Opinion
DOCKET NO. A-2825-10T4
05-24-2012
STATE OF NEW JERSEY, Plaintiff-Appellant, v. DOMINGO BALCACER, Defendant-Respondent.
Catherine A. Foddai, Senior Assistant Prosecutor, argued the cause for appellant (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Foddai, of counsel and on the brief). Glenn A. Garber argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Baxter and Carchman.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 00-01-0139.
Catherine A. Foddai, Senior Assistant Prosecutor, argued the cause for appellant (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Foddai, of counsel and on the brief).
Glenn A. Garber argued the cause for respondent. PER CURIAM
In this matter, we granted the State's motion for leave to appeal an order, entered after an evidentiary hearing, which granted post-conviction relief (PCR), vacated defendant's guilty plea, and restored the matter to the trial calendar. The PCR judge granted relief, finding defendant was deprived of the effective assistance of counsel because his trial attorney failed to advise of the deportation consequences of his 2000 guilty plea in accordance with Padilla v. Kentucky, 559 U.S. ___, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). In appealing, the State argues, among other things, that Padilla established a new rule that has no relevance to the performance of defendant's trial attorney in 2000, ten years before Padilla was decided. Because our Supreme Court has found that Padilla announces a new rule not entitled to retroactive application, State v. Gaitan, 209 N.J. 339, 372 (2012), we must reverse.
The State also argues that defendant's PCR petition was untimely and should therefore have been dismissed without reaching its merits. In light of our disposition of the other issues, we need not determine whether the PCR petition was timely.
On June 26, 2000, defendant pleaded guilty to third-degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5(a)(1). In completing the plea form, defendant then acknowledged he understood "that if [he was] not a United States citizen or national, [he] may be deported by virtue of [his] guilty plea." As later determined at the PCR hearing conducted on January 5, 2011, defendant was not advised by his attorney that the offense to which he entered a guilty plea would inevitably lead to deportation. Defendant was sentenced, on July 17, 2003, to a probationary term conditioned on his incarceration for twenty-two days in the Bergen County jail. He successfully completed the probationary term.
The gap between the date of the guilty plea and the date of sentencing appears to have been related to defendant's incarceration in New York on another matter.
The judge also took into consideration defendant's incarceration for approximately one year in New York on the other matter.
On June 8, 2010, defendant was arrested by order of the Department of Homeland Security based on a New York conviction, which ostensibly constituted a deportable aggravated felony. Defendant filed a PCR petition in New York and, on October 29, 2010, obtained relief from his conviction; that same day, defendant pleaded guilty to a drug possession offense that did not constitute a deportable aggravated felony. Even though the pleadings in the deportation case referred only to the New York conviction as grounds for deportation, the immigration court recognized that the conviction in the New Jersey matter could also compel deportation. As a result, defendant filed a PCR petition in this matter on November 26, 2010, which led, as we have observed, to the entry of the order under review.
The judgment of conviction entered in this matter in 2003 is apparently the only circumstance standing between defendant and deportation to the Dominican Republic, from which he legally emigrated in 1984, when defendant was nine years old. Defendant is the father of three children, all of whom are United States citizens; his parents and siblings reside and are citizens of the United States. The woman with whom defendant resides is a United States citizen and her two children, as to whom defendant has assumed and maintained a parental role, are also citizens.
Since we granted leave to appeal, our Supreme Court determined that Padilla, upon which the PCR judge relied, announced a new rule that should apply only to the performances of attorneys regarding guilty pleas entered by noncitizen defendants after March 31, 2010, the day Padilla was decided. Gaitan, supra, 209 N.J. at 372. Because defendant argues only that he was not given deportation advice, we are bound by Gaitan's holding that a trial attorney's failure to provide any advice regarding the deportation consequences of a guilty plea has no application to the performance of counsel in 2000, and we are, therefore, required to reverse the order under review.
Gaitan's holding regarding the retroactivity of Padilla has no impact on a claim of ineffective assistance of counsel based on the contention that an attorney gave incorrect deportation advice. See Gaitan, supra, 209 N.J. at 352 (noting that, prior to State v. Nunez-Valdéz, 200 N.J. 129 (2009), "it was hardly revolutionary under New Jersey law that an attorney could not actually give wrong or inaccurate information about immigration consequences of a guilty plea without risking an assertion of having provided ineffective assistance").
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We lastly note, however, that upon exhaustion of his state remedies, defendant will likely possess a valid claim to a writ of habeas corpus. The Court of Appeals for the Third Circuit has determined that Padilla is not a new rule and should be applied, in considering whether a noncitizen defendant was deprived of the effective assistance of counsel, to guilty pleas entered prior to Padilla. See United States v. Orocio, 645 F.3d 630, 641 (3d Cir. 2011) (holding that "Padilla followed directly from . . . long-established professional norms" and, therefore, was an "old rule" to be retroactively applied). In addition, the Supreme Court of the United States has since granted certiorari to review Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011), in which a divided court concluded that Padilla is not to be given retroactive effect. In these circumstances, defendant's entitlement to a stay of the judgment of conviction as he continues to pursue his state remedies in order to establish the grounds for federal habeas corpus relief is clear. State v. Barros, ___ N.J. Super. at ___, ___ (App. Div. 2012) (slip op. at 6-7).
The hardship awaiting defendant and his dependents before he is able to exhaust his state remedies and before he can seek a writ of habeas corpus in federal court is palpable. That hardship greatly outweighs the potential prejudice to the State, which admittedly has no interest in the judgment of conviction other than its continued existence; the penal consequences imposed by the judgment have been served. In fact, because today's mandate reinstates the judgment of conviction, the State's remaining interest in the judgment pending defendant's continued pursuit of relief is fully preserved.
The order under review is vacated. The judgment of conviction, which is now reinstated by the vacating of the order under review, is stayed pending our Supreme Court's disposition of defendant's anticipated petition for certification.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION