SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2212-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RENE RODRIGUEZ,

Defendant-Appellant.

__________________________

Argued May 24, 2017 – Decided July 19, 2017

Before Judges Simonelli, Gooden Brown and 

Farrington.

On appeal from the Superior Court of New 

Jersey, Law Division, Union County, Indictment 

No. 05-11-1496.

Eric M. Mark argued the cause for appellant 

(Law Office of Eric M. Mark, attorneys; Mr. 

Mark, on the briefs).

Kimberly L. Donnelly, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued 

the cause for respondent (Grace H. Park, 

Acting Union County Prosecutor, attorney; N. 

Christine Mansour, Special Deputy Attorney 

General/Acting Assistant Prosecutor, of 

counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE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-2212-15T2

PER CURIAM

Defendant Rene Rodriguez appeals from the January 6, 2016 Law 

Division order, which denied his petition for post-conviction 

relief (PCR) without an evidentiary hearing. We affirm.

We derive the following facts from the record. On September 

19, 2005, the police observed defendant engage in a hand-to-hand 

drug transaction. Defendant drove away from the scene of the 

transaction and the police stopped him a short time later. A 

consent search of defendant's car revealed eighteen plastic bags

containing cocaine. The police searched defendant following his 

arrest and found $400 on his person. 

Defendant was charged under Warrant Nos. W-05-851-2009 and 

W-05-852-2009 with third-degree possession of a controlled 

dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); second-degree 

possession with intent to distribute a CDS, N.J.S.A. 2C:35-5(a)(1) 

and N.J.S.A. 2C:35-5(b)(2); second-degree possession with intent 

to distribute a CDS within 500 feet of a public park, N.J.S.A.

2C:35-7.1; and third-degree possession with intent to distribute

a CDS within 1,000 feet of school property, N.J.S.A. 2C:35-7. 

On November 30, 2005, defendant entered a pre-indictment 

guilty plea to possession with intent to distribute a CDS, N.J.S.A.

2C:35-5(a)(1), amended to third degree. In exchange, the State 

agreed to recommend a three-year probationary term with 180 days 
3 A-2212-15T2

to be served in the county jail, and to dismiss the remaining 

charges.

At the plea hearing, defendant testified that he reviewed 

each question on the plea forms with plea counsel, and gave

truthful answers to each question. Defendant had answered "Yes" 

to Question 17, which asked if he understood that he may be 

deported as a result of his guilty plea if he was not a United 

States citizen or national. Regarding the deportation 

consequences, the following colloquy occurred:

[THE COURT]: Are you a U.S. citizen?

[DEFENDANT]: No.

[THE COURT]: Do you understand you may be 

deported if you plead guilty?

[DEFENDANT]: Yes.

[THE COURT]: Do you want to plead guilty 

knowing that?

[DEFENDANT]: I wanted to plead innocent.

[THE COURT]: I'm sorry?

[DEFENDANT]: I'm confused right now. I 

don't know what to take. Guilty or innocent.

[PLEA COUNSEL]: Are you married to a U.S. 

citizen?

[DEFENDANT]: No.

[PLEA COUNSEL]: Do you have children born in 

the United States?
4 A-2212-15T2

[DEFENDANT]: Yes.

[PLEA COUNSEL]: Okay. Unlikely.

[DEFENDANT]: I'll plead guilty.

[THE COURT]: Are you sure?

[DEFENDANT]: Yes.

When defendant again expressed uncertainty about pleading 

guilty, the court refused to accept the plea and stated: "You're 

going to talk to your lawyer and I'm only going to take your plea 

if you fully understand everything." After a brief recess, the 

following colloquy occurred:

[THE COURT]: You all set?

[PLEA COUNSEL]: Absolutely. [Defendant] 

says he's fine.

[THE COURT]: Where were we when we left off?

[DEFENDANT]: I was pleading guilty, Your 

Honor.

[THE COURT]: Are you okay with everything 

now?

[DEFENDANT]: Yeah.

. . . .

[THE COURT]: Are [you] willing to plead 

guilty knowing the consequences with regards 

to the deportation if there's a chance that 

they may file deportation charges against you?

[DEFENDANT]: Yes sir.
5 A-2212-15T2

[THE COURT]: And you had a chance to talk 

with [plea counsel] about that?

[DEFENDANT]: Yes, sir.

[THE COURT]: Okay. Do you have any 

questions of [plea counsel] about anything?

[DEFENDANT]: No.

[THE COURT]: Okay. Are you satisfied with 

the work [plea counsel] performed for you?

[DEFENDANT]: Yes.

[(Emphasis added).]

Defendant also testified he was not forced or threatened into 

pleading guilty and did so freely and voluntarily. He then gave 

a factual basis for his plea, admitting that he possessed cocaine 

with the intent to distribute.

On March 28, 2006, the court sentenced defendant to a threeyear probationary term with a 180-day jail sentence, which was 

later suspended. Defendant did not appeal his conviction or 

sentence.

In May 2015, the United States Department of Homeland Security 

initiated immigration removal proceedings against defendant based 

on his drug conviction. On July 14, 2015, defendant filed a PCR 

petition. In his verified petition, defendant certified that plea 

counsel rendered ineffective assistance by failing to: (1) apply 

for pre-trial intervention (PTI); (2) pursue meritorious defenses, 
6 A-2212-15T2

including a motion to suppress based on an unlawful motor vehicle 

stop; and (3) negotiate a non-deportable plea. Defendant did not

certify that plea counsel affirmatively misadvised him there would 

be no immigration consequences of his guilty plea. Defendant also 

filed a motion to withdraw his guilty plea pursuant to Rule 3:21-

1. 

At oral argument on the PCR petition, PCR counsel argued 

there was excusable neglect to relax the five-year time bar of 

Rule 3:22-12(a)(1) because defendant was unaware of the 

deportation consequences of his plea until deportation proceedings 

began in May 2015, and denial of the petition would result in a 

fundamental injustice. PCR counsel asserted that plea counsel 

rendered ineffective assistance by affirmatively misadvising 

defendant there would be no immigration consequences and he would 

not be deported when, in fact, defendant was pleading to a 

deportable offense. 

In a January 6, 2016 oral opinion, Judge William A. Daniel 

denied the petition without an evidentiary hearing, concluding it 

was time-barred by Rule 3:22-12(a)(1), and defendant failed to 

show excusable neglect or that a denial of the petition would 

result in a fundamental injustice. The judge found defendant had 

knowledge and was aware of the potential immigration consequences 
7 A-2212-15T2

when he pled guilty, and had the opportunity and incentive to 

inquire about his immigration status post-plea, but did not do so.

Addressing the merits, Judge Daniel reviewed the plea 

transcript and defendant's verified petition, and found the record 

did not support PCR counsel's argument that plea counsel 

affirmatively misadvised defendant there would be no immigration 

consequences and he would not be deported. The judge emphasized 

that defendant did not certify that plea counsel advised him he 

would not be deported. The judge concluded that by answering 

"Yes" to Question 17, defendant was on notice of the potential 

deportation consequences of his guilty plea.

Judge Daniel found that given the nature of the offenses 

charged, defendant was presumptively ineligible for PTI under 

Guideline 3(i) of Rule 3:28, and there was no evidence defendant 

was drug dependent or that the prosecutor was willing to join in 

a PTI application. The judge concluded that plea counsel was not

ineffective for failing to file a likely unsuccessful PTI 

application.

Judge Daniel determined that a motion to suppress would have 

failed because the police had probable cause to conduct an 

investigatory stop of defendant's car based on them observing him

engaging in a hand-to-hand drug transaction. The judge concluded 
8 A-2212-15T2

that plea counsel was not ineffective for failing to file a 

meritless motion to suppress.

Judge Daniel found defendant did not certify that the State 

was willing to offer anything less than what was offered or that 

plea counsel did not attempt to negotiate a more favorable plea 

deal. The judge concluded there was no competent evidence that 

plea counsel rendered ineffective assistance by failing to 

negotiate a non-deportable plea. 

Lastly, Judge Daniel denied defendant's motion to withdraw 

his guilty plea. The judge found that defendant entered his plea 

voluntarily and knowingly and provided a factual basis. The judge 

determined that defendant failed to satisfy the Slater factors:

(1) whether defendant 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 the withdrawal 

would result in unfair prejudice to the State or unfair advantage 

to defendant. State v. Slater, 198 N.J. 145, 157-58 (2009). The 

judge found that defendant did not assert his innocence at the 

plea hearing, but merely seemed unsure as to whether or not to 

plead guilty, and did not certify that he was innocent of the 

offense charged. The judge also found that defendant's reason for 

withdrawal, ineffective assistance of counsel, lacked merit; there 

was a negotiated plea; defendant benefitted from a favorable plea 
9 A-2212-15T2

bargain; defendant knew of the deportation consequences of his 

plea; and the State would be prejudiced by the ten-year delay 

while defendant would have an unfair advantage.

On appeal, defendant raises the following contentions:

 I. The Time Bar to PCR is Overcome by 

Excusable Neglect and Fundamental 

Injustice.

A. Petitioner's Failure to Timely 

File Was Due to Excusable 

Neglect. 

i. The Lower Court Erred 

in Finding the Absence of 

Excusable Neglect because 

of the Court's Warnings. 

ii. The Lower Court Erred 

in Finding the Plea Form, 

Alone, Showed "Knowledge 

or Awareness" of the 

Immigration Consequences. 

iii. [Defendant] Did Not 

Have the "Knowledge or 

Awareness" of Immigration 

Consequences Because His 

Trial Counsel Misinformed 

Him.

B. Enforcement of the Time Bar 

Would Result in Fundamental 

Injustice.

 II. Ineffective Assistance of Counsel.

A. Defense Counsel Misadvised 

[Defendant] of Immigration 

Consequences.
10 A-2212-15T2

B. Defense Counsel Failed to Apply 

[Defendant] to [PTI].

C. Defense Counsel Failed to Pursue 

Potentially Meritorious 

Defenses.

D. Defense Counsel Failed to 

Negotiate a Non-Deportable 

Plea. 

E. Cumulative Effects.

 III. The Trial Court Erred in Denying an 

Evidentiary Hearing.

 IV. Withdrawal of Guilty Plea Should Have

Been Granted Because [Defendant] Did Not

Have a Comprehensive Understanding of the

Consequences.

We review a judge's decision to deny a PCR petition without 

an evidentiary hearing for abuse of discretion. State v. Preciose, 

129 N.J. 451, 462 (1992). We discern no abuse of discretion here.

The mere raising of a claim for PCR does not entitle the

defendant to an evidentiary hearing. State v. Cummings, 321 N.J. 

Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). 

Rather, trial courts should grant evidentiary hearings and make a 

determination on the merits only if the defendant has presented a 

prima facie claim of ineffective assistance, material issues of 

disputed fact lie outside the record, and resolution of the issues 

necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J.
11 A-2212-15T2

343, 355 (2013). To establish a prima facie claim of ineffective 

assistance of counsel, the defendant 

must satisfy two prongs. First, he must 

demonstrate that counsel made errors so 

serious that counsel was not functioning as 

the counsel guaranteed the defendant by the 

Sixth Amendment. An attorney's representation 

is deficient when it [falls] below an 

objective standard of reasonableness. 

Second, a defendant must show that the 

deficient performance prejudiced the defense. 

A defendant will be prejudiced when counsel's 

errors are sufficiently serious to deny him a 

fair trial. The prejudice standard is met if 

there is a reasonable probability that, but 

for counsel's unprofessional errors, the

result of the proceeding would have been 

different. A reasonable probability simply 

means a probability sufficient to undermine 

confidence in the outcome of the proceeding.

[State v. O'Neil, 219 N.J. 598, 611 (2014) 

(citations omitted).]

"[I]n order to establish a prima facie claim, [the defendant] 

must do more than make bald assertions that he was denied the 

effective assistance of counsel. He must allege facts sufficient 

to demonstrate counsel's alleged substandard performance." 

Cummings, supra, 321 N.J. Super. at 170. The defendant must 

establish, by a preponderance of the credible evidence, that he

is entitled to the requested relief. State v. Nash, 212 N.J. 518, 

541 (2013). With respect to a guilty plea, our Supreme Court has 

explained that
12 A-2212-15T2

[t]o set aside a guilty plea based on 

ineffective assistance of counsel, a defendant 

must show that (i) counsel's assistance was 

not within the range of competence demanded 

of attorneys in criminal cases; and (ii) that 

there is 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) (quoting State v. DiFrisco, 137 N.J.

434, 457 (1994)).]

We have considered defendant's contentions in light of the 

record and applicable legal principles and conclude they are 

without sufficient merit to warrant discussion in a written 

opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons 

expressed by Judge Daniel in his comprehensive and cogent oral 

opinion. However, we make the following brief comments.

The Supreme Court of the United States has held that defense 

attorneys are affirmatively obligated to inform their clients 

about the deportation risks of entering a guilty plea. Padilla

v. Kentucky, 559 U.S. 356, 366, 130 S. Ct. 1473, 1482, 176 L. Ed.

2d 284, 294 (2010). However, the Court held that Padilla does not 

apply retroactively, Chaidez v. United States, ___ U.S. ___, ___, 

133 S. Ct. 1103, 1105, 185 L. Ed. 2d 149, 154 (2013), and our

Supreme Court held that Padilla is a new rule to be applied 

prospectively only. State v. Gaitan, 209 N.J. 339, 371-72 (2012), 
13 A-2212-15T2

cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 

(2013); see also State v. Santos, 210 N.J. 129, 143 (2012). 

Here, defendant pled guilty five years before Padilla. 

Therefore, his "guilty plea is not vulnerable because neither the 

court nor counsel warned the defendant about the deportation 

consequences of the guilty plea." Gaitan, supra, 209 N.J. at 361 

(citation omitted).

A limited exception to this rule arises when defense counsel 

provided affirmatively misleading advice about the immigration

consequences of a guilty plea. See Nuñez-Valdéz, supra, 200 N.J.

at 139-43 (where defense counsel informed the defendant there 

would be no immigration consequences arising from his plea); see 

also Santos, supra, 210 N.J. at 143. That exception is 

inapplicable here because Judge Daniel did not find that plea

counsel affirmatively misadvised defendant there would be no 

deportation consequences arising from his plea. Rather, the judge 

found there was no competent evidence counsel gave affirmatively 

misleading advice, and defendant knew that he may be deported by 

virtue of having read and truthfully answered "Yes" to Question 

17 and having been alerted to that possibility at the plea hearing.

This information was not prima facie proof of ineffective 

assistance of counsel. State v. Brewster, 429 N.J. Super. 387, 

398 (App. Div. 2013). 
14 A-2212-15T2

Affirmed.