STATE OF NEW JERSEY VS. MIGUEL TORRES (15-02-0313, ATLANTIC COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE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-3512-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MIGUEL TORRES, a/k/a
MIGUEL TORRES-ZULUAGA,
and MIGUEL ALEJANDRO
TORRES,

     Defendant-Appellant.
___________________________

                   Submitted March 16, 2021 – Decided May 19, 2021

                   Before Judges Fisher and Gilson.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Atlantic County, Indictment No. 15-02-0313.

                   Derek A. DeCosmo, LLC, attorneys for appellant
                   (Derek A. DeCosmo, of counsel and on the briefs; Anne
                   T. Picker, on the briefs).

                   Damon G. Tyner, Atlantic County Prosecutor, attorney
                   for respondent (Melinda A. Harrigan, Assistant
                   Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Miguel Torres-Zuluaga appeals from a March 2, 2020 order

denying his petition for post-conviction relief (PCR). He argues that his plea

counsel failed to fully advise him of the immigration consequences of his guilty

plea and the possibility of an assertion of self-defense. Having conducted a de

novo review of the record, we affirm substantially for the reasons explained by

Judge Donna M. Taylor in her thorough written opinion where she correctly

found that the record established defendant understood the immigration

consequences of his plea and he presented no facts suggesting that he could have

asserted self-defense.

      In 2014, defendant got into a physical fight, used a broken bottle to stab

the victim, and caused serious injuries to the victim.      In November 2015,

defendant pled guilty to second-degree aggravated assault, N.J.S.A. 2C:12-

1(b)(1). At that time, he represented that he was a citizen of the United States.

      Before he was sentenced, defendant and his counsel learned that defendant

was not a United States citizen. Defendant had been born in Colombia, had

come to the United States with his parents as a child, and had become a legal

permanent resident in 2009. Accordingly, defendant was allowed to investigate

the immigration consequences of his plea.


                                                                           A-3512-19
                                        2
      Thereafter, on April 15, 2016, defendant withdrew his first guilty plea,

confirmed that he had the opportunity to consult with an attorney about the

immigration consequences of a guilty plea, and entered a new plea, again

admitting that he had committed second-degree aggravated assault. Both in his

plea forms and in a colloquy with the judge who accepted his guilty plea,

defendant acknowledged he understood he would likely be deported if he pled

guilty. Defendant also testified that he had consulted with an attorney about the

immigration consequences of his plea and, understanding those consequences,

he wanted to plead guilty. In May 2016, defendant was sentenced in accordance

with his plea agreement to five years in prison subject to the No Early Release

Act, N.J.S.A. 2C:43-7.2. He did not file a direct appeal.

      In June 2019, defendant filed a petition for PCR.        He was assigned

counsel, and Judge Taylor heard oral arguments on his petition. On March 2,

2020, Judge Taylor issued an opinion and order denying defendant's petition.

      In her opinion, Judge Taylor correctly set forth the law governing

ineffective assistance of counsel, see Strickland v. Washington, 

466 U.S. 668

,

687 (1984); accord State v. Fritz, 

105 N.J. 42

, 58 (1987), and what counsel must

do when representing a non-citizen who pleads guilty to a crime, see Padilla v.

Kentucky, 

559 U.S. 356

, 366-67 (2010); State v. Gaitan, 

209 N.J. 339

, 351


                                                                           A-3512-19
                                       3
(2012); State v. Brewster, 

429 N.J. Super. 387

, 392 (App. Div. 2013). Judge

Taylor then reviewed the record and found that defendant was accurately

informed that his plea would likely result in his removal from the United States.

      Judge Taylor also found that defendant had not shown that his counsel

was ineffective in failing to advise him of the possibility of claiming self -

defense. Reviewing the record, Judge Taylor found that defendant presented

only bald assertions and there were no facts showing he could have presented a

viable claim of self-defense. See N.J.S.A. 2C:3-4 (setting forth the elements of

self-defense); State v. Cummings, 

321 N.J. Super. 154

, 170 (App. Div. 1999)

(explaining that a defendant "must do more than make bald assertions that he

was denied the effective assistance of counsel").

      Having found that defendant had not shown that his plea was the result of

misinformation or misadvice, Judge Taylor correctly found that defendant's

guilty plea had been knowing, voluntary, and intelligent. State v. Gregory, 

220

N.J. 413

, 418 (2015); see also State v. Johnson, 

182 N.J. 232

, 236 (2005) (citing

R. 3:9-2) (noting courts may only accept pleas which are given knowingly,

intelligently, and voluntarily). Consequently, she rejected defendant's request

to withdraw his guilty plea.




                                                                           A-3512-19
                                       4
      Finally, Judge Taylor correctly held that defendant had not presented a

prima facie showing of ineffective assistance of counsel and, therefore, he was

not entitled to an evidentiary hearing. State v. Porter, 

216 N.J. 343

, 355 (2013);

State v. Preciose, 

129 N.J. 451

, 462 (1992).

      On this appeal, defendant challenges the denial of his PCR petition on two

grounds:

            POINT I – THE COURT ERRED IN DENYING AN
            EVIDENTIARY HEARING SINCE APPELLANT
            HAD MADE A PRIMA FACIE SHOWING OF
            INEFFECTIVE ASSISTANCE OF COUNSEL DUE
            TO FAILURE TO ADVISE APPELLANT OF THE
            CLEARLY      DELETORIOUS    IMMIGRATION
            IMPLICATIONS OF THE PLEA AGREEMENT
            THAT HE CHOSE TO ACCEPT ON ADVICE OF
            COUNSEL.

            POINT II – THE COURT SHOULD HAVE
            GRANTED AN EVIDENTIARY HEARING ON WHY
            APPELLANT WAS NOT PROPERLY ADVISED
            REGARDING A SELF-DEFENSE DEFENSE[.]

      When a PCR court does not conduct an evidentiary hearing, legal and

factual determinations are reviewed de novo. State v. Harris, 

181 N.J. 391

, 419

(2004). The decision to proceed without an evidentiary hearing is reviewed for

an abuse of discretion. 

Brewster, 429 N.J. Super. at 401

.

      The arguments defendant makes on appeal are essentially the same

arguments he presented to Judge Taylor. We reject those arguments for the

                                                                            A-3512-19
                                        5
reasons explained by Judge Taylor in her well-reasoned opinion. We add one

additional comment.

      Defendant appears to contend that he was misadvised when he was told

he may be or likely would be deported if he plead guilty. We reject that

argument.    Neither defense counsel nor a State judge makes the final

determination on whether a defendant will be removed from the United States.

Instead, that decision is made by a federal immigration judge after a hearing.

Consequently, it is not inaccurate when defense counsel or a State judge informs

a defendant who is pleading guilty to a crime that he or she is likely to be or

may be deported. See State v. Blake, 

444 N.J. Super. 285

, 300 (App. Div. 2016).

Because such advice is a prediction of future events over which another

authority has the final say, there is nothing inaccurate in saying a defendant may

or likely will be deported.     The critical question is whether a defendant

understands that by pleading guilty he or she faces the likely consequence of

being removed from the United States.

      Affirmed.




                                                                            A-3512-19
                                        6

Add comment

By

Recent Posts

Recent Comments