Opinion
DOCKET NO. A-3263-13T3
04-12-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARAT GARBON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven J. Sloan, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-02-0740. Joseph E. Krakora, Public Defender, attorney for appellant (Steven J. Sloan, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Marat Garbon appeals from the denial of his petition for post-conviction relief (PCR) without a hearing. Defendant claims he received ineffective assistance of counsel, he should have been provided an evidentiary hearing, he should be permitted to withdraw his guilty plea, and his petition is not time-barred. Finding none of these arguments meritorious, we affirm.
In November 2005, defendant was indicted by a grand jury sitting in Camden County and charged with four counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (counts one, two, three, and four), and four counts of fourth-degree lewdness, N.J.S.A. 2C:14-4(b) (counts five, six, seven, and eight).
On October 10, 2006, defendant pled guilty pursuant to a negotiated plea agreement to one count of third-degree endangering the welfare of a child to resolve the charges in the indictment. In exchange for his guilty plea, the State agreed to recommend a non-custodial sentence.
During his plea allocution, defendant admitted that on October 16, 2005, he exposed his penis to two children, who were then eleven and thirteen, in the lobby of an apartment building in Cherry Hill. He acknowledged that his conduct "could have the tendency to impair the morals of children [at] that young age."
Prior to his sentence, defendant was evaluated at the Adult Diagnostic and Treatment Center at Avenel where it was determined that he was not a repetitive and compulsive sex offender within the meaning of N.J.S.A. 2C:47-3.
On January 16, 2007, defendant was sentenced consistent with the plea agreement to a five-year term of probation and was required to register in accordance with Megan's Law, N.J.S.A. 2C:7-1 to -11. Defendant did not appeal his conviction or sentence.
Defendant came to the United States from Moldova in 1993 and is not a citizen. In April 2012, defendant was notified by the Immigration and Naturalization Service (INS) that he was subject to deportation as a result of his conviction. In November 2012, defendant was briefly detained by Immigration and Customs Enforcement (ICE) and again notified that he was subject to deportation based, in part, upon this conviction.
Defendant submitted a pro se petition for PCR on August 5, 2013, followed by a supplemental brief filed by appointed counsel on August 8, 2013. Defendant alleged ineffective assistance of his plea counsel for not advising him of the risk of deportation at the time he entered his guilty plea.
The petition was heard on December 13, 2013. The judge first found the petition was time-barred, as it was not filed within five years of the judgment of conviction. R. 3:22- 12(a)(1). The judge also denied the petition on substantive grounds, finding that plea counsel was not ineffective.
On appeal, defendant raises the following arguments:
I.
THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
II.
THE TRIAL COURT MISAPPLIED THE LAW IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, ON PROCEDURAL GROUNDS, PURSUANT TO RULE 3:22-12.
III.
THE TRIAL COURT SHOULD HAVE AFFORDED DEFENDANT AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL ADVICE ABOUT IMMIGRATION CONSEQUENCES.
IV.
THE TRIAL COURT SHOULD HAVE HELD AN EVIDENTIARY HEARING TO [PERMIT DEFENDANT TO] ARGUE THAT DEFENDANT PLED GUILTY TO ENDANGERING BASED UPON INCORRECT ADVICE THAT EXPOSURE TO A CHILD CONSTITUTED A PER SE OFFENSE OF ENDANGERING THE WELFARE OF CHILDREN.
V.
THE TRIAL COURT MISAPPLIED THE LAW IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE WOULD NOT HAVE ACCEPTED THE PLEA BARGAIN IF HE HAD BEEN GIVEN
CORRECT ADVICE ABOUT IMMIGRATION CONSEQUENCES, ESPECIALLY IN LIGHT OF VIABLE DEFENSE MOTIONS IN THE CASE TO SUPPRESS STATEMENTS TAKEN IN VIOLATION OF MIRANDA v. ARIZONA AND TO SUPPRESS EVIDENCE SEIZED IN VIOLATION OF THE FOURTH AMENDMENT.
VI.
THE TRIAL COURT MISAPPLIED THE LAW IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT DEFENDANT SHOULD BE PERMITTED TO WITHDRAW HIS PLEA BARGAIN TO CORRECT A MANIFEST INJUSTICE.
To establish a prima facie case of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of succeeding under the test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Under the two-pronged Strickland/Fritz test, the defendant must demonstrate his counsel's performance was deficient and there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
If a claim of ineffective assistance follows a guilty plea, as here, the defendant must prove counsel's constitutionally deficient representation, and also demonstrate "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).
Defendant argues that excusable neglect delayed the filing of his PCR petition because he was unaware of the immigration consequences of his guilty plea until receiving correspondence from INS.
Rule 3:22-12(a)(1) provides that the five-year time bar may be relaxed if defendant establishes that the delay "was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice."
Excusable neglect requires more than simply providing a plausible explanation for a failure to file a timely PCR petition. To determine whether a defendant has asserted a sufficient basis for relaxing the Rule's time restraints, courts consider "the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an 'injustice' sufficient to relax the time limits." State v. Afanador, 151 N.J. 41, 52 (1997) (quoting State v. Mitchell, 126 N.J. 565, 580 (1992)).
To succeed on a claim of fundamental injustice, a defendant must show that the error "played a role in the determination of guilt." State v. Nash, 212 N.J. 518, 547 (2013) (quoting Mitchell, supra, 126 N.J. at 587). "Absent compelling, extenuating circumstances, the burden of justifying a petition filed after the five-year period will increase with the extent of the delay." Mitchell, supra, 126 N.J. at 580.
Defendant's claim that he was unaware of potential immigration consequences of his guilty plea until he was contacted by ICE and INS is contradicted by record evidence. The plea form signed by defendant contained the question: "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?" A "yes" response is circled on the form. During defendant's allocution, the following exchange took place:
[THE COURT]: Okay, before you, sir, is the plea form together with the Megan's Law addendum. Did you have the opportunity to read and review each and every page?
[DEFENDANT]: Yes, I did.
[THE COURT]: Do you understand it, sir?
[DEFENDANT]: Yes, I do.
[THE COURT]: Do you have any questions?
[DEFENDANT]: No, I don't.
. . . .
[THE COURT]: Did you review it with your attorney?
[DEFENDANT]: Yes, I did.
. . . .
[THE COURT]: Do you understand, sir, that you don't have to plead guilty, that you have a right to a jury trial at which time the state has to prove your guilt beyond a reasonable doubt?
[DEFENDANT]: Yes, I do.
Defendant argues that the question regarding immigration consequences on the plea form was not adequately explained to him. However, defendant's plea counsel provided a certification indicating, "as was customary in practice among criminal defense attorneys, I may have circled the question pertaining to possible immigration consequences on the plea form 'Yes,' but would have only read the question in passing to [defendant]." Counsel further certified that he "would have advised him that it was very unlikely that he would have any problems with immigration, since this was a probationary sentence and he had no adult criminal record."
Defendant claims that, because the immigration consequences were understated, he was unaware of the very real possibility of deportation and that the notification letter he received from INS and his detention by ICE constitute a new factual predicate. We are not persuaded by this argument.
We note that defendant has not asserted a claim of innocence and, therefore, his "knowledge of the risk of deportation did not affect the truth-finding function of the court when it accepted his plea." State v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013). Thus, defendant has not shown that alleged inadequate immigration advice "played a role in the determination of guilt." Nash, supra, 212 N.J. at 547 (quoting Mitchell, supra, 126 N.J. at 587).
In addition, as in Brewster, defendant had "both the opportunity and the incentive to learn whether he might be deported before the time of his arrest by federal immigration authorities." 429 N.J. Super. at 401. Defendant was aware that he was not a United States citizen, and even if plea counsel had only gone over the deportation question on the plea form "in passing," he was placed on notice of the possibility of the immigration consequences of his plea.
There is no indication that plea counsel provided false or misleading information. See State v. Nuñez-Valdéz, 200 N.J. 129, 140-43 (2009) (holding that counsel is ineffective by providing false or misleading advice regarding the immigration consequences of a defendant's plea). Therefore, defendant has failed to meet his burden of showing that his failure to file his PCR petition within five years of his conviction was due to excusable neglect.
We also reject defendant's argument that he established a prima facie showing of ineffective assistance and was entitled to an evidentiary hearing. Our review of a PCR court's determination to proceed without an evidentiary hearing is guided by an abuse-of-discretion standard. R. 3:22-10; Brewster, supra, 429 N.J. Super. at 401. A defendant is:
entitled to an evidentiary hearing only upon [1] the establishment of a prima facie case in support of post-conviction relief, [2] a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and [3] a determination that an evidentiary hearing is necessary to resolve the claims for relief.
[R. 3:22-10(b).]
In making such determinations, courts view the facts in a light most favorable to the defendant. State v. Preciose, 129 N.J. 451, 462-63 (1992). A hearing is required only where a defendant has shown a reasonable likelihood of success on the merits, and the facts on which a defendant relies are not already of record. State v. Porter, 216 N.J. 343, 355 (2013).
We find no abuse of discretion by the PCR judge in denying defendant's petition without an evidentiary hearing because defendant has not presented a meritorious ineffective assistance of counsel claim. Plea counsel's observation that defendant's deportation was "unlikely" might have been optimistic, but it did not constitute incorrect or deficient legal advice. See Brewster, supra, 429 N.J. Super. at 397. In addition, even if defendant had demonstrated that his counsel's performance was deficient, he did not establish that, but for his counsel's alleged errors, he would have rejected the plea offer and proceeded to trial. Hill, supra, 474 U.S. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210.
We are satisfied that an evidentiary hearing would not have aided the court's analysis of whether defendant's PCR petition should have been granted, and perceive no abuse of discretion in denying an evidentiary hearing.
We find defendant's remaining arguments lack sufficient merit to warrant discussion in our opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION