STATE OF NEW JERSEY v. ALEXIS VASQUEZ

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. ALEXIS VASQUEZ, Defendant–Appellant.

DOCKET NO. A–5161–11T3

Decided: April 25, 2014

Before Judges Waugh and Nugent. Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Megan B. Kilzy, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

Defendant Alexis Vasquez appeals from the denial without an evidentiary hearing of his post-conviction relief (PCR) petition.   He presents these arguments:

POINT ONE

DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD BE REMANDED WITH INSTRUCTIONS TO THE TRIAL COURT TO ORDER THE OFFICE OF THE PUBLIC DEFENDER TO APPOINT NEW PCR COUNSEL WHO WILL FULFILL HIS OR HER OBLIGATION TO PROVIDE DEFENDANT WITH THE EFFECTIVE ASSISTANCE OF COUNSEL.

POINT TWO

THE TIME BAR OF R. 3:22–12 SHOULD NOT BE APPLIED TO DEFENDANT'S PETITION FOR POST CONVICTION RELIEF.

POINT THREE

THE FAILURE OF TRIAL COUNSEL TO ADVISE DEFENDANT THAT HIS GUILTY PLEAS AND SUBSEQUENT CONVICTIONS IN STATE COURT, WOULD RESULT IN THE ENHANCEMENT OF HIS SENTENCE PENDING IN FEDERAL COURT, DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

POINT FOUR

THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.

Having considered defendant's arguments in light of the record and controlling law, we affirm.

Defendant has a lengthy criminal history.   From 1999 through 2008 he was charged with, pled guilty to, and served custodial terms for the following offenses:  second-degree eluding, N.J.S.A. 2C:29–2(b), third-degree distribution of a controlled dangerous substance (CDS), cocaine, within 1000 feet of school property, N.J.S.A. 2C:35–7, and third-degree conspiracy to commit theft by deception, N.J.S.A. 2C:5–2 and N.J.S.A. 2C:20–4, all of which he committed in 1999;  and third-degree conspiracy to distribute a CDS, cocaine, N.J.S.A. 2C:5–2 and N.J.S.A. 2C:35–5(a)(1) and –5(b)(1), and third-degree hindering apprehension, N.J.S.A. 2C:29–3(b)(3), both of which he committed in 2004.   In 2008, while awaiting sentencing on a federal crime, defendant pled guilty to fourth-degree possession with intent to distribute a CDS, marijuana, N.J.S.A. 2C:35–5(a)(1) and –5(b)(12).

Defendant filed direct appeals from none of those convictions.   Rather, he challenged them in the PCR petition that he filed on April 8, 2011, which is now before us.   He is currently serving his federal sentence.

Defendant's primary contention on this appeal is that the attorneys who represented him over the years did not tell him when he entered his guilty pleas that his convictions might result in enhanced sentences for future criminal conduct.   Defendant also contends that when he pled guilty in 2008 to the CDS offense, his attorney “neglected to explain ․ the effect his [S]tate guilty plea would have on his pending federal sentence;  or in colloquial terms, how much time he was likely to serve.”

Defendant's arguments are without sufficient merit to warrant discussion in a written opinion.   R. 2:11–3(e)(2).   We add only the following comments.   In State v. Wilkerson, 321 N.J.Super. 219, 227 (App.Div.), certif. denied, 162 N.J. 128 (1999), we held that an attorney who does not advise a client “of possible or even potential enhancement consequences of future aberrant conduct is not ineffective․  There is no constitutional requirement for such advice.   It involves only a collateral issue.”

Defendant argues that Wilkerson is distinguishable from his case, at least with respect to his 2008 plea, because when he pled guilty to possession with intent to distribute marijuana, his federal sentence was pending.   He asserts that his 2008 state conviction for possession with intent to distribute marijuana would result in the probable, if not mandatory, enhancement of the federal sentence.   But defendant has provided us with nothing more than a general reference to the federal sentencing manual and the state prosecutor's oblique references at the sentencing and PCR hearings to the federal sentence.   He has not included in the record before us transcripts of his plea and sentencing in federal court, a certification from his attorney in the federal proceedings, or any other documents relevant to his federal sentence, to support the argument he now presents.   Nor has he discussed the sentencing range to which he would have been exposed on the state CDS charge had he not accepted the plea agreement.   For those reasons, we cannot discern whether the federal court actually enhanced appellant's sentence because of the 2008 guilty plea and we cannot evaluate his claim that had he received proper advice about enhancement of the federal sentence he would not have pled guilty to the 2008 CDS charge.

Affirmed.

PER CURIAM

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