Opinion
DOCKET NO. A-2789-12T1
07-16-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. FERNANDO PUJALT, a/k/a FERNANDO PUJALT LEON, a/k/a CESAR CASTRO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Lee March Grayson, 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NOT FOR PUBLICATION WITHOUT THE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 Ostrer and Carroll.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 99-01-0203.
Joseph E. Krakora, Public Defender, attorney for appellant (Lee March Grayson, 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). PER CURIAM
Defendant Fernando Pujalt appeals from the trial court's June 29, 2012, order denying, without an evidentiary hearing, his petition for post-conviction relief from his May 2000 conviction, after a guilty plea, of violating a domestic violence restraining order, a disorderly persons offense. N.J.S.A. 2C:29-9(b). Defendant asserts his trial counsel failed to advise him of the immigration consequences of his conviction. Having reviewed defendant's arguments in light of the record and applicable legal principles, we affirm.
I.
We discern the following facts from the record, giving defendant's allegations favorable inferences. See State v. Preciose, 129 N.J. 451, 462-63 (1992) (stating that "[a]s in a summary judgment motion, courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim" of ineffective assistance of counsel).
Defendant was forty-four years old and a citizen of Peru when he legally entered the United States in January 1997 to obtain emergency medical treatment in Texas for his prematurely born twin daughters. He sought permission to remain in the United States, which he claimed was still pending. It is unclear whether his presence eventually became unauthorized.
He ultimately moved to New Jersey. Apparently, the children and their mother, E.M., did as well. Defendant worked for nine years as a banquet manager. He had attended a university in Peru for three years. He appeared at his plea and sentencing hearings represented by counsel but without the assistance of an interpreter, although he now maintains he could not understand "colloquial terms of the law."
He admitted that at some point, apparently in 1998, he was "in the middle of a disorderly and turmoil [sic] relation with [E.M.] whom I dearly love, while trying to balance our children's life on their best interest." E.M. obtained a domestic violence restraining order against defendant. In a January 1999 Bergen County indictment, defendant was charged with two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (Counts 1 and 2); and one count of fourth-degree violating a domestic violence restraining order through the commission of another crime or disorderly persons offense, N.J.S.A. 2C:29-9(b) (Count 3). E.M. was the alleged victim in all three counts. Defendant allegedly threatened to kill E.M. on two separate dates, August 27 and September 15, 1998.
The restraining order was apparently a temporary one, although the order and a transcript of the proceedings before the Family Part are not before us. According to trial counsel, on the day of defendant's plea on April 6, 2000, the Family Part judge denied a restraining order regarding an August 25 or 27 event after a hearing on September 17, 1998, and found the victim to be incredible. We surmise the reference was to the August 27 incident charged in the indictment. However, in a pro se letter in support of his PCR petition, defendant asserted that in June 2000, the "temporal [sic] protection for [sic] abuse; that produced the above-captioned Contempt I was charged with; was withdrawn when the Court discovered 'doctored picture' brought like [sic] evidence by [E.M.]." (Emphasis omitted). Defendant asserted that the Family Part judge found the victim lacked credibility. Our understanding of what the Family Part decided is hampered by the absence of the transcript or any related orders.
On the day the criminal case was to be tried, April 6, 2000, the State extended a plea offer to defendant. At the time, defendant had pre-trial motions pending to dismiss the indictment and, apparently, to utilize aspects of the Family Part record. The State offered to dismiss the terroristic threat counts and to amend the fourth-degree contempt to disorderly persons contempt. The State agreed to recommend a probationary sentence.
After a break, the assistant prosecutor stated her understanding that the defendant would accept the offer. In his allocution, defendant confirmed that on September 15, 1998, he was "aware that there was a . . . restraining order prohibiting [him] from contacting [E.M.]," and he "did . . . in fact contact [E.M.] by speaking to her over the phone."
Defendant confirmed that he read and understood his plea form, his attorney explained it to him, and he had no further questions. Defendant responded "yes" to question seventeen on the plea form, which states, "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 plea form itself is dated April 5, 2000, the day before the prosecutor announced the plea offer on the record and defense counsel responded it was the first she heard of it.
Near the end of the plea hearing, stating "there is one other thing I should place on the record," trial counsel expressly addressed the potential immigration consequences of his plea:
Q Mr. Pujalt, we did discuss the immigration -- your immigration status; correct?
A (Inaudible).
Q And as a result of that I told you that I did not think but, couldn't guarantee that this would be a situation they brought to the attention to immigration authorities; correct?
A Yes --.
Q And you understood that; correct?
A --.
[DEFENSE COUNSEL]: Thank you, Judge.
THE COURT: Do you understand that? I mean this is not an indictable offense you're pleading to, it's a disorderly. But, immigration could make the decision to deal with this accordingly. You understand that? There are [no] guarantees. So, you're entering the plea understanding that?
THE WITNESS: Yes.
The following month, the court sentenced defendant, in accord with the plea agreement, to a probationary term conditioned on no contact with the victim (although the TRO was apparently dismissed), and continued participation in counseling. There was no further discussion of immigration consequences. The court found that defendant had no history of prior convictions or adjudications of delinquency. The court acknowledged there were other matters, pertaining to the domestic relationship, but they had been dismissed. Defendant did not file a direct appeal.
In late December 2010, defendant was incarcerated in Pennsylvania and subjected to removal proceedings by federal immigration officials. In late January 2011, defendant prepared a pro se "motion to vacate conviction," seeking to vacate his plea and to obtain a new trial on the ground that he received ineffective assistance of counsel. His papers included a pro se brief, and an affidavit. Initially, he served his papers only on the prosecutor. In June 2011, he wrote to the trial judge who imposed sentence, providing additional argument, and apparently enclosing his papers from January.
The clerk's office then advised defendant that he was required to file a formal application with the court. The clerk provided defendant with pro se forms for the filing of a PCR petition. On July 25, 2011, defendant filed his pro se certified petition, accompanied by another supporting letter dated July 18, 2011. After counsel was appointed, defendant filed yet another certification, along with an amended verified petition for PCR.
PCR counsel's papers were undated but it is apparent they were filed last.
In several of his pro se submissions, defendant alleged that his trial counsel failed to inform him of the immigration consequences of his plea. For example, in January 2011, he certified, "I was never informed by prior counsel that my admission to the charges in my case would have immigration consequences especially deportation." In July 2011, he certified, "I was not notified of the immigration consequences by my Counselor that this could lead to deportation proceedings in Immigration Court." (Emphasis omitted). Only in the undated supplemental certification prepared by counsel, defendant alleged his trial counsel and the court affirmatively misinformed him: "I was told by my trial counsel that because I was pleading guilty to a disorderly persons offense, I would not be deported. This was again told to me by the Court during my conversation with the Judge." Defendant asserted that had he been informed of the immigration consequences of his plea, he would have insisted upon going to trial.
Defendant also asserted that he did not voluntarily and intelligently enter his plea. He asserted his innocence, claiming the alleged contempt was "not true, [and] totally false," and "the allegations were false the way things happen[ed]." (Emphasis omitted). He referred to the Family Part's dismissal of the underlying restraining order, but did not directly address whether he violated the restraining order by contacting E.M. on September 15, 1998 while the order was in place. He contended that "time after time" he maintained his innocence, but ultimately relented. He asserted his trial attorney "coerced [him] to take the plea" by stating he "could get a minimum / maximum sentence of 2 / 3 years in jail." He stated that he entered the plea because he was intimidated and in fear.
The trial court denied defendant's PCR petition on two grounds. First, the court found that the petition was untimely, as defendant filed it well beyond the five-year deadline under Rule 3:22-12. The court found no excusable neglect, and rejected defendant's argument that he was unaware of the immigration consequences of his plea until his incarceration by immigration officials. The court relied on defendant's statements at the plea hearing, and the plea form, in which he acknowledged the potential of deportation.
Second, the court concluded that defendant had presented insufficient evidence to establish a prima facie case of ineffective assistance of counsel. The court applied the well-settled two-prong test for determining such claims. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (defendant must establish (1) that his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment and (2) that defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard). The court found that both defense counsel and the trial court advised defendant that he "may be subject to deportation proceedings as a result of his guilty plea." See State v. Gaitan, 209 N.J. 339 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).The court noted that Padilla v. Kentucky, 559 U.S. ____, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), was not retroactive to defendant's plea hearing in 2000. See also Chaidez v. Unite States, ___ U.S. ___, ___, 133 S. Ct. 1103, 1113, 185 L. Ed. 2d 149, 162 (2013) (stating Padilla is prospective). Padilla, supra, 559 U.S. at ___, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296, held that an attorney must do more than avoid misinforming a client about potential immigration consequences of a plea; the attorney must advise a client when removal is mandatory.
On appeal, defendant presents the following points for our consideration:
POINT I
THE PCR COURT'S RULING THAT THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WAS PROCEDURALLY BARRED BY THE FIVE-YEAR TIME BAR OF R. 3:22-12(a) WAS CONTRARY TO THE CRITERIA CONTROLLING THE EXCUSABLE NEGLECT EXCEPTION. (PARTIALLY RAISED BELOW).
POINT II
SINCE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL UNDER THE STANDARDS ARTICULATED IN STRICKLAND V. WASHINGTON, STATE V. FRITZ AND STATE V. PRECIOSE, UNDER R. 3:22-12 CRITERIA THE PCR COURT MISAPPLIED ITS DISCRETION BY DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING.
POINT III
THE PCR COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
POINT IV
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.
II.
We defer to a trial court's credibility findings, and uphold the court's fact-findings after an evidentiary hearing, if supported by sufficient credible evidence in the record. State v. Harris, 181 N.J. 391, 420 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). "However, where the court does not hold an evidentiary hearing, we may exercise de novo review over the factual inferences the trial court has drawn from the documentary record." State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014) (citing Harris, supra, 181 N.J. at 420-21). We also review issues of law de novo. Harris, supra, 181 N.J. at 419.
Defendant failed to file his petition within five years of entry of the judgment of conviction. Inasmuch as defendant was convicted of a disorderly persons offense, and not a crime, Rule 3:22 does not apply, including Rule 3:22-12, governing the timely filing of a petition for PCR. See R. 3:22-1 (stating that a person convicted of a crime may file a petition for post-conviction relief under the rule); R. 3:22-3 (stating Rule 3:22 is the exclusive means of challenging a judgment of a conviction of a crime). Rather, the limitations period is found in Rule 7:10-2, which governs PCR from a conviction for an offense.
Rule 7:10-2(b)(2) requires the filing of a petition no more than "five years after entry of the judgment of conviction or imposition of the sentence sought to be attacked, unless it alleges facts showing that the delay in filing was due to defendant's excusable neglect." By contrast, a defendant filing a petition for PCR from a criminal conviction after more than five years must show both excusable neglect, plus "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." R. 3:22-12(a)(1). Thus, in one respect, the limitations period in Rule 7:10-2(b)(2) is less onerous than the one in Rule 3:22-12(a).
We recognize that Rule 7:10 presumes filing with the municipal court. However, we conclude that defendant properly filed his petition with the Law Division, as he sought relief from a disorderly persons offense conviction entered by that court.
Defendant argues that his untimely filing should be excused because he did not discover the alleged deficiencies in his counsel's performance until federal immigration officials acted in 2010. However, we have recently held that allegedly deficient advice does not equate with excusable neglect.
Both defendant and the State presume, we conclude mistakenly that Rule 3:22-12 governs.
Defendant cannot assert excusable neglect simply because he received inaccurate deportation advice from his defense counsel. If excusable neglect for late filing of a petition is equated with incorrect or incomplete advice, long-convicted defendants might routinely claim they did not learn about the deficiencies in counsel's advice on a variety of topics until after the five year limitation period had run.
[State v. Brewster, 429 N.J. Super. 387, 400 (App. Div. 2013) (citation omitted) (applying R. 3:22-12).]
On the other hand, Rule 3:22-12(a)(2)(B) provides that a second or subsequent petition may be filed, notwithstanding the five-year bar, within one year of the "factual predicate for the relief sought." We held that the "factual predicate" exception logically should apply to first petitions, as well. Brewster, supra, 429 N.J. Super. at 399 n.4. Arguably, the commencement of removal proceedings may constitute such a "factual predicate," particularly if there was no prior indication that such proceedings were imminent. Cf. id. at 399 (concluding that commencement of removal proceedings did not constitute a "factual predicate" because the defendant was advised by an attorney that his conviction might be a problem three years prior to filing his petition).
On the other hand, Rule 7:10 does not expressly include the "factual predicate" exception to its five-year limitations period. One might argue that late discovery of a "factual predicate" may, at least under certain circumstances, satisfy excusable neglect; and, therefore, the "factual predicate" exception should be imported into the limitations period governing petitions for PCR from offense convictions. However, in the final analysis, we need not resolve the issue of the timeliness of defendant's petition, as we agree, substantially for the reasons set forth in the trial court's opinion, that defendant has failed to establish a prima facie case of ineffective assistance of counsel.
It is well-settled that an attorney renders ineffective assistance when he affirmatively misinforms a client about the immigration consequences of a plea. State v. Nuñez-Valdéz, 200 N.J. 129, 140-42 (2009). However, we reject defendant's newly-minted claim in his last-filed supplemental certification that his attorney affirmatively misinformed him that there were to be no immigration consequences. The claim is belied by defendant's multiple prior submissions. It is also belied by his plea form, in which he expressly acknowledged the risk of deportation; and the statements on the record by his attorney and the court that deportation was a possibility and nothing was certain.
Although defense counsel indicated that she "did not think" removal was likely, she added that she could not "guarantee" it. Particularly given the prevailing legal standards at the time, and the nature of immigration enforcement at the time, the record does not establish a prima facie case of ineffective assistance. See Brewster, supra, 429 N.J. Super. at 396-97. The trial judge added that immigration officials could choose to act, notwithstanding that defendant was pleading to a disorderly persons offense. Any further comment regarding defendant's claim of ineffective assistance is not warranted in a written opinion. R. 2:11-3(e)(2).
Recognizing that defendant has repeatedly asserted a claim of innocence, we note that he did not file a motion to withdraw his plea, which may be filed after sentence to correct a manifest injustice. See R. 3:21-1; R. 7:6-2(b). The standard for determining a plea withdrawal motion is separate and distinct from the standard governing PCR. See O'Donnell, supra, 435 N.J. Super. at 369. We offer no opinion on the merits of such a motion.
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Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF APPELLATE DIVIDION