STATE OF NEW JERSEY VS. LUDGI G. DESROCHES(08-08-1869, 08-11-2520 AND 08-11-2521, MONMOUTH COUNTYAND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5357-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LUDGI G. DESROCHES,
Defendant-Appellant.
______________________________
Submitted November 2, 2017 – Decided November 14, 2017
Before Judges Simonelli and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
08-08-1869 and Accusation Nos. 08-11-2520 and
08-11-2521.
Joseph E. Krakora, Public Defender, attorney
for appellant (William Welaj, Designated
Counsel, on the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Mary R.
Juliano, Assistant Prosecutor, of counsel;
Anthony Valenzano, Legal Assistant, on the
brief).
PER CURIAM
Defendant appeals from the May 31, 2016 Law Division order
denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
A grand jury returned a one-count indictment charging
defendant with third-degree possession of cocaine, N.J.S.A. 2C:35-
10(a)(1). On November 10, 2008, defendant pled guilty to this
charge, as well as to two additional charges (third-degree
conspiracy to possess cocaine, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-
10(a)(1); and third-degree distribution of cocaine, N.J.S.A.
2C:35-5(b)(3)), which were set forth in two accusations the
prosecutor issued on that date. Although defendant was not a
United States citizen, he answered "No" to Question No. 17 on the
plea agreement form that 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?"
Pursuant to the negotiated plea, the judge sentenced
defendant on December 19, 2008 to concurrent three-year terms of
probation on each charge. Defendant did not file a direct appeal
from his conviction and sentence.
On August 9 and 10, 2011, defendant pled guilty to new drug
charges1 and to violations of probation. At the plea hearing,
1
Specifically, defendant pled guilty to two counts of third-degree
distribution of cocaine, N.J.S.A. 2C:35-5(b)(3).
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defendant admitted he was not a citizen of the United States. He
also acknowledged that if he pled guilty to the charges, it would
likely result in his deportation. Pursuant to the negotiated
plea, the judge sentenced defendant on November 18, 2011 to an
aggregate six-year term, with a three-year period of parole
ineligibility, on the two drug charges, and a concurrent five-year
aggregate term for the violations of probation.
On September 11, 2014, more than five years after he was
sentenced on December 19, 2008 on the initial set of charges,
defendant filed his PCR petition. Defendant argued he was entitled
to have his November 10, 2008 plea vacated on ineffective
assistance of counsel grounds because his attorney did not provide
him with any advice concerning the immigration consequences of his
guilty plea. Defendant also argued that his petition should be
accepted as timely because he did not become aware that he was
subject to deportation until June 13, 2014, when an Immigration
and Customs Enforcement (ICE) detainer was lodged against him.
Following oral argument, Judge Ronald Reisner rendered a
comprehensive thirty-seven page written decision denying
defendant's petition without an evidentiary hearing. The judge
concluded that defendant's petition was barred by the five-year
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limitations period set forth in Rule 3:22-12(a)(1).2 Contrary to
defendant's assertion that he only became aware of the immigration
consequences of the November 10, 2008 plea in June 2014, the judge
found that defendant was aware he could be deported because of his
drug charges no later than the August 9, 2011 plea hearing, when
this issue was discussed in detail. This was well within the
five-year limitations period, yet defendant did not file his PCR
petition until September 11, 2014, almost nine months after this
period expired.
Judge Reisner also denied defendant's request to withdraw his
plea based upon his allegation that his plea attorney did not give
him any advice on the immigration consequences of his November 10,
2008 guilty plea. By way of background, "a defendant can show
ineffective assistance of counsel by proving that his [or her]
guilty plea resulted from 'inaccurate information from counsel
concerning the deportation consequences of his [or her] plea.'"
State v. Brewster, 429 N.J. Super. 387, 392 (App. Div. 2013)
(quoting State v. Nuñez-Valdéz, 200 N.J. 129, 143 (2009)).
2
Rule 3:22-12(a)(1) provides that a defendant's first PCR petition
must be filed within five years of the date the judgment of
conviction is entered, "unless it alleges facts showing that the
delay beyond said time was due to defendant's excusable neglect
and that there is a reasonable probability that if the defendant's
factual assertions were found to be true enforcement of the time
bar would result in a fundamental injustice[.]"
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Counsel's duty includes an affirmative responsibility to
inform a defendant entering a guilty plea of the relevant law
pertaining to mandatory deportation. Padilla v. Kentucky, 559
U.S. 356, 368-69, 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284, 295
(2010). Our Supreme Court has made clear that counsel's "failure
to advise a noncitizen client that a guilty plea will lead to
mandatory deportation deprives the client of the effective
assistance of counsel guaranteed by the Sixth Amendment." State
v. Barros, 425 N.J. Super. 329, 331 (App. Div. 2012) (citing
Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483, 176 L. Ed.
2d at 296).
In Chaidez v. United States, 568 U.S. 342, 133 S. Ct. 1103,
185 L. Ed. 2d 149 (2013), however, the Court concluded that
Padilla, by imposing a new obligation and a new rule of law, would
be applied prospectively only. Id. at 358, 133 S. Ct. at 1113,
185 L. Ed. 2d at 162. Accordingly, "defendants whose convictions
became final prior to Padilla . . . cannot benefit from its
holding." Ibid.Guilty pleas entered prior to Padilla are reviewed to
determine whether counsel provided affirmatively false information
regarding the plea's immigration consequences. State v. Santos,
210 N.J. 129, 143-44 (2012). "Only if defendant's attorney
affirmatively gave incorrect advice about the deportation
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consequences of his [or her] guilty plea might he [or she] be
entitled to set aside his [or her] conviction in accordance with
the holding of Nuñez-Valdéz." Brewster, supra, 429 N.J. Super.
at 394-95.
Applying these principles, Judge Reisner noted that defendant
entered his November 10, 2008 plea prior to Padilla. The judge
found "[t]here [was] no evidence presented here that . . .
defendant's plea counsel provided any false or affirmatively
misleading advice regarding . . . defendant's immigration
consequences." Thus, consistent with Nuñez-Valdéz, Judge Reisner
denied defendant's request to set aside his guilty plea.
Finally, the judge found that defendant failed to establish
a basis for plea withdrawal under State v. Slater, 198 N.J. 145,
158-59 (2009). Slater requires a court to weigh the following
factors in considering 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 prejudice to the State or unfair advantage to the
accused." Ibid.The judge found that defendant did not assert his innocence
of the drug charges to which he pled. As noted above, the judge
also found that defendant failed to demonstrate a strong reason
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for withdrawing his plea because his attorney was not ineffective
under Nuñez-Valdéz. Defendant entered his plea pursuant to a plea
bargain and he was sentenced in accordance with that agreement.
Finally, Judge Reisner found that the State would be prejudiced
due to the eight-year gap between defendant's conviction in 2008
and the filing of the PCR petition in 2016. Weighing the four
Slater factors, the judge found no basis for vacating defendant's
guilty plea. This appeal followed.
On appeal, defendant raises the following contentions:
POINT I
THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR [PCR], IN PART, UPON
THE PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-
12(a)(1).
POINT II
THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR [PCR] SINCE HIS
GUILTY PLEA WAS NOT KNOWINGLY AND VOLUNTARILY
ENTERED IN LIGHT OF THE FAILURE OF THE TRIAL
COURT, TRIAL COUNSEL OR THE STATE TO EVEN
REMOTELY INFORM THE DEFENDANT REGARDING THE
IMMIGRATION CONSEQUENCES ARISING OUT OF HIS
PLEA.
When petitioning for post-conviction relief, the defendant
must establish by a preponderance of the credible evidence that
he or she is entitled to the requested relief. State v. Nash, 212
N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992).
To establish a prima facie claim of ineffective assistance of
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counsel, the defendant is obliged to show not only the particular
manner in which counsel's performance was deficient, but also that
the deficiency prejudiced his right to a fair trial. Strickland
v. Washington, 466 U.S. 668, 687, l04 S. Ct. 2052, 2064, 80 L. Ed.
2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). There
is a strong presumption that counsel "rendered adequate assistance
and made all significant decisions in the exercise of reasonable
professional judgment." Strickland, supra, 466 U.S. at 690, 104
S. Ct. at 2066, 80 L. Ed. 2d at 695.
We have considered defendant's contentions in light of the
record and applicable legal principles and conclude that they are
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons
set forth by Judge Reisner in his thoughtful and thorough written
decision.
Affirmed.
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