SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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STATE OF NEW JERSEY, Plaintiff

- Respondent,

v. MIGUEL VASQUEZ, a/k/a VASQUEZ

- HERNANDEZ, Defendant

- Appellant.
Argued November 2, 2020

– Decided Before Judges Currier and DeAlmeida. On appeal from the Superior Court of New Jersey, Law Division, Union County, Accusation No. 01

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. Leslie B. Posnock argued the cause for appellant ( Schwartz & Posnock , attorneys; Leslie B. Posnock, of counsel and on the briefs)

. Michele C. Buckley, S pecial Deputy Attorney General/Acting Assistant Prosecutor , argued the cause for respondent (Lyndsay V. Ruotolo, Acting Union County Prosecutor, attorney ; Albert Cernada s , Jr., Special Deputy Attorney General/Acting Assistant Prosecutor , o f c ounsel a nd o n t he b rief )

.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

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December 18 , 20202 A

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PER CURIAM Defendant Miguel Vasquez appeals from the denial of his petition for post

- conviction relief (PCR) and motion to vacate his guilty plea

. Defendant contends the trial court erred in denying his motion to vacate the plea because it la cked an adequate factual basis and t he Slater 1 factors weigh in favor of
vacat ing the plea . We affirm. In June 2001, defendant and a group of people set fire to a car that belonged to his building's superintendent. Eyewitnesses identified d efendant as the person who started the fire. Defe ndant was charged with second

- degree aggravated arson in violation of N.J.S.A. 2C:17

- 1(a)(2). In July 2001, defe ndant met with counsel to review the charge, discovery,
and a plea offer

. Subsequently, defendant pled guilty to third

- degree arson in violation of N.J.S.A. 2C:17

- 1(b)(2). 2 Under the plea agreement, the State sought a sentence of three years' probation, 180 days in county jail, and payment of restitution.

1 State v. Slater , 198 N.J. 145, 157

- 58 (2009).

2 The judgment of conviction reflects defendant correctly pled guilty to third

degree arson, however, the judgment of conviction mistakenly lists the statute for second

- degree arson.3 A

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On the plea form, d efendant indicated he committed the offense to which he was pleading guilty and he responded affirmatively to question seventeen, which asked: "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty?" 3
D efendant appeared a longside three other individuals entering guilty pleas
for different offense s . When defendant responded he was not a U

. S

. citizen, the judge asked: "you understand by pleading guilty this could affect your citizenship and/or residency status?" Defendant responded: "Yes, ma'am." The judge inquired whether defendant had sufficient time to review the charge against him and th e plea form with his attorney; defendant responded affirmatively. Defendant also indicated he was not forced to plead guilty and he was satisfied with his attorney's representation

. After the plea judge explain ed the rights defendant was forfeiting by

e ntering a guilty plea, she elicited a factual basis:

THE COURT: [O]n June 4th, in the City of Plainfield, did you unlawfully and purposely start a fire recklessly burning a car and placing others in danger because of that? [DEFENDANT]: Yes.

3 Defendant was born in the Dominican Re public but was deemed a permanent legal resident of the United States in 1993.4 A

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After defens e counsel stated he was satisfied there was a factual basis for defendant's plea, the judge accepted the plea. Defendant was sentenced in October 2001. The judge found the mitigating factors outweighed the aggravating factors and imposed a sentence bel ow what the State sought under the plea agreement. Defendant was sentence d
to sixty days in county jail, three years' probation , and restitution and other fines. In November 2017, defendant filed a PCR petition. In January 2019, defendant amended his P CR petition and moved to vacate his guilty plea. Defendant argued: (1) he was entitled to withdraw his guilty plea because it was not supported by an adequate factual basis; (2) he was entitled to withdraw his guilty plea because the Slater factors weighe d in his favor; (3) he was deprived of the effective assistance of counsel because his plea attorney did not properly inform him of the immigration consequences of his guilty plea and his sentencing attorney failed to review the presentence report with him , know his name, and tell the court about defendant's claim of innocence ; and (4) he was entitled to withdraw his guilty plea or be resentenced because he received an illegal sentence. In June 2019, a fter entertaining oral argument, the PCR judge issued a comprehensive, well

- reasoned decision and order denying defendant's petition5 A

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for PCR and other relief. The judge found defendant's plea was supported by a proper factual basis as his responses to questions at the plea hearing established the necessary elements for an arson conviction. The judge also found defendant was not entitled to withdraw his plea under Slater because each of the four required factors weighed against defendant

— he did not assert a colo rable claim of innocence, he did not have clear, forceful reasons to withdraw his plea, he entered his guilty plea pursuant to a plea agreement , and the State would incur unfair prejudice fr om a withdraw al of the plea. In addressing defendant's ineffecti ve assistance of counsel claim, the judge found defendant's claim was time

- barred because he did not file his PCR petition until sixteen years after his conviction and he did not establish excusable neglect or fundamental injustice. The judge also found d efendant's claim lacked merit because his plea counsel did not provide affirmative mistaken advice and he could not show that but for counsel's alleged errors, he would have rejected the plea and gone to trial. Moreover, the record showed defendant's sent encing counsel informed the court he had reviewed the presentencing report with defendant and advised the court that there "was some denial as to [defendant's] charge[.]"6 A

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Finally, the PCR judge found that while defendant's judgment of conviction incorrec tly reflected the wrong statute, it was clear he was convict ed

o f third

- degree arson, and the imposed sentence was within the statutory range for third

- degree arson.
On appeal , defendant presents a single point for our review:
THE COURT BELOW ERRED IN DENYING DEFENDANT'S MOTION TO VACATE HIS GUILTY PLEA AS NO ADEQUATE FACTUAL BASIS FOR SAME WAS ESTABLISHED A. Defendant Must Be Permitted to Withdraw His Plea Even Pursuant to the Analysis Set Forth in State v. Slater
i . Colorable Claim of Innocence ii. Nature and Strength of Defendant's Reasons for Withdrawal a. Defendant's Plea Was Not Knowing and Voluntary in Accordance with R. 3:9

- 2 iii. Existence of a Plea Bargain iv. Prejudice to State/Advantage to the Accu sed Under Rule 3:9

- 2 , a judge "shall not accept" a guilty plea without first eliciting a "factual basis for the plea." T he trial court must be " satisfied from the lips of the defendant that he committed the acts which constitute the crime. "7 A

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State v. Sm ullen , 118 N.J. 408, 415 (1990) (quoting State v. Barboza , 115 N.J. 415, 422 (1989) )

. Thus, a proper factual basis for a guilty plea " must obviously include defendant's admission of guilt of the crime or the acknowledgment of facts constituting the essential elements of the crime. " State v. Sai n z , 107 N.J. 283, 293 (1987). A factual basis may be established in " one of two forms; defendant may either explicitly admit guilt with respect to the elements or may

' acknowledge [ ] .

. . f acts constituting the essential elements of the crime. '" State v. Campfield , 213 N.J. 218, 231 (2013) (quoting Sainz , 107 N.J. at 293). We are satisfied from our review of the record that defendant's guilty plea was supported by an adequate factual basi s. Defendant answered affirmatively to the plea court's question, establishing the first and second elements of the offense. In turning to the Slater issue, defendant has not shown an entitlement to relief under the four factors that gui d e whether to a llow a defendant to vacate and withdraw a guilty plea. 1 98 N.J. at 157

- 58. These factors are: (1) whether 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. We review a trial court's denial of a motion8 A

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to withdraw a guilty plea under an abuse of discretion standard. State v. Tate , 220 N.J. 393, 404 (2015). First, defendant failed to assert a colorable claim of innocence

. Although d efendant asserts during the pre

- sentence interview that he was sleeping during the incident , he also acknowledged he pled guilty and "took the six mo nths." H e did not deny setting fire to the superintendent's car. Turning to the second factor, defendant's proffered reasons for withdrawing his plea are meritless. The record reflects the plea was knowing and voluntary. Defendant indicated he underst ood the charge against him, as well as the plea agreement and its consequences in his responses to questions both on the plea form and from the judge at his plea hearing. Defendant stated he was not forced to plead guilty and he was satisfied with his att orney's services

. The PCR judge also correctly found the third Slater factor weighed against defendant because he received a very favorable sentence. Defendant faced
exposure up to five years' incarceration for a third

- degree arson conviction but only received a sentence of sixty days' incarceration, three years' probation , and monetary penalties. The error on the judgment of conviction is immaterial. The9 A

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judgment notes correctly that defendant was convicted of and sentenced on the third

- degree arson charge. Finally, if defendant was permitted to withdraw his plea , it would result in unfair prejudice to the State given the sixteen

- year gap between defendant's conviction and the filing of his PCR petition. This passage of time would certainly cause great difficulty in locating witnesses and presenting evidence at trial. We are satisfied from our review of the r ecord that the PCR judge did not abuse his discretion in denying defendant's motion to withdraw his plea.
D efendant failed to meet his burden under Slater to withdraw his plea. We affirm the denial of defendant's motion to withdraw his guilty plea and the denial of his p etition . We remand to the trial court only to correct the judgment of conviction to accurately reflect the proper statute under which defendant was convicted of third

- degree arson. Affirmed and remanded with instructions to corre ct the judgment of conviction. We do not retain jurisdiction.