SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3080-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANEURY TORRES,

Defendant-Appellant.

_______________________

Submitted October 7, 2020 – Decided July 21, 2021

Before Judges Ostrer and Accurso.

On appeal from the Superior Court of New Jersey, Law 

Division, Passaic County, Indictment No. 14-03-0217.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Monique Moyse, Designated Counsel, on the 

brief).

Camelia M. Valdes, Passaic County Prosecutor, 

attorney for respondent (Mark Niedziela, 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NOT FOR PUBLICATION WITHOUT THE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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Defendant Aneury Torres, who was charged with first-degree carjacking 

and related crimes, pleaded guilty to an amended charge of second-degree 

robbery. He was treated as a third-degree offender for sentencing purposes and 

received a three-year sentence subject to the No Early Release Act, N.J.S.A. 

2C:43-7.2. Before he entered his guilty plea, both his defense counsel and the 

trial judge warned him that his plea would almost certainly lead to his removal 

from the United States. 

After Torres was released from State custody and taken into federal 

immigration custody, Torres filed a petition for post-conviction relief (PCR). 

He alleged that his defense counsel improperly elicited a factual basis for his 

plea despite his insistence that he was innocent, and also failed to discuss 

deportation as a consequence of his guilty plea.

The court denied Torres's PCR without an evidentiary hearing. It also 

preemptively denied Torres the opportunity to withdraw his plea under State v. 

Slater, 198 N.J. 145 (2009) (establishing a four-prong test for assessing motions 

to withdraw a guilty plea), although Torres did not ask to do so.

In his appeal, Torres renews those PCR arguments. He also contends that 

the court erred in applying Slater to a withdrawal motion he had not filed. We 
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affirm the trial court's denial of PCR, but we vacate its denial of a pleawithdrawal motion. 

I.

According to a report of Torres's interview with police, Georgie, one of 

Torres's acquaintances, told Torres and two other men to join him in going to 

Paterson to "rob a vehicle." Torres went along, and the four took a public bus

to Paterson. After they arrived, Georgie chose the target car; Torres held back, 

but the others ventured toward it. Georgie and one other spoke to the driver in 

English, but Torres, who did not speak English, did not understand what was 

said. 

While Georgie and his companion spoke to the driver, Georgie pulled a 

gun on her. She and her passenger abandoned the car. Then the four men rode 

off in the stolen car with Georgie at the wheel. However, as they headed back 

toward the Bronx, police followed. Torres told Georgie to stop, but Georgie 

refused. The car soon jumped a curb. With their ride abruptly ended, Georgie 

and the other two fled on foot, while Torres lay down on the ground and was 

arrested.

A grand jury indicted Torres and charged him with first-degree carjacking, 

N.J.S.A. 2C:15-2(a)(2); second-degree eluding, N.J.S.A. 2C:29-2(b); second-
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degree conspiracy to commit carjacking, N.J.S.A. 2C:5-2 and 2C:15-2(a)(1); 

third-degree theft by receiving stolen property, N.J.S.A. 2C:20-7(a); thirddegree unlawful taking of means of conveyance, N.J.S.A. 2C:20-10(c); thirddegree resisting arrest, N.J.S.A. 2C:29-2(a)(3); and fourth-degree aggravated 

assault of a police officer, N.J.S.A. 2C:12-1(b)(5)(a).

Before Torres entered his plea (pursuant to the agreement we have already 

described), his trial counsel described on the record her efforts to advise Torres 

about the immigration consequences of conviction. She stated that she referred 

Torres to an immigration-law specialist, but Torres declined to retain the 

specialist after talking to him "informally." Trial counsel also stated that

because Torres decided not to retain the specialist, she and Torres circled "no"

to question 17(d) on the plea form, which asked if he had "discussed with an 

attorney the potential immigration consequences of [his] plea." But, on the same 

form, he answered “yes” to question 17(a), which inquired if he knew that his 

plea could result in his removal, and "yes" to question 17(f), which inquired if 

he wanted to proceed with his plea "[h]aving been advised of the possible 

immigration consequences" of his plea. And he understood the plea form; trial 

counsel explained at the hearing that she reviewed the bilingual plea form with 
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Torres with the help of Torres's bilingual girlfriend, who testified that she 

translated all the form's questions. 

Torres's trial counsel also stated that she separately discussed Torres's 

case with the immigration-law specialist. She explained, and Torres confirmed 

on the record, that both she and the specialist had informed Torres "that this plea 

. . . may lead to a deportation almost as a certainty."

The trial judge reinforced that message, warning Torres that "it would 

seem that with this kind of a charge it's a virtual certainty that you're going to 

be subject to deportation." He also asked, "[S]o, notwithstanding the fact that 

you didn't directly consult with [the immigration specialist], you still wish to 

proceed with this plea knowing what the consequences are, . . . namely 

deportation?" Torres agreed.

With this foundation in place, defense counsel elicited the plea's factual 

basis. Torres agreed that on July 11, 2013, he was in Paterson and, "along with 

other individuals, stole a motor vehicle"; that "[t]he owner of the vehicle was 

present when [he] and the other individuals took her car"; and that he and the 

others "were able to take this car after threatening bodily injury to the owner." 

Although he seemed confused and said "[n]o [sic] that intention" when the 

prosecutor asked if he "and [his] friends . . . approached that car with the intent 
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of taking it from the owner," defense counsel proceeded to clear up the 

confusion. Specifically, she elicited Torres's agreement that the perpetrators 

"took the [car] without permission," that he "knew that [he] w[as] committing a 

crime when [he] stole that vehicle," and that "even though it wasn't maybe [his] 

idea to steal the car, [he] participated in the crime and [is] responsible 

nevertheless."

The trial court accepted Torres's guilty plea and found that Torres 

"underst[ood] fully the ramifications of [his] plea, including, but not limited to, 

the deportation consequence." The judge later sentenced him in accord with the 

plea agreement.

In his pro se petition for PCR, Torres alleged that his trial attorney 

provided ineffective assistance of counsel because she "failed to inform [him] 

about the [i]mmigration consequence of [his] guilty plea and deportation [sic] 

was mandatory for a [n]on-citizen and an aggravated felony." In a counseled 

amended petition, he added: "With regard to the subject of deportation, my 

attorney never advised me that I could or would be deported. The subject matter 

was never discussed. My attorney never asked me about my immigration status. 

The entire subject of deportation was not addressed notwithstanding that I do 

not speak [E]nglish."
7 A-3080-18

Torres also claimed innocence:

2. Most importantly, with respect to the facts 

which pertain to this criminal matter, I am innocent. At 

the time of the incident, I was present but did not 

participate in any criminal conduct. I did not threaten 

the owner of the vehicle nor possess a weapon nor drive 

the vehicle. I was however present.

3. I continually relayed this information to my 

trial attorney throughout the course of my 

representation but the information was ignored. I had 

a defense to the underlying charges.

In denying Torres's petition, the PCR court found "that defendant was well

aware his deportation as a consequence [of the guilty plea] was and is a virtual 

certainty" and "that trial counsel's performance was not in any way deficient." 

The court also found that Torres provided an adequate factual basis for his plea. 

Then, the court sua sponte applied the Slater factors to find that Torres could 

not withdraw his plea for any reason.

On appeal, Torres raises the following arguments:

POINT I

MR. TORRES IS ENTITLED TO AN EVIDENTIARY 

HEARING ON HIS CLAIM THAT TRIAL COUNSEL 

RENDERED INEFFECTIVE ASSISTANCE OF 

COUNSEL BY FAILING TO INFORM HIM 

ADEQUATELY OF THE DEPORTATION 

CONSEQUENCES OF HIS PLEA AND ELICITING A 

FACTUAL BASIS TO ROBBERY WHEN [HER] 

CLIENT WAS NOT GUILTY OF ROBBERY.
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POINT II

MR. TORRES IS ENTITLED TO A REMAND 

REGARDING THE PCR COURT'S FINDING THAT 

HE CANNOT WITHDRAW HIS PLEA UNDER

STATE V. SLATER, 198 N.J. 145 (2009).

II.

A.

We first address Torres's contention that defense counsel was ineffective. 

We review de novo the PCR court's factual findings and legal conclusions made 

without an evidentiary hearing, State v. Harris, 181 N.J. 391, 419-21 (2004), and 

apply the two-prong Strickland test to Torres's claims of ineffective assistance,

see Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); State v. Fritz, 105 

N.J. 42. 58 (1987) (adopting test). Using that test, we consider (1) whether 

counsel's performance was constitutionally deficient, and (2) whether defendant 

suffered resulting prejudice, that is, whether "there is a reasonable probability 

that, but for counsel's unprofessional errors, the result of the proceeding would 

have been different." Strickland, 466 U.S. at 687, 694. 

Regarding the first prong, a defendant seeking "[t]o set aside a guilty plea 

based on ineffective assistance of counsel . . . must show that . . . counsel's 

assistance was not 'within the range of competence demanded of attorneys in 

criminal cases.'" State v. DiFrisco, 137 N.J. 434, 457 (1994) (quoting Tollet v. 
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Henderson, 411 U.S. 258, 266 (1973)). Where a defendant's immigration status 

is at stake and the law is "succinct, clear, and explicit," counsel must 

affirmatively inform the defendant that a conviction will result in removal from 

the country; when the law is not as clear, counsel must advise the defendant of 

the "risk of adverse immigration consequences." Padilla v. Kentucky, 559 U.S. 

356, 368-69 (2010); see also State v. Gaitan, 209 N.J. 339, 356 (2012). 

However, an attorney need not use specific "magic words" to convey the 

applicable risk or likelihood of removal. State v. Blake, 444 N.J. Super. 285, 

299-300 (App. Div. 2016).

To establish prejudice under the second prong, a defendant must show 

"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) (alteration in original) (quoting 

DiFrisco, 137 N.J. at 457), and "that a decision to reject the plea bargain would 

have been rational under the circumstances," Padilla, 559 U.S. at 372.

Defendant fails to satisfy either Strickland prong regarding his 

immigration-consequences claim. Defendant's plea form and his colloquy with

his attorney and the judge demonstrate that the judge and two attorneys informed 

him of his near certain deportation. His allegations to the PCR court that his 
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"attorney failed to inform [him] . . . deportation was mandatory" and "never 

advised [him] that [he] could or would be deported" are "bare assertion[s] . . . 

insufficient to support a prima facie case of ineffectiveness." See State v. 

Cummings, 321 N.J. Super. 154, 171 (App. Div. 1999). Torres's defense counsel 

did not need to say the words "mandatory deportation" to convey the real

consequences of his plea. See Blake, 444 N.J. Super. at 299-300. It sufficed 

that she said his conviction "may lead to a deportation almost as a certainty" and 

that the judge not only said, "it's a virtual certainty that you're going to be subject 

to deportation," but also elicited Torres's consent to proceed "knowing what the 

consequences are . . . namely deportation." 

Torres also argues that "the issue is what counsel said, not what the trial 

court said." That was true in Blake, where we held that a judge's statements,

which may have downplayed the deportation risk, could not be imputed to 

counsel, who had adequately conveyed the immigration consequences of the 

defendant's plea. Id. at 297. But the judge in Torres's plea hearing did not

downplay the deportation risk — rather, he correctly described the immigration 

consequences of Torres's plea. If nothing else, his doing so doomed any chance

that Torres could satisfy the second Strickland prong. Even assuming for 

argument's sake that trial counsel was deficient (and she was not), the judge's 
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warnings and Torres's responses demonstrated that Torres was fully informed of 

the immigration consequences, and, therefore, suffered no prejudice.

We turn next to Torres's claim that his attorney was ineffective by 

eliciting, despite Torres's protestations of innocence, a factual basis for his 

guilty plea to second-degree robbery. Notably, Torres does not argue that the 

factual basis was inadequate. So, we do not consider that question. Rather, we 

consider — and reject — Torres's contention that counsel should not have 

elicited Torres's confession after he had previously told counsel he was innocent.

We reject Torres's argument for three reasons. First, Torres's claim of 

innocence falls short. In his PCR petition, he alleged that he "did not participate 

in any criminal conduct." He supported this assertion by alleging he "did not 

threaten the owner of the vehicle nor possess a weapon nor drive the vehicle" as 

if those are essential elements of the crimes; they are not. And Torres never 

denied his custodial statements that he joined three others on a mission to steal 

a car, thus conspiring to commit a carjacking. See N.J.S.A. 2C:5-2(a). He 

asserts no defense of duress. See N.J.S.A. 2C:2-9. And, while two of the men 

confronted the victims, defendant stood by — powerful circumstantial evidence 

that he shared their intent. See N.J.S.A. 2C:2-6. Finally, after the carjacking,
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defendant hopped in the stolen car, thereby receiving stolen property and

unlawfully taking a vehicle. N.J.S.A. 2C:20-7(a); N.J.S.A. 2C:20-10(c).

Second, defendant's claim implies that he wished to assert his alleged 

innocence at a trial, but this desire is belied by his agreement at the plea hearing 

that he understood he had a right to a trial and that he was waiving that right so 

he could plead guilty. 

Third, given the substantial evidence against him on first- and seconddegree charges, Torres has not explained how it would have been rational to 

reject a plea bargain leading to a three-year sentence. 

In sum, the trial court correctly denied Torres's petition for PCR based on 

ineffective assistance of counsel. 

B.

But the trial court did err when it applied the Slater test in the absence of 

a Slater motion. A motion to withdraw a plea before sentencing, see Rule 3:9-

3(e), or after sentencing, see Rule 3:21-1, is distinct from a petition for postconviction relief based on ineffective of assistance of counsel, which is filed 

under Rule 3:22. See State v. O'Donnell, 435 N.J. Super. 351, 368 (App. Div. 

2014). These "requests for relief" are "governed by different rules of court" and 

"must be considered separately." Ibid. The trial court should have considered 
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only Torres's petition for PCR, because that was the only relief he sought. It is 

a "fundamental tenet of our Anglo-American system of justice that no court or 

administrative agency is so knowledgeable that they can make fair findings of 

fact without providing both sides the opportunity to be heard." McGory v. SLS 

Landscaping, 463 N.J. Super. 437, 454 (App. Div. 2020) (quoting Paco v. Am. 

Leather Mfg. Co., 213 N.J. Super. 90, 97 (App. Div. 1986)). Any decision on 

whether Torres would be entitled to withdraw must await his motion (and any 

support he would marshal in support of it) and the State's response. 

We recognize that the PCR court's written order states only "that 

defendant's application for post conviction relief is denied"; it does not 

expressly address a motion to withdraw. But when a judge's written or oral 

opinion conflicts with a written order, the opinion controls. Cf. Taylor v. Int'l 

Maytex Tank Terminal Corp., 355 N.J. Super. 482, 498 (App. Div. 2002)

(stating that "[w]here there is a conflict between a judge's written or oral opinion 

and a subsequent written order, the former controls"). Therefore, we vacate that 

part of the court's decision denying a plea-withdrawal motion that defendant 

never made.
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Affirmed in part, vacated in part.