Opinion
DOCKET NO. A-5245-13T3
06-21-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARIA RINCON, a/k/a PATRICIA PEREZ, a/k/a MARIA PATRICIA RINCON AGUILAR, a/k/a PATRICIA CASTENERA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Vernoia.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, Union County, Indictment No. 86-06-0677. Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Maria Rincon appeals from a November 1, 2013 Law Division order denying her application to withdraw her guilty plea and for post-conviction relief (PCR) after an evidentiary hearing. We affirm.
I.
We discern the following facts and procedural history from the record. In 1986, defendant was charged in an indictment with possession of a controlled dangerous substance (CDS), N.J.S.A. 24:21-20(a)(2) (count one); possession of CDS with intent to distribute, N.J.S.A. 24:21-19(a)(1) and N.J.S.A. 24:21-19(b)(2) (count two); conspiracy to distribute and/or possess CDS with intent to distribute, N.J.S.A. 24:21-24, N.J.S.A. 24:21-19(a)(1) and N.J.S.A. 24:21-19(b)(2) (count three); and possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a) (count four). If convicted of the charges in the indictment, defendant's sentencing exposure was up to life in prison.
On October 14, 1986, defendant pled guilty to the charges in counts two and three pursuant to a plea agreement with the State. The State agreed to recommend the dismissal of counts one and four. Defendant entered into a cooperation agreement with the State and the State agreed to apprise the court of defendant's cooperation at the time of sentencing.
Due to the age of the case, a transcript of the plea proceeding was not available.
On January 6, 1987, the United States Immigration and Naturalization Service (INS) issued an order to show cause and notice of hearing in deportation proceedings against defendant. It was alleged that defendant was subject to deportation because she entered the United States on February 1, 1985 without inspection by an INS officer.
In March 1987, defendant, her plea counsel, and a detective from the Union County Prosecutor's Office went to an INS office. Counsel and the detective advised the INS of defendant's level of cooperation under the cooperation agreement. At a point which is not clear from the record, defendant's plea counsel recommended that defendant hire an immigration attorney who informed defendant that the deportation proceedings were "no problem because [defendant] was married to a citizen."
Defendant was sentenced on January 12, 1990. The Union County Prosecutor's Office provided the court with a letter describing defendant's cooperation during the over-three-year period following the entry of her plea. Defendant was sentenced to a five-year probationary term, directed to pay fines and penalties and perform community service, and counts one and four were dismissed. During the sentencing proceeding, defendant's counsel stated that three years before she went to the INS office with defendant, the INS was "aware of [defendant's] status in this Country," immigration proceedings were pending, and counsel believed they would "be favorably resolved."
The only immigration proceedings pending at the time of defendant's sentencing in 1990 were those that were initiated in 1987 based upon the charge that defendant entered the United States without inspection by an INS officer. It appears those charges were resolved favorably to defendant. The record reflects that she did not suffer any adverse immigration consequences as a result of those proceedings.
Defendant did not have any contact with the INS following her sentencing in 1990, until she attempted to adjust her immigration status and obtain a green card in 2001. At that time, the INS conducted a fingerprint search on defendant which revealed defendant's criminal conviction. Defendant contacted a detective in the Union County Prosecutor's Office and, in a letter dated April 10, 2001, the Union County Prosecutor advised defendant's immigration attorney that defendant had cooperated with the State and that "[a]s part of the cooperation agreement the State agreed to notify the [INS] of any cooperation provided by" defendant.
There have been no deportation proceedings initiated against defendant as a result of the INS's 2001 discovery that defendant had a criminal conviction. Since 2001, defendant has not received any information from the federal government regarding her immigration status.
In March 2010, defendant filed a motion to withdraw her guilty plea and a PCR petition. Defendant claimed that she was entitled to withdraw her guilty plea and to PCR because she was innocent of the charges and her plea counsel was ineffective by misadvising her about the immigration consequences of her plea. The court heard argument and ordered an evidentiary hearing, which was delayed because the matter was stayed by order of our Supreme Court pending its resolution of the claims in State v. Gaitan, 209 N.J. 339 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).
At the evidentiary hearing held on November 1, 2013, the court heard testimony from defendant, the Union County Assistant Prosecutor who represented the State at defendant's plea proceeding, and the detective who handled the investigation resulting in defendant's criminal charges. There was testimony that defendant's plea counsel was deceased.
Defendant testified that the State promised to help her with her immigration status and that she would not be deported if she cooperated. She stated that plea counsel assured her she would not have any immigration problems if she cooperated. She also asserted that the State promised to recommend that the court only impose a sentence of time served.
Defendant testified that she was innocent of the charges, her boyfriend was involved in selling drugs, but she was unaware of what he was doing. She said that she did not know that the plastic bag in her possession at the time of her arrest contained CDS because her boyfriend told her it contained shoes.
Defendant's boyfriend was also arrested and charged, but died prior to the return of the indictment.
The assistant prosecutor and detective testified that defendant was never promised that she would not be deported if she cooperated with the State because the prosecutor's office has no authority over the disposition of deportation cases. The assistant prosecutor explained that cooperating defendants were advised that the court was not required to accept the prosecutor's recommendations and could impose any sentence within the limits provided by law.
The detective described the circumstances leading to defendant's arrest. Defendant and her boyfriend were observed exiting a residence and approached the detective, who was attempting to make an undercover CDS purchase. When the detective asked to see the CDS, defendant's boyfriend told defendant to show the detective the CDS. Defendant at first refused, but eventually showed the detective a kilogram of cocaine.
After hearing the testimony, the court first determined that defendant was not a "credible or believable witness" and that her testimony was "sadly lacking" because she denied knowing that she possessed CDS but was sufficiently knowledgeable concerning a drug distribution operation to cooperate with the State and provide useful information in drug related investigations. The court found that the assistant prosecutor and detective were credible witnesses.
The trial court found that defendant failed to sustain her burden under State v. Slater, 198 N.J. 145 (2009), to permit a withdrawal of her guilty plea, failed to demonstrate that her plea counsel's performance was deficient, and did not establish that if she had known of the potential deportation consequences of her plea she would have rejected the plea offer and proceeded to trial. The court entered an order denying defendant's motion and PCR petition. This appeal followed.
On appeal, defendant argues:
POINT I:
THE POST-CONVICTION RELIEF COURT ERRED IN DENYING DEFENDANT'S PETITION ON THE ARGUMENT THAT HER ATTORNEY WAS INEFFECTIVE IN FAILING TO ADVISE HER OF THE IMMIGRATION CONSEQUENCES OF HER GUILTY PLEA.
A. DEFENDANT MADE A PRIMA FACIE SHOWING THAT TRIAL COUNSEL WAS INEFFECTIVE IN ADVISING HER THAT SHE WOULD NOT BE
DEPORTED AS A RESULT OF HER COOPERATION WITH LAW ENFORCEMENT.
II.
Defendant's singular argument on appeal is that the court erred in denying her PCR petition by failing to find that her plea counsel was ineffective. Defendant does not argue that the court erred in denying her motion to withdraw her guilty plea and we therefore do not address the court's rejection of the motion.
The November 1, 2013 order from which defendant appeals reflects that the court denied defendant's PCR petition. The court's oral decision, however, includes a denial of defendant's motion to withdraw her guilty plea. --------
Our review of a PCR claim after a court has held an evidentiary hearing "is necessarily deferential to [the] court's factual findings based on its review of live witness testimony." State v. Nash, 212 N.J. 518, 540 (2013); see also State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014) ("If a court has conducted an evidentiary hearing on a petition for PCR, we necessarily defer to the trial court's factual findings."). We review any legal conclusions of the trial court de novo. Nash, supra, 212 N.J. at 540-41; State v. Harris, 181 N.J. 391, 419 (2004) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The de novo standard of review also applies to mixed questions of fact and law. Harris, supra, 181 N.J. at 420.
The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee that a defendant in a criminal proceeding has the right to the assistance of counsel in his or her defense. The right to counsel includes "the right to the effective assistance of counsel." Nash, supra, 212 N.J. at 541 (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984)).
In Strickland, the Court established a two-part test, later adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), to determine whether a defendant has been deprived of the effective assistance of counsel. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the first prong of the Strickland standard, a petitioner must show that counsel's performance was deficient. It must be demonstrated that counsel's handling of the matter "fell below an objective standard of reasonableness" and that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
Under the second prong of the Strickland standard, a defendant "must show that the deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. There must be a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
"With respect to both prongs of the Strickland test, a defendant asserting ineffective assistance of counsel on PCR bears the burden of proving his or her right to relief by a preponderance of the evidence." Gaitan, supra, 209 N.J. at 350 (citing State v. Echols, 199 N.J. 344, 357 (2009); State v. Goodwin, 173 N.J. 583, 593 (2002)). A failure to satisfy either prong of the Strickland standard requires the denial of a petition for PCR. Strickland, supra, 466 U.S. at 700, 104 S. Ct. at 2071, 80 L. Ed. 2d at 702; Nash, supra, 212 N.J. at 542; Fritz, supra, 105 N.J. at 52.
"Although a demonstration of prejudice constitutes the second part of the Strickland analysis, courts are permitted leeway to choose to examine first whether a defendant has been prejudiced, and if not, to dismiss the claim without determining whether counsel's performance was constitutionally deficient." Gaitan, supra, 209 N.J. at 350 (citations omitted).
Defendant did not sustain her burden of establishing the second prong of the Strickland standard because she failed to present "sufficient evidence to show 'a reasonable probability that, but for counsel's errors, [s]he would not have pleaded guilty and would have insisted on going to trial.'" O'Donnell, supra, 435 N.J. Super. at 376 (alteration in original) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)). Defendant was required to demonstrate that "had [s]he been properly advised, it would have been rational for [her] to decline the plea offer and insist on going to trial and, in fact, that [s]he probably would have done so." State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011) (citing Padilla v. Kentucky, 559 U.S. 356, 372, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010)).
The evidence at the PCR hearing established that at the time defendant entered her plea she faced a potential life sentence and the State had substantial evidence against her. The testimony at trial would have shown that she presented an undercover detective with a package containing a kilogram of cocaine. Defendant testified that she was eight months pregnant at the time she pled guilty and accepted the State's plea offer to avoid a lengthy period of incarceration, to obtain a "time served" sentence, and so she could be released from custody to deliver her child. Although she testified that she also accepted the plea offer because she was told by her attorney and representatives from the prosecutor's office that she would not be deported, the court found her testimony to be not credible.
Even assuming she was misinformed by her counsel regarding the potential immigration consequences of her plea, defendant failed to present credible evidence demonstrating that, had she been properly advised, there is a reasonable probability that she would have rejected the plea offer and proceeded to trial. O'Donnell, supra, 435 N.J. Super. at 376. Moreover, defendant did not present evidence establishing that given her sentencing exposure, the strength of the State's case, her desire to avoid incarceration, and her interest in delivering her child while not in custody, it would have been rational to reject the plea offer and that she probably would have done so. Maldon, supra, 422 N.J. Super. at 486.
Because defendant failed to satisfy her burden of establishing prejudice under the second prong of the Strickland standard, we are satisfied that the court correctly denied defendant's PCR petition and do not need to address defendant's claim that her attorney misinformed her about the immigration consequences of her plea. See Nash, supra, 212 N.J. at 543-44 (finding that defendant's failure to establish one prong of the Strickland standard renders it unnecessary to consider the other prong).
Although not addressed by the PCR court, we are also convinced that defendant's petition is time barred by Rule 3:22-12(a)(1). A PCR petition must be filed within five years of the entry of the judgment of conviction unless the defendant demonstrates "excusable neglect" for missing the deadline and that "enforcement of the time bar would result in a fundamental injustice." R. 3:22-12(a)(1). A petition for PCR may also be filed within one year of "the courts recogniz[ing] a new constitutional right or defendant discover[ing] a previously unknown factual predicate justifying relief from the conviction." State v. Brewster, 429 N.J. Super. 387, 398 (App. Div. 2013) (citing R. 3:22-12(a)(2)).
Defendant filed her petition twenty years after she was convicted in 1990 and nine years after she was advised in 2001 that her conviction affected her immigration status. She did not, however, allege or establish any facts demonstrating excusable neglect and fundamental injustice under Rule 3:22-12(a)(1). See State v. Mitchell, 126 N.J. 565, 576-77 (1992) (finding that a PCR "petition itself must allege the facts relied on to support the claim"); State v. Cann, 342 N.J. Super. 93, 101-02 (App. Div.) ("A [PCR] petition is time-barred if it does not claim excusable neglect, or allege the facts relied on to support that claim."), certif. denied, 170 N.J. 208 (2001).
Defendant also did not allege or establish that she filed her petition within one year of the courts' recognition of a new constitutional right or her discovery of a factual predicate justifying the grant of PCR. As noted, defendant has been aware that her conviction affected her immigration status since 2001 but did not file her petition until 2010. Defendant's petition therefore was time-barred under Rule 3:22-12. Brewster, supra, 429 N.J. Super. at 399-401.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION