SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2499-20

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILMER M. REYES,

Defendant-Appellant.

_______________________

Submitted August 2, 2022 – Decided August 9, 2022

Before Judges Geiger and Rose.

On appeal from the Superior Court of New Jersey, Law 

Division, Camden County, Indictment Nos. 14-11-3597 

and 16-06-1751.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Monique Moyse, Designated Counsel, on the 

brief).

Grace C. MacAulay, Camden County Prosecutor, 

attorney for respondent (Kevin J. Hein, 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NOT FOR PUBLICATION WITHOUT THE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 Wilmer M. Reyes appeals from a Law Division order denying 

his motion for post-conviction relief (PCR). On appeal, defendant challenges 

trial counsel's effectiveness, claiming counsel failed to advise him about the 

immigration consequences of his guilty pleas, and claims the court erred by 

denying PCR without conducting an evidentiary hearing. We affirm. 

We take the following facts from the record. In November 2014, 

defendant was charged in Indictment No. 14-11-3597 with third-degree 

possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1), 

and third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-

5(a)(1) and 2C:35-5(b)(3). 

In May 2015, defendant pled guilty to third-degree possession of CDS in 

exchange for a recommended two-year non-custodial term of probation and 

dismissal of the other count. During the plea hearing, defendant acknowledged

that he understood the charges he faced and the terms of the plea agreement, had 

enough time to discuss the case with counsel, was satisfied with the services of 

counsel, reviewed the questions on the plea forms with counsel and understood 

the questions, answered the questions truthfully, signed and initialed the plea 

forms, and understood the rights he was waiving by pleading guilty. Defendant 

further acknowledged he was born in the Dominican Republic and was not a 
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United States citizen. The court engaged in the following colloquy with 

defendant regarding the immigration consequences of his guilty plea, with a 

brief interjection by his counsel, Patrick E. Malloy:

THE COURT: Sir, do you understand that if you're 

not a citizen of the United States, the guilty plea may 

result in your removal from the United States or stop 

you from being legally able to enter or reenter the 

United States?

DEFENDANT: Yes.

THE COURT: You also understand that you have a 

right to seek individualized advice from an attorney 

about the effect your guilty plea will have on your 

immigration status; do you understand that, sir?

DEFENDANT: Yes.

THE COURT: Sir, have you discussed with an 

attorney the potential immigration consequences of this 

plea?

DEFENDANT: No.

THE COURT: You circled yes.

MR. MALLOY: Judge, he discussed it with me. 

DEFENDANT: Yeah.

THE COURT: Okay.

MR. MALLOY: He –
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THE COURT: Sir, would you like the opportunity 

to do so, sir?

DEFENDANT: No.

THE COURT: You're sure, sir?

DEFENDANT: Yes. 

THE COURT: Sir, having been advised of the 

possible immigration consequences and your right to 

seek individualized legal advice on you immigration 

consequences, do you still wish to plead guilty, sir? 

DEFENDANT: Yes.

THE COURT: Okay. And sir, you understand that 

with this type of sentence, where it has a possible 

penalty of up to five years, you could be deported, sir; 

do you understand?

DEFENDANT: Yes. 

Defendant acknowledged that he was pleading guilty voluntarily, was not 

under the influence of any medication, drugs, or alcohol, understood the charge 

he was pleading guilty to, and provided a factual basis for illegally possessing 

heroin. Defendant indicated he had no questions for his attorney or the court. 

The judge accepted the guilty plea, finding it was entered knowingly and 

voluntarily and was supported by an adequate factual basis. 

Defendant was sentenced on July 24, 2015. The judge found aggravating 

factors three (risk of reoffending), six (prior criminal record), and nine (need for 
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deterrence). N.J.S.A. 2C:44-1(a)(3), (6), and (9). The judge also found 

mitigating factors six (defendant will compensate the victim), and ten 

("defendant is particularly likely to respond affirmatively to probationary 

treatment"). N.J.S.A. 2C:44-1(b)(6) and (10). The judge found that the 

mitigating factors outweighed the aggravating factors. Defendant was sentenced 

in accordance with the plea agreement to a non-custodial two-year probationary 

term and thirty hours of community service. The other charges were dismissed. 

On March 6, 2016, defendant was arrested in Camden for eluding and 

other offenses. In June 2016, defendant was charged in Indictment No. 16-06-

1751 with: second-degree eluding, N.J.S.A. 2C:29-2(b); third-degree receiving 

stolen property, N.J.S.A. 2C:20-7(a); fourth-degree resisting arrest, N.J.S.A. 

2C:29-2(a)(2) second-degree unlawful possession of a weapon (handgun), 

N.J.S.A. 2C:39-5(b); second-degree possession of a weapon for an unlawful 

purpose, N.J.S.A. 2C:39-4(a); three counts of second-degree aggravated assault, 

N.J.S.A. 2C:12-1(b)(1); three counts of third-degree aggravated assault, 

N.J.S.A. 2C:12-1(b)(2); second-degree conspiracy to commit aggravated 

assault, N.J.S.A. 2C:5-2 and 2C:12-1(b)(1); third-degree conspiracy to commit 

aggravated assault, N.J.S.A. 2C:5-2 and 2C:12-1(b)(2); and third-degree 
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receiving stolen property, N.J.S.A. 2C:20-7(a). Defendant was represented by 

different counsel on the second indictment. 

The new charges resulted in a violation of probation (VOP) charge. 

Defendant did not contest the VOP. 

In September 2016, defendant pled guilty to second degree eluding in 

exchange for a concurrent eight-year prison term, with no objection by the State 

to intensive supervised parole, and dismissal of the remaining counts. During 

the plea hearing, defendant testified that he understood English and had 

completed high school. When asked if he was a citizen of the United States, 

defendant answered: "Yes." Defendant acknowledged that he understood the 

charges, had a sufficient opportunity to discuss the charges and the proposed 

plea agreement with counsel, and was fully satisfied with counsel's advice and 

services. He further acknowledged that he reviewed the plea forms with 

counsel, read and understood the information on the plea forms, and answered 

all the questions on the forms truthfully, understood the rights he was waiving 

by pleading guilty, and was pleading guilty voluntarily. Defendant also 

acknowledged that his guilty plea was a per se violation of his probation. 

Defendant then gave a factual basis for his plea and acknowledged that he was 

pleading guilty because he was guilty. The judge accepted the guilty plea, 
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finding the plea was "entered knowingly and voluntarily, and that there [was] an 

adequate factual basis for the plea." 

Defendant was sentenced on October 21, 2016. The judge found 

aggravating factors three, six, and nine, no mitigating factors, and that the 

aggravating factors outweighed the non-existent mitigating factors. The judge 

sentenced defendant to an eight-year term and dismissed the remaining counts 

in accordance with the terms of the plea agreement. 

On the VOP, the judge found the guilty plea to eluding was a per se VOP. 

The judge found aggravating factors three, six, and nine, determined that 

mitigating factors six and ten no longer applied, and found the aggravating 

factors outweighed the mitigating factors. The judge terminated defendant's 

probation and resentenced him to a concurrent three-year term. 

Defendant did not file a direct appeal from his conviction or sentence on 

either indictment. Nor did he file a motion to withdraw either of his guilty pleas. 

On October 20, 2020, defendant filed a timely motion for PCR based on 

ineffective assistance of counsel. Defendant submitted a certification in support 

of the motion, which stated that at the time of the plea on the first indictment, 

trial counsel Patrick Malloy

reviewed the entire plea agreement form with me and 

wrote or circled my answers. When I was before [the 
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trial judge], the [c]ourt asked me, "Sir, have you 

discussed with an attorney, the potential immigration 

consequences of this plea?" I responded "no." The 

[c]ourt said, "You circled Yes." Mr. Malloy responded 

to the [c]ourt[,] "Judge, he discussed it with me." I 

responded "Yeah." 

Defendant represented that he "was not advised by Mr. Malloy at any time 

during or prior to the [p]lea [h]earing of specific immigration consequences 

which would result from my guilty plea." Defendant further represented that 

when he appeared for sentencing on the first indictment, neither his 

"immigration status nor the possible immigration consequences of [his] 

[s]entence, were addressed by either the [c]ourt or [his] attorney." 

Defendant acknowledged that during the plea hearing on the second 

indictment, he responded affirmatively when asked by the same trial judge if he 

was a citizen of the United States. Defendant alleges he "obviously 

misunderstood the question and answered 'Yes' by mistake. What added to the 

confusion was my knowledge that when I pled guilty previously before the same 

[j]udge, he questioned me about my immigration status and he knew I was not a 

citizen." Defendant noted that neither his immigration status nor the 

consequences of his plea were discussed during the sentencing hearing. 

Defendant challenged his plea, conviction, and sentence on that basis. He 

noted the ICE detainer pending against him since March 2016. 
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A different judge heard oral argument on the PCR motion on February 8, 

2021, and rejected defendant's claim of ineffective assistance of counsel. In his 

comprehensive oral decision, Judge Mark K. Chase recounted the procedural 

history, defendant's answers to questions on the plea forms regarding his 

immigration status and consequences, and pertinent testimony during the plea 

hearings. 

After reviewing the applicable case law, Judge Chase found that during 

the first plea hearing, defendant was advised and acknowledged that his plea 

could have deportation consequences, and that he could have more time to speak 

with an immigration attorney, but he expressed his desire to nonetheless proceed 

with his guilty plea. 

Judge Chase recounted defendant's answers to questions 17A, 17B, 17C, 

17D, and 17F of the plea forms as to the first indictment. 

First, question 17A of the plea form pertaining to 

defendant's CDS conviction asked defendant if he was 

a United States citizen. "No" is circled in response. 

Question 17B asked, "Do you understand that if you are 

not a citizen of the United States, this guilty plea may 

result in your removal from the United States and/or 

stop you from being able to legally enter or re-enter the 

United States?" The "Yes" response is circled. 

Question 17C asked, "Do you understand that 

you have the right to seek individualized advice about 

the affect your guilty plea will have on your 
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immigration status?" The "Yes" response was circled. 

Finally, question 17D says, "Have you discussed with 

an attorney the potential immigration consequences of 

your plea?" The "Yes" response is circled. 

The plea form . . . directed that if . . . if the answer 

is yes, to proceed to question 17F. 17F asked, "Have 

you been advised of the possible immigration 

consequences and of your right to seek individualized 

legal advice on your immigration consequences? Do 

you still wish to plead guilty?" "Yes" is circled in 

response. 

Judge Chase then discussed defendant's related testimony. 

The record reflects during defendant's plea 

hearing on his CDS conviction Judge Polansky asked 

the defendant if he went over the plea form with his 

counsel, he understood each question, he gave counsel 

truthful answers, if counsel wrote answers as the 

defendant provided them, and if he reviewed the 

answers after they were written. To each question, 

defendant answered in the affirmative. Defendant 

additionally answered in the affirmative that he signed 

and initialized the forms certifying they contain truthful 

answers. This line of questioning also pertains to 

question 17, which pertains to immigration 

consequences and defendant's right to seek individual 

immigration advice. 

After reciting defendant's testimony regarding immigration consequences, 

Judge Chase explained: 

In addition to the conversations that may have

taken place off the record with Mr. Malloy, defendant 

is questioned by Judge Polansky more than once 

whether he would like to seek independent legal advice 
11 A-2499-20

regarding the immigration consequences of his plea and 

whether he still wishes to plead guilty. Nothing in this 

record reflects that counsel's performance was 

substandard, that Mr. Malloy has a lack of [knowledge 

of] Federal immigration law, and that the counsel -- or 

that Mr. Malloy was seriously hindered in his

representation of defendant. 

The Padilla1court holds that counsel must inform 

. . . the court whether the plea carries a risk of 

deportation. Based on the plea transcript, Mr. Malloy 

did, in fact, go through the plea form with defendant

where he would have had the opportunity to inform his 

client that his plea carries a risk of deportation.

Judge Chase then addressed the second indictment: 

As to defendant's eluding conviction, the record 

demonstrates that defendant maintained he was a U.S. 

citizen in the plea form when yes was circled in 

response to question 17A, which asked the defendant if 

he was a citizen of the United States. 

Furthermore, the defendant answered N/A, not 

applicable, in response to question 17D, which asked 

the defendant if he had discussed the immigration 

consequences of his plea. As the plea colloquy 

demonstrates in response to Judge Polansky's question 

of whether defendant was a United States citizen, 

defendant replied, "Yes." This was consistent with the 

plea form on his eluding conviction where question 17 

asked if defendant was a United States citizen, and 

"Yes" was circled. 

The defendant also acknowledged in response to 

the judge's question that he read and understood all the 

1

 Padilla v. Kentucky, 559 U.S. 356 (2010). 
12 A-2499-20

questions and information in the plea form. He 

answered them truthfully, that if the judge asked the 

same questions again, his answers would be the same. 

Indeed, defendant gave the same response when Judge 

Polansky asked if he was a citizen and defendant 

replied "Yes." While defendant now claims he 

answered the question in error, his mistake cannot be 

attributed to his counsel to establish deficiency. 

Judge Chase distinguished the facts in State v. Nuñez-Valdéz, 200 N.J. 

129 (2009) and Padilla. 

Unlike in Nuñez-Valdéz, defendant here was not given 

assurances, nor does he contend that counsel materially 

misinformed him about the immigration consequences 

of his plea. And unlike in Padilla, defendant was not 

told to not worry about the immigration consequences. 

. . . . 

It is also important to note Judge Polansky 

advised defendant that he had the right to seek 

independent legal advice regarding his immigration 

status; to which, defendant declined. 

Considering these facts, Judge Chase reasoned:

In this matter, not only did defendant Reyes' 

attorney performance not fall below the professional 

norm, he did not give defendant Reyes false, misleading 

-- misinformed or inadequate advice, but the second 

prong in either matter has not been met that he was 

prejudiced. 

Accordingly, this Court finds defendant has not

satisfied that first prong for . . . ineffective assistance 

of counsel. Even if, as I was just saying, there was 
13 A-2499-20

ineffective assistance of counsel, . . . defendant has not 

demonstrated that the outcome of the proceeding may 

have been different. 

In regards to that, we do have to ask if there is a 

reasonable probability that but for counsel's

unprofessional errors -- which I found here were

professional -- the results of the proceedings would 

have been different. This second prong requires 

demonstrating that defendant was actually prejudiced 

by counsel's alleged deficient performance. This 

requires a demonstration or reasonable probability that 

but for counsel’s unprofessional errors, the results of 

the proceedings would have been different. Only the 

complete denial of one[']s rights to counsel justifies the 

reviewing court to presume defendant was prejudiced. 

For these reasons, Judge Chase found defendant did not show trial 

counsel's performance was deficient or that defendant was prejudiced. As to the 

prejudice prong, the judge further reasoned that 

the plea form and the plea hearing colloquy 

demonstrates, defendant was told that he could be 

deported as a result of his guilty plea, and that he would 

seek individualized advice from the attorney regarding 

immigration consequences. He acknowledged that and 

indicated he understood that; and he also indicated that

he did not want to do that, but he wanted to go forward 

with the plea.

The judge also noted that on the second indictment, the plea agreement

avoided potential consecutive sentences and serious aggravated assault and 

Graves Act, N.J.S.A. 2C:43-6, charges were dismissed. Additionally, 
14 A-2499-20

[defendant] was presented with an opportunity to not 

accept the plea, to seek legal advice from an 

immigration attorney, and he could have asked the 

court to do so. However, he chose to knowingly and 

voluntarily enter his plea agreement rather than proceed 

to trial.

His decision to proceed with the plea is not the 

product of substandard performance of his attorney. He 

has not shown, but for the substandard performance of 

the attorney, the outcome of the case may have been 

different. As such, defendant has . . . failed to 

demonstrate that but for counsel's alleged error, there 

was a reasonable probability that he would not have 

pleaded guilty and would have insisted on proceeding 

to trial on the charges under the full indictment. 

. . . . 

And in regards to the second case, defendant lied 

under oath and stated he was a citizen. He should not 

be able to benefit from these misdeeds now that he's 

been caught and placed in an ICE facility. 

The judge concluded that defendant had not established a prima facie case 

of ineffective assistance of counsel and was not entitled to an evidentiary 

hearing. Accordingly, his PCR application was denied as to both indictments. 

This appeal followed. Defendant argues he was 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 pleas. 
15 A-2499-20

We disagree and affirm substantially for the reasons expressed by Judge 

Chase in his comprehensive oral decision. We add the following comments. 

"[W]here the [PCR] court does not hold an evidentiary hearing, we may 

exercise de novo review over the factual inferences the trial court has drawn 

from the documentary record." State v. O'Donnell, 435 N.J. Super. 351, 373 

(App. Div. 2014). We review a PCR court's legal conclusions de novo. State v. 

Nash, 212 N.J. 518, 541 (2013). 

When considering ineffective assistance of counsel claims, "[j]udicial 

scrutiny of counsel's performance must be highly deferential," and courts "must 

indulge a strong presumption" that counsel's performance was reasonable. 

Strickland v. Washington, 466 U.S. 668, 689 (1984). To succeed on an 

ineffective assistance of counsel claim, a defendant first must establish 

"counsel's representation fell below an objective standard of reasonableness" 

and, second, "there is a reasonable probability that, but for counsel's 

unprofessional errors, the result of the proceeding would have been different." 

Id. at 687-88, 694; accord State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the 

Strickland two-pronged standard). "A reasonable probability is a probability 

sufficient to undermine confidence in the outcome." State v. Pierre, 223 N.J. 

560, 583 (2015) (quoting Strickland, 466 U.S. at 694; Fritz, 105 N.J. at 52). 
16 A-2499-20

Both the United States Supreme Court and the New Jersey Supreme Court 

have extended the Strickland/Fritz test to challenges of guilty pleas based on 

ineffective assistance of counsel. Lafler v. Cooper, 566 U.S. 156, 162-63 

(2012); Missouri v. Frye, 566 U.S. 134, 140 (2012); State v. DiFrisco, 137 N.J. 

434, 456-57 (1994). Defendant must demonstrate with "reasonable probability" 

that the result would have been different had he received proper advice from his 

attorney. Lafler, 566 U.S. at 163 (quoting Strickland, 466 U.S. at 694). Thus, 

in a conviction based on a guilty plea, defendant must show "a reasonable 

probability that, but for counsel's errors, [defendant] would not have pleaded 

guilty and would have insisted on going to trial," Hill v. Lockhart, 474 U.S. 52, 

59 (1985) (footnote omitted), and doing so "would have been rational under the 

circumstances," Padilla, 559 U.S. at 372. See also Nuñez-Valdéz, 200 N.J. at

139 (adopting the same test for ineffective assistance of counsel claims). 

A defendant is not automatically entitled to an evidentiary hearing by 

simply raising a PCR claim. State v. Cummings, 321 N.J. Super. 154, 170 (App. 

Div. 1999) (citing State v. Preciose, 129 N.J. 451, 462 (1992)). An evidentiary 

hearing is required only when: a defendant establishes a prima facie case in 

support of PCR; the court determines there are disputed issues of material fact 

that cannot be resolved by review of the existing record; and the court 
17 A-2499-20

determines that an evidentiary hearing is required to resolve the claims asserted. 

State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)). To establish a 

prima facie case of ineffective assistance of counsel, a defendant must present 

legally competent evidence rather than mere "bald assertions." Cummings, 321 

N.J. Super. at 170. We review a trial court's decision to deny a defendant's 

request for an evidentiary hearing under an abuse of discretion standard. State 

v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000). 

"It is now well-settled that a defense attorney 'must tell a client when 

removal is mandatory – when consequences are certain' in order to provide 

effective assistance of counsel." State v. L.G.-M., 462 N.J. Super. 357, 365 

(App. Div. 2020) (quoting State v. Gaitan, 209 N.J. 339, 380 (2012)). 

"Accordingly, 'when counsel provides false or affirmatively misleading advice 

about the deportation consequences of a guilty plea, and the defendant 

demonstrates that he would not have pled guilty if he had been provided with 

accurate information, an ineffective assistance of counsel claim has been 

established.'" Ibid. (quoting Gaitan, 209 N.J. at 351). 

"Conversely, where 'the law is not succinct and straightforward . . ., a 

criminal defense attorney need do no more than advise a noncitizen client that 

pending criminal charges may carry a risk of adverse immigration 
18 A-2499-20

consequences.'" Ibid. (quoting Padilla, 559 U.S. at 369); see also Gaitan, 209 

N.J. at 381 (holding that where deportation is not mandatory, "counsel must 

highlight for noncitizen clients that entering a guilty plea will place them at risk 

of removal"). "Failure by counsel to adhere to these requirements constitutes 

deficient representation, satisfying the first prong of the Strickland/Fritz

standard." L.G.-M., 462 N.J. Super. at 365; see also Padilla, 559 U.S. at 369; 

Gaitan, 209 N.J. at 380 (same). 

Governed by these standards, we agree with Judge Chase that defendant 

failed to satisfy either prong under the Strickland/Fritz test and was unable to 

demonstrate a reasonable likelihood his PCR claims would ultimately succeed 

on the merits. We reach this conclusion for several reasons. Trial counsel did 

not affirmatively misrepresent the immigration consequences of the guilty pleas. 

The plea forms and plea hearing testimony belie defendant's claims. Trial 

counsel successfully negotiated a favorable plea agreement that resulted in the 

dismissal of numerous serious charges and avoided consecutive prison terms. 

The evidence against defendant on both indictments and the VOP was strong. 

Defendant has not proffered any viable defense to the charges he faced. More 

fundamentally, defendant has not demonstrated there was a reasonable 
19 A-2499-20

probability that but for counsels' alleged errors, he would not have pleaded 

guilty and insisted on going to trial, and that doing so would have been rational. 

In sum, defendant did not satisfy either prong of the Strickland/Fritz test. 

PCR was properly denied without conducting an evidentiary hearing. 

Affirmed.