Opinion
DOCKET NO. A-1981-11T4
2013-10-17
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARCOS BARRIOS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Ashrafi.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Accusation No. A-360-02.
Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by GRAVES, J.A.D.
Defendant Marcos Barrios appeals from an order dated April 18, 2011, denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
On February 14, 2002, when he was twenty-two years old, defendant pled guilty to a one-count accusation charging him with third-degree distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 35-5(b)(3). In exchange for the plea, the State agreed to recommend that defendant would be sentenced to a term of probation with up to 364 days in the county jail.
Prior to entering his plea, defendant completed a plea form with his attorney. Question seventeen asked: "Do 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 possible answers were "Yes," "No," and "N/A," and "Yes" was circled.
At his plea hearing, defendant admitted he distributed ecstasy to an undercover narcotics officer in Bergen County on August 7, 2001, and he confirmed he was entering his plea voluntarily. Defendant also testified as follows:
THE COURT: Have you had enough time to go over your case with your attorney?
THE DEFENDANT: Yes.
THE COURT: And did he answer all of your questions to your satisfaction, explain to you all of your rights and responsibilities in connection with the charge or charges against you?
THE DEFENDANT: Yes, sir.
THE COURT: Satisfied with his services?
THE DEFENDANT: Yes.
. . . .
THE COURT: Now, I'd like you to take a look at the copy of the plea form that's there. Are those your initials and your signature?
THE DEFENDANT: Yes.
THE COURT: Did you sign that voluntarily?
THE DEFENDANT: Yes.
THE COURT: And you read it and went over it with your attorney before you signed it?
THE DEFENDANT: Yes.
THE COURT: And do you have any questions about any of it?
THE DEFENDANT: No, sir.
THE COURT: You understand it all?
THE DEFENDANT: Yes.
THE COURT: And you wish to plead guilty to the charge in the accusation; is that correct?
THE DEFENDANT: Yes.
On November 15, 2002, the court sentenced defendant to a non-custodial, two-year term of probation. Defendant did not file a direct appeal. However, in October 2009, defendant sought to withdraw his guilty plea.
In his motion to vacate his guilty plea, defendant alleged, among other things, that his attorney "failed to inform him of the deportation consequences of his guilty plea." The trial court denied defendant's motion on January 20, 2010. In a written decision, the court stated:
[D]efendant argues that the 2002 plea form is misleading. Defendant's argument here is unconvincing as this court is not in a position to allow withdrawal of all guilty pleas entered prior to the 2008 revision simply because the previous plea form might have been misleading. In other words, a defendant seeking to withdraw his guilty plea must provide more support for his argument. The defendant here understood English well enough to participate in court proceedings without the aid of the interpreter, so the court finds that the defendant understood the language of the plea agreement. The 2008 revision of the plea form is not, in and of itself, enough to withdraw a guilty plea.
. . . .
The court declines to find any reason to afford defendant withdrawal of his guilty plea. Defendant fails to meet either of the Strickland requirements, and there exists no fundamental fairness exception. Counsel did
not offer the defendant ineffective assistance of counsel, and despite defendant's contrary claim, there is no reason to believe that, but for counsel's advice, defendant would not have pled guilty to his offense.
Under the two-prong test for ineffective assistance of counsel established in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), a defendant must show counsel's performance was deficient and the deficient performance prejudiced the defendant.
Defendant appealed from the order denying his motion to vacate his plea. In an unreported opinion, we affirmed the order entered by the trial court. State v. Barrios, Docket No. A-2686-09 (App. Div. Dec. 14, 2010). In our prior opinion, we stated:
[W]e do not believe that fundamental fairness warrants withdrawal of the guilty plea. . . . The plea agreement, which defendant certified he read and signed independent of counsel, informed defendant that "if [he is] not a United States citizen or national, [he] may be deported by virtue of [his] plea of guilty." At the plea hearing, defendant testified under oath that he was satisfied with counsel's representation, that he understood the nature of the charges against him, and that he signed the plea agreement knowingly, intelligently, and free of coercion. We are satisfied that the interests of justice do not compel withdrawal of defendant's plea.
[Id., slip op. at 11 (alterations in original).]
Defendant filed his PCR petition in February 2011, more than eight years after he was sentenced, and assigned counsel submitted a letter brief to the court in support of defendant's application. In a certification dated February 15, 2011, defendant claimed he was denied effective assistance of trial counsel because his attorney did not inform him that his guilty plea would result in his mandatory removal from the United States:
2. On February 14, 2002, I pleaded guilty to third-degree distribution of CDS. I believe, however, that I received the ineffective assistance of trial counsel and now ask the court to permit the withdrawal of my previously entered guilty plea and allow this matter to proceed to trial.
3. I am a 31-year-old native of Guatemala and was a lawful permanent resident of the United States for some 21 years prior to my plea of guilty to this matter on February 14, 2002.
4. Prior to my plea, my trial attorney did not ask me my immigration status, nor did counsel advise me that deportation was mandatory for the crime (distribution of CDS) that I pleaded guilty to.
5. Had I known at the time of my plea that such a conviction would result in my mandatory deportation, I would not have pleaded guilty. All of my friends and family live in the United States and I no longer have any substantial ties to Guatemala.
6. Ultimately, on September 9, 2010, I was deported as a direct result of this conviction. I am now living in Guatemala alone, without my family and closest friends.
Following oral argument on April 15, 2011, the PCR court denied defendant's petition. In a written decision and a supplemental letter submitted pursuant to Rule 2:5-1(b), the court found that defendant's PCR application was time-barred by Rule 3:22-12(a)(1). Nevertheless, the court considered defendant's petition and concluded it was without merit because defendant "understood that deportation could result from his guilty plea."
On appeal from the order denying his petition, defendant presents the following arguments:
POINT I
THE FAILURE OF TRIAL COUNSEL TO ADVISE DEFENDANT THAT AS A RESULT OF HIS PLEA AGREEMENT, HE WOULD BE DEPORTED DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
POINT II
THE FAILURE OF TRIAL COUNSEL AND THE TRIAL COURT TO EXPLAIN THE IMMIGRATION CONSEQUENCES OF DEFENDANT'S GUILTY PLEA CAUSED DEFENDANT TO LACK KNOWLEDGE AND UNDERSTANDING OF THE PLEA AGREEMENT, RENDERING HIS PLEA DEFECTIVE, BECAUSE HE NEVER KNOWINGLY WAIVED HIS RIGHT TO A JURY TRIAL.
POINT III
THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.
We have considered these arguments in light of the record and the applicable law, and we have concluded they are clearly without merit. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by the PCR court with only the following comments.
The standard to establish an ineffective-assistance-of-counsel claim is well settled and need not be repeated here. In the context of a guilty plea, a defendant must show that counsel's performance was objectively deficient and also "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); accord State v. DiFrisco, 137 N.J. 434, 457 (1994). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
In this case, the PCR court correctly ruled that defendant's petition was time-barred because it was not filed within the five-year period allowed by Rule 3:22-12, and defendant failed to show the delay was attributable to either excusable neglect or exceptional circumstances. State v. Goodwin, 173 N.J. 583, 594-95 (2002). The court also correctly concluded that defendant did not present prima facie proof that his attorney was ineffective for failing to advise him that he would be deported. See State v. Brewster, 429 N.J. Super. 387, 397 (App. Div. 2013) (stating "[a]ccurate advice was provided to defendant [at the time of the plea] by the court's warning through its plea procedure that defendant 'may' be deported as a result of his conviction"). Additionally, defendant's arguments were procedurally barred because they were either adjudicated in his prior appeal, Rule 3:22-5, or they could have been raised in prior proceedings, Rule 3:22-4.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION