NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0035-20 STATE OF NEW JERSEY, Plaintiff-Respondent, v. MATEO FRANCISCO-ACOSTA, Defendant-Appellant. _____________________________ Submitted November 16, 2021 – Decided December 30, 2021 Before Judges Currier and DeAlmeida. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 03-09-1231. Raymond S. Santiago, attorney for appellant. Bradley D. Billhimer, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Chief Appellate Attorney, of counsel and on the brief). PER CURIAM Defendant Mateo Francisco-Acosta appeals from the July 24, 2020 order of the Law Division denying his fourth petition for post-conviction relief (PCR). We affirm. I. In 2003, a grand jury indicted defendant, charging him with: (1) third- degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35 -5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); and second-degree possession of a firearm while engaged in drug activity, N.J.S.A. 2C:35-5 and N.J.S.A. 2C:39-4.1(a) (count three). On November 13, 2003, pursuant to an agreement, defendant entered a guilty plea to counts two and three of the indictment. Defendant, who is not a United States citizen, was represented by counsel. Next to the question "[d]o you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty?" the plea form has the entry "N/A." The entry was made by defendant's attorney who was at the time in possession of a police report indicating that defendant is not a United States citizen. On January 16, 2004, the court sentenced defendant pursuant to the agreement to an aggregate five-year term of imprisonment. The State agreed to A-0035-20 2 dismiss count one of the indictment, along with all charges arising from the same incident against co-defendant Zulma Baez, who was defendant's girlfriend. On July 19, 2004, defendant filed a petition for PCR. He alleged that the trial court failed to elicit a sufficient factual basis to accept his guilty plea to the weapons charge. The trial court denied defendant's first PCR petition on August 25, 2004. Defendant did not appeal from the denial of his first PCR petition. On July 26, 2004, while defendant's first PCR petition was pending, he received a notice from the Immigration and Naturalization Service (INS) that he was subject to deportation as a result of his guilty plea. On April 21, 2006, defendant filed his second PCR petition. On April 25, 2006, the trial court denied defendant's second PCR petition pursuant to Rule 3:22-4 because the claims he raised could have been, but were not, raised in the first PCR petition. On May 11, 2006, defendant moved to reconsider the order denying his second PCR …
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