NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant appeals from an October 29, 2013 order denying his petition for post-conviction relief (PCR). Defendant maintains that he received ineffective assistance from plea counsel. We affirm.

A grand jury indicted and charged defendant with third-degree conspiracy to possess a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5 (Count One); fourth-degree possession of marijuana in an amount over fifty grams, N.J.S.A. 2C:35-10a(3) (Count Two); second-degree possession of marijuana in a quantity of five pounds or more but less than twenty-five pounds, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(10)(b) (Count Three); and third-degree possession of marijuana within 1000 feet of a school zone, N.J.S.A. 2C:35-7 (Count Four).

In January 2008, defendant pled guilty to third-degree conspiracy to possess CDS with intent to distribute, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5 (Count One); and third-degree distribution of CDS, N.J.S.A. 2C:35-5a(1) (Count Three as amended). Before testifying at the plea hearing, defendant consulted with plea counsel and completed a plea form. In answer to question number seventeen on the form, defendant admitted understanding he may be deported by pleading guilty if he was not a United States citizen or national.

Defendant testified at the plea hearing that another individual mailed him a package of marijuana. Defendant stated that he knowingly accepted the package understanding that the drugs would be sold. Defendant indicated that he accepted the package at his home, which had deliberately been addressed to a fictitious name, and testified at the hearing that he intended to distribute the drugs. The following colloquy then occurred at the hearing:

The judge then accepted the plea.

In September 2012, defendant filed a pro se petition for PCR contending plea counsel failed to inform him deportation was "a mandatory consequence of his guilty plea." The court assigned PCR counsel, who amplified defendant's PCR arguments. With the assistance of PCR counsel, defendant filed a certification indicating primarily that he "wanted to take this case to trial[,]" plea counsel did not "investigate the matter[,]" and plea counsel "never discussed any immigration consequences with [defendant]." Defendant's mother also submitted a certification indicating that plea counsel never advised defendant about the immigration consequences of the guilty plea.

In August 2013, the court conducted oral argument and granted defendant's request for an evidentiary hearing. In October 2013, the PCR judge conducted the hearing, at which defendant and plea counsel testified. The PCR judge found plea counsel more credible than defendant, rejected defendant's contentions, and rendered a written decision.

The PCR judge acknowledged that defendant did not allege that plea counsel affirmatively misadvised defendant about the immigration consequences of his guilty plea, and the judge emphasized defendant knew there was a possibility of immigration consequences when he signed the plea agreement. The PCR judge also rejected defendant's remaining contentions, which she concluded were merely bald assertions belied by the record.

On appeal, defendant raises the following points:

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 expressed by the PCR judge in her written opinion. We add the following comments.

A deprivation of the constitutional right to effective assistance of counsel occurs when "counsel [is] not functioning as the counsel guaranteed by the Sixth Amendment[,]" State v. Gaitan, 209 N.J. 339, 349-50 (2012) (citation and internal quotation marks omitted), cert. denied, ___ U.S. ___, 133 S.Ct. 1454, 185 L. Ed. 2d 361 (2013), and counsel's deficient performance causes the defendant prejudice, Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).

Both the United States Supreme Court and the New Jersey Supreme Court have extended the Strickland test to challenges of guilty pleas based on ineffective assistance of counsel. Lafler v. Cooper, 566 U.S. ___, ___, 132 S.Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. ___, ___, 132 S.Ct. 1399, 1405, 182 L. Ed. 2d 379, 387 (2012); State v. DiFrisco, 137 N.J. 434, 456-57 (1994). A defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. [at 2068], 80 L. Ed. 2d [at 698]).

The first prong of the Strickland ineffective assistance of counsel test may be met where a defendant shows counsel's representation fell short of the prevailing standards expected of criminal defense attorneys. Padilla v. Kentucky, 559 U.S. 356, 366-67, 130 S.Ct. 1473, 1482, 176 L. Ed. 2d 284, 294 (2010). Counsel's performance is not deficient if "a defendant considering whether or not to plead guilty to an offense receives correct information concerning all of the relevant material consequences that flow from such a plea." State v. Agathis, 424 N.J.Super. 16, 22 (App. Div. 2012). The second prong requires the defendant establish a reasonable probability that he or she would not have pled guilty but for counsel's errors. Gaitan, supra, 209 N.J. at 351.

We reject defendant's argument that plea counsel was deficient for giving him misleading and incorrect advice regarding the immigration consequences of pleading guilty. In State v. Nuñez-Valdéz, 200 N.J. 129, 143 (2009), our Supreme Court held a defendant can satisfy "the prejudice prong of the ineffective-assistance-of-counsel analysis by showing that he would not have pled guilty but for the inaccurate information from counsel concerning the deportation consequences of his plea." The United States Supreme Court has clarified that counsel's duty is not limited to avoiding "false or misleading information[,]" as our Court identified in Nuñez-Valdéz, supra, 200 N.J. at 138, but also includes an affirmative duty to inform a defendant entering a guilty plea of the relevant law pertaining to mandatory deportation. Padilla, supra, 559 U.S. at 368-69, 130 S. Ct. at 1483-84, 176 L. Ed. 2d at 295-96. The United States Supreme Court 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 (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, ___ U.S. ___, ___, 133 S.Ct. 1103, 1113, 185 L. Ed. 2d 149, 162 (2013), the Court concluded the rule announced in Padilla imposed a new obligation and announced a new rule of law. Accordingly, its holding is applied prospectively and "defendants whose convictions became final prior to Padilla therefore cannot benefit from its holding." Ibid.

Here, defendant's plea, entered in 2008, predates Padilla. At the time defendant pled guilty, New Jersey case law instructed that "a defendant's guilty plea is not vulnerable because neither the court nor counsel warned the defendant about the deportation consequences of the guilty plea." Gaitan, supra, 209 N.J. at 361. Guilty pleas entered prior to Padilla had to be reviewed to determine whether counsel provided affirmative misadvice regarding the plea's immigration consequences. State v. Santos, 210 N.J. 129, 144 (2012). "Only if defendant's attorney affirmatively gave incorrect advice about the deportation consequences of his guilty plea might he be entitled to set aside his conviction in accordance with the holding of Nuñez-Valdéz." State v. Brewster, 429 N.J.Super. 387, 394-95 (App. Div. 2013). Consequently, the PCR judge properly evaluated defendant's claims under the law then applicable to claims of ineffective assistance of counsel regarding the deportation consequences of conviction following a guilty plea.

This record does not support a claim of affirmative misadvice about the immigration consequences of the guilty plea. The plea judge reviewed defendant's response to question seventeen on his plea form and reviewed with defendant his understanding that his guilty plea could affect his immigration status. There is no support for defendant's PCR assertion that plea counsel failed to properly discuss immigration consequences with him. Defendant has presented no other evidence to demonstrate counsel's advice deviated from the "prevailing professional norms" for a criminal defense attorney at the time the pleas were entered. Padilla, supra, 559 U.S. at 366, 130 S. Ct. at 1482, 176 L. Ed. 2d at 294 (quoting Strickland, supra, 466 U.S. at 688, 104 S. Ct. [at 2065], 80 L. Ed. 2d [at 694]). As a result, defendant failed to meet the first prong under Strickland, that plea counsel's performance was deficient. We are also persuaded that the alleged deficiencies raised by defendant clearly fail to show with "reasonable probability" that the result would have been different had he received proper advice from plea counsel. Consequently, defendant has failed to meet prong two of Strickland.

We conclude there is no merit to defendant's remaining assertion that we should remand for an evidentiary hearing to address whether plea counsel failed to adequately investigate the charge or provide defendant with discovery. The PCR judge correctly concluded that defendant's arguments regarding investigation of the case and review of discovery amounted to nothing more than bald assertions. "[T]o establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). We are persuaded that the "bald assertions" made by defendant here plainly lacked merit, and that his contentions are belied by the record. As a result, there is no basis to remand for another evidentiary hearing.

Affirmed.