Opinion
DOCKET NO. A-0169-14T4
03-16-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BRYAN ESCOTO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the briefs). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Carroll and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 09-04-0490. Joseph E. Krakora, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the briefs). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Bryan Escoto appeals from the Law Division's June 30, 2014 order denying his post-sentence motion to withdraw his guilty plea. We affirm.
Defendant was seventeen years old when he and his adult co-defendant, Frank Gallipoli, were arrested on September 21, 2008, in connection with an armed robbery in Totowa. Defendant was initially charged in a juvenile complaint with conduct that, if committed by an adult, would constitute first-degree armed robbery, N.J.S.A. 2C:15-1a(2), and third-degree aggravated assault, N.J.S.A. 2C:12-1b(2).
The State later moved for an order waiving jurisdiction of the Family Part and transferring the case to the Law Division for criminal prosecution as an adult. Defendant was represented by counsel (juvenile counsel) at the waiver hearing. Defendant did not contest the State's motion, which the Family Part granted on January 9, 2009.
On April 21, 2009, a Passaic County grand jury returned Indictment No. 09-04-0490. Defendant and Gallipoli were charged jointly with two counts of first-degree robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6 (counts one and two); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) and N.J.S.A. 2C:2-6 (count three); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); and second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count five). Defendant alone was charged in count six with third-degree hindering apprehension, N.J.S.A. 2C:29-3b(4).
On November 2, 2009, defendant pled guilty to count one, first-degree robbery. In exchange, the State agreed to dismiss the remaining counts and recommend that defendant be sentenced in the second-degree range to no more than seven years imprisonment.
Because the court record of the November 2 hearing cannot be located, the transcript of the plea colloquy is unavailable. However, on the plea form, defendant acknowledged that he understood the pending charges, that he committed the offense to which he was pleading guilty, that he was satisfied with the advice of plea counsel, and that he had no questions concerning his plea.
In response to question seventeen of the plea form, defendant admitted he was not a United States citizen. Defendant also acknowledged immigration consequences by answering "Yes" to each of the following subsections of question seventeen:
b. 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?
c. Do you understand that if your plea of guilty is to a crime considered an "aggravated felony" under Federal law you will be subject to deportation/removal?
d. do you understand that you have the right to seek legal advice on your immigration status prior to entering a plea of guilty?
Defendant was sentenced on June 25, 2010, to a five-year term of imprisonment with an eighty-five percent parole ineligibility period pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, and a three-year parole disqualifier under the Graves Act, N.J.S.A. 2C:43-6(c). Defendant did not appeal.
By notice dated August 24, 2010, the United States Department of Homeland Security commenced deportation removal proceedings against defendant based on his robbery conviction. Nearly three years later, on July 24, 2013, defendant moved to withdraw his guilty plea. Defendant argued that juvenile counsel was ineffective for not advising him of the immigration consequences of the juvenile waiver and in not contesting the waiver motion. Defendant also contended that plea counsel was ineffective in failing to properly advise him of the immigration consequences of his guilty plea. Consequently, defendant asserted that the plea was not knowingly and voluntarily entered.
Judge Donald J. Volkert, Jr., who had not presided over any of the prior proceedings, conducted an evidentiary hearing on March 12, 2014. Juvenile counsel testified that there was virtually no likelihood that defendant would have prevailed had he contested the State's waiver motion. He cited the seriousness of the robbery charge, defendant's lengthy juvenile history, which included weapons offenses and assaults, and the fact that defendant was nearing eighteen years of age, as factors that led him to that conclusion. Instead, juvenile counsel concentrated his efforts on negotiating a resolution with the prosecutor for a bail amount that was within the bail guidelines, and allowed defendant to remain in the juvenile detention facility until bail could be posted. Counsel conceded that, at the bail hearing that led to defendant's release, he represented to the court that defendant was a United States citizen. At that time he was unaware that defendant was instead a legal permanent resident, and he was also unaware of any distinction between citizenship and legal resident status.
Defendant testified that he was born in the Dominican Republic and came to the United States when he was eight years old. He admitted that he did not correct juvenile counsel when counsel represented at the bail hearing that he was a United States citizen. Had he known the consequences of having his case tried in adult court, he "would have fought the waiver."
Defendant denied that plea counsel ever discussed his immigration status with him or the immigration consequences of his plea. However, defendant acknowledged that plea counsel asked him all the questions on the plea form, and that he supplied counsel with all the answers. Importantly, also, defendant did not claim that he was innocent of the charges. Rather, he stated "Well I'm guilty because I didn't want to go to trial."
After considering oral argument, Judge Volkert issued a nineteen-page written opinion denying the motion. The judge first addressed the juvenile waiver issue, and concluded:
N.J.S.A. 2A:4A-26(a) and [Rule] 5:22-2(c)(3)(A) provide that even if [juvenile counsel] did not voluntarily waive the matter to adult court on behalf of defendant, the waiver would have occurred anyway. The State would have had little difficulty in proving that defendant was over the age of sixteen and that there was probable cause that he committed the crime of first-degree robbery, and was in constructive possession of a weapon, a handgun, given testimony from witnesses, officers, and the charges against his co-defendant. Since the burden is lower in proving probable cause and this was a chart one offense, this case would most certainly have been waived to adult court.
Judge Volkert next applied the factors set forth in State v. Slater, 198 N.J. 145, 157-58 (2009), in evaluating the merits of defendant's motion to withdraw his guilty plea. The judge found that "defendant has never denied involvement or proclaimed his innocence." He noted that defendant sought to withdraw his guilty plea due to ineffective assistance of counsel. With respect to juvenile counsel, the judge reiterated that "[t]he facts and law clearly show that defendant would have been waived to adult court, regardless of whether [juvenile counsel] voluntarily made that decision on his behalf." Regarding plea counsel, the judge found that "the plea form, which was discussed with [] defendant, stated that he could face deportation if he was not a citizen. Since defendant was aware that he was not a United States citizen, he knew that a plea of guilty to this particular crime could result in his deportation."
Judge Volkert noted that "[d]efendant entered his guilty plea pursuant to an extremely favorable plea agreement" that enabled him "to obtain a vastly more favorable sentence." Finally, the judge recognized some degree of prejudice to the State should the plea be withdrawn. He determined that "[t]he significant passage of time has made it highly unlikely that the State could successfully prosecute the matter at this time."
Defendant raises the following issues on appeal:
POINT I
THE DEFENDANT'S CONVICTION SHOULD BE VACATED BECAUSE HIS ATTORNEYS WERE DEFICIENT BY NOT ADVISING HIM ABOUT THE IMPACT OF WAIVER FROM THE JUVENILE COURT TO THE CRIMINAL COURT AND THE IMMIGRATION CONSEQUENCES RESULTING FROM HIS GUILTY PLEA TO AN AGGRAVATED FELONY, IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS
POINT IIWe have considered these arguments in light of the record and applicable legal standards. We find the arguments to lack sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Volkert in his comprehensive written opinion. We add only the following comments.
BECAUSE THE DEFENDANT WAS NOT PROPERLY ADVISED ABOUT THE IMMIGRATION CONSEQUENCES RESULTING FROM A GUILTY PLEA TO FIRST DEGREE ROBBERY, HE SHOULD BE PERMITTED TO WITHDRAW HIS GUILTY PLEA
The decision to grant or deny a motion to retract a guilty plea is discretionary, and is governed by four factors: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Slater, 198 N.J. 145, 157-58 (2009). Because defendant filed his motion after sentencing, he must show that enforcement of the plea agreement would result in a "manifest injustice." R. 3:21-1. See also State v. Hayes, 205 N.J. 522, 535 (2011) (explaining that, in contrast, pre-sentencing motions are governed by the less-stringent "interest of justice" standard in Rule 3:9-3(e)). He has failed to make such a showing.
Defendant's motion was filed on July 24, 2013, almost five years after defendant's September 21, 2008 arrest. As found by Judge Volkert, the State established some prejudice should it now have to proceed to trial after such long delay. While ordinarily the third factor is not given great weight, Slater, supra, 198 N.J. at 161, the judge properly found that this prong favored denial of the motion. See State v. Means, 191 N.J. 610, 619 (2007) (negotiated pleas are entitled to a higher degree of finality).
More importantly, Judge Volkert correctly determined that defendant asserted no colorable claim of innocence. At the motion hearing, when pressed on cross-examination, defendant did not proclaim his innocence of the robbery charge. Instead, he begrudgingly admitted his guilt.
Finally, the second prong requires the court to consider "the nature and strength of defendant's reasons for withdrawal . . . ." Slater, supra, 198 N.J. at 157-58. Here, defendant's motion was predicated on ineffective assistance of counsel. It is well-settled that claims of ineffective assistance of counsel must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). The test requires a showing of deficient performance by counsel, and "that the deficient performance prejudiced the defense." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).
As noted, defendant argues that juvenile counsel was ineffective for failing to contest the juvenile waiver motion that ultimately led to the charges being transferred to adult court. However, under the statute then in effect, waiver was presumed where the charged juvenile was at least sixteen and the State established probable cause that the juvenile committed a first-degree crime, such as robbery. N.J.S.A. 2A:4A-26(a)(1)(2),(e); State v. Read, 397 N.J. Super. 598, 604 (App. Div.), certif. denied, 196 N.J. 85 (2008). See also R. 5:22-2(c)(3) ("On a finding of probable cause [for first-degree robbery] no additional showing is required for waiver to occur. Jurisdiction of the case shall be transferred immediately.").
In the present case, even if juvenile counsel's performance was deficient because of his failure to properly recognize defendant's immigration status and the immigration consequences of an adult conviction, defendant has nonetheless failed to satisfy the prejudice prong of the Strickland test. In short, defendant has failed to demonstrate a reasonable likelihood that counsel's efforts to contest the State's waiver motion would have met with success, as Judge Volkert correctly concluded.
Defendant additionally contends that plea counsel was ineffective for failing to advise him of the immigration consequences of his guilty plea. In considering ineffective assistance of counsel claims concerning a guilty plea, defendant must satisfy a modified Strickland standard:
When a guilty plea is part of the equation . . . a defendant must show that (i) counsel's assistance was not within the range of competence demanded in criminal cases and (ii) that there is a reasonable probability that but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.Moreover, to obtain relief under the second prong, "a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010) (citing Roe v. Flores-Ortega, 528 U.S. 470, 480, 486, 120 S. Ct. 1029, 1036, 1039, 145 L. Ed. 2d 985, 997, 1001 (2000)).
[State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).]
Here, defendant's contention that he was not advised of the immigration consequences of his plea is belied by the record. At the motion hearing, defendant acknowledged that counsel discussed each question on the plea form with him, and that defendant provided all of the answers. The plea form leaves no doubt that counsel was aware defendant was not a United States citizen, and that defendant was advised of the immigration consequences of his plea.
In any event, defendant is again unable to satisfy the second prong of the Strickland standard. He has failed to proffer any defenses that would likely lead to his acquittal of the numerous serious charges in the indictment. Nor has he demonstrated a reasonable probability that he would have received a lesser sentence. In short, defendant failed to establish "that a decision to reject the plea bargain would have been rational under the circumstances." Padilla, supra, 559 U.S. at 372, 130 S. Ct. at 1485, 176 L. Ed. 2d at 297.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
N.J.S.A. 2A:4A-26 was recently repealed effective March 1, 2016, and replaced by N.J.S.A. 2A:4A-26.1.