendant by the
Sixth Amendment , " i d. at 687. Under the second prong of the Strickland standard , a defendant " must show that the deficient performance prejud iced 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 mixed8 A

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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.
D efe n dant argues a reversal is warranted because the judge made fin dings of fact lacking evidentiary support and r elied on his personal knowledge of plea
counsel ' s profession al 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 co nsidered , 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 priva te 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). M oreover , we
agree there is no support in the record for the court ' s finding defendant said he
was a citiz en during his plea proceeding

. The record shows d efendan t never
made such a statement.9 A

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The court ' s error s , however , do not require reversal of the challenged
order . W e 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 , s ee 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 s ustain 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 (2 012) (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) (quoting10 A

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State v. DiFrisco , 137 N.J. 4 34 , 457 (1994)). A defendant must further show " it
would hav e 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 satisf y 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 , cer tification 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 proce ed 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) (authorizing11 A

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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 conse cutive sentence
include whether " the crim es and the ir 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 con secutive sentences totaling ten years on those charges alone and up to a five

- year period of parole ineligibility , s ee N.J.S.A. 2C:43

- 6(b). 4
H owever , 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

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- 0389 that were dismissed under the plea agreement. As noted , the record does not identify those charges.12 A

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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 d o 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 cou rt 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 f ailed to esta blish a prima facie ineffective assistance of counsel cla i m because he did not

5 Because we affi rm 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

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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 f inding he was n ot entitled to withdraw his plea. We analyze defendant ' s request to withdraw his g uilty 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 (ex plaining that a defendant seeking to withdraw a plea following sentencing " must show [his or her] conviction was manifestly unjust " ). A de fendant ' 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 finality14 A

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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)).

" C onsideratio n 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 R ule 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). T he 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
i nterests of the State and the defendant. " Ibid.
Defendant claims his 1999 plea violated Rule 3:9

- 2 because his att orney ' s failure to advise him about the immigration consequences of his plea deprived15 A

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him of the " understanding of the . . . co nsequences 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 immigra tion consequences of a plea were considered " collateral " and no t penal consequences of a plea. In State v. Gar c ia , 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 consequence s. 320 N.J. Super.
332 , 337 (App. Div. 1999) ; see also State v. Heitzman , 107 N.J. 603 , 604 (1987) (holding that a " defendant n eed 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 wi thdraw a guilty plea based on his lack of understanding of its immigration consequences); s ee 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 consequences16 A

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of a criminal proceeding with a defendant , does not apply retroactively); Gaitan , 20 9 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 provid ed 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 immigra tion consequences of his p lea. We
therefore do not consider defendant ' s contention , made for the first time in his appellate brief , that the " not applicable " response to Question 1 7 on the plea
form demonstrates his plea counsel misinformed him about the im migration
consequences. T he claim was not made before the motion court

. S ee 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 av ailable unless the questions . . . raised on appeal go to . . . jurisdiction

. . . or concern matt ers 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 response17 A

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to Question 17 in his petition or certification , and the assertions of counsel do not constitute competent evidence demonstrating that plea counsel provide d
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 a re 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 p rejudice to the S tate 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 ; d efendant does not claim
innocence at all

. Similarl y , under the second Slater factor, defendant failed to present " fair and just reasons for wi thdrawal " which " have any force

. " Id. at 159. He claims only that his counsel did not inform him of the immigration18 A

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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 m issing

. . . 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 consequen ces , 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

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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

s upporting withdraw al

. 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 weigh s against the granting of
defendant ' s request to withdraw his guilty plea. We find no basis to conclude
that den ial of the motion resulted a manifest injustice , R. 3:21

- 1 , or that the court
abused its di scretion by rejecting defendant's withdrawal request.
Affirmed.