Opinion
DOCKET NO. A-0601-14T3
03-09-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CANDIDA RODRIGUEZ, Defendant-Appellant.
Howard W. Bailey, attorney for appellant. Frederic M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Rothstadt and Currier. On appeal from Superior Court of New Jersey, Law Division, Morris County, Accusation No. 11-04-0372. Howard W. Bailey, attorney for appellant. Frederic M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Candida Rodriguez appeals from the Law Division's August 20, 2014 order denying her petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.
Defendant pled guilty in April 2011 to Accusation No. 11-04-0372, charging her with third-degree conspiracy to possess a controlled dangerous substance (CDS), N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-10(a)(1). Judge Stuart A. Minkowitz sentenced defendant in accordance with a plea agreement to three years of probation and time served. Defendant did not file a direct appeal from her conviction and sentence.
Three years after her sentencing, defendant filed her PCR petition. In a supporting affidavit, defendant claimed that she was told by her plea counsel that she would not "be expose[d] to automatic deportation consequences as a result of [her] plea in [this matter]." She also stated that her plea counsel never "discuss[ed] with [her] what the impact on deportation relief would be of [her] pleading to this charge when [she] had a prior conviction." According to a certification from her immigration attorney, defendant pled guilty in 1997 to CDS charges in Maryland. Consequently, defendant's 2011 guilty plea made her ineligible for a waiver of her 1997 conviction and "render[ed] her deportable."
The issue of defendant becoming deportable arose from her having been stopped in 2010 at John F. Kennedy International Airport in New York after she returned from a trip abroad. At the airport, immigration officials questioned defendant about her 1997 conviction and thereafter released her, deferring any determination on her status as a lawful resident. After the court sentenced defendant in this matter, immigration officials charged her with being subject to removal based only upon her 1997 conviction. According to defendant's immigration lawyer, if defendant was not convicted in 2011, she would be eligible to apply for a waiver of the 1997 conviction as being grounds for deportation.
We question the accuracy of counsel's assertion in light of the United States Supreme Court's explanation in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), which addressed the current state of "waivers." The Court stated:
Under contemporary law, if a noncitizen has committed a removable offense after the 1996 effective date of these amendments, his removal is practically inevitable but for the possible exercise of limited remnants of equitable discretion vested in the Attorney General to cancel removal for noncitizens convicted of particular classes of offenses. Subject to limited exceptions, this discretionary relief is not available for an offense related to trafficking in a controlled substance.
[Id. at 363-64, 130 S. Ct. at 1480, 176 L. Ed. 2d at 292 (2010) (footnote and citation omitted).]
Judge Minkowitz considered defendant's petition and counsels' oral arguments on August 20, 2014. That same day, he placed on the record his comprehensive statement of reasons for denying defendant's petition. The judge began by reviewing the transcript of defendant's plea hearing. He noted that the court inquired as to defendant's legal status and she confirmed she was a "resident" having been born in the Dominican Republic. He then read from the transcript defendant's confirmation that she understood she could be deported as a consequence of pleading guilty and that, if the charge to which she pled guilty was considered an aggravated felony or a crime of moral turpitude, she would be deported. Judge Minkowitz further recited the plea court's questioning of defendant as to whether, assuming her deportation would result from the guilty plea, she still desired to go forward with the plea, to which defendant responded "yes."
Our Supreme Court has explained that
noncitizens who are subject to removal[] includ[e] those convicted of crimes of moral turpitude, any controlled substance offense other than simple possession of small amounts of marijuana, and any "aggravated felony."
The list of offenses qualifying as aggravated felonies . . . is extensive, and includes, among others, such [a] crime[] as illicit trafficking in a controlled substance . . . .
[State v. Gaitan, 209 N.J. 339, 359 (2012) (citations omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).]
As indicated in the transcript, defendant confirmed her understanding that "if [she was] not deported but at some point [she] le[ft] the United State[s] and [she] attempt[ed] to come back into the United State[s], as a result of this plea [she] may not be permitted back into the United States." The plea court told defendant that determinations as to her immigration status were properly left to the federal courts, and that she had the right to speak with an immigration attorney before pleading guilty. Defendant responded that she understood, but chose not to speak with an attorney before going forward.
Judge Minkowitz also confirmed from the transcript that defendant understood all questions included on the plea form and was satisfied with her plea counsel. The judge reviewed defendant's written responses to those questions concerning immigration consequences, all of which were consistent with her answers at the hearing.
The judge then recited the law applicable to defendant's petition under the Strickland-Fritz test, and the standards relating to claims of ineffective assistance of counsel based upon the failure to advise of immigration consequences, as articulated in State v. Nuñez-Valdéz, 200 N.J. 129, 143 (2009) (holding a defendant can demonstrate ineffective assistance of counsel by proving "he would not have pled guilty but for the inaccurate information from counsel concerning the deportation consequences of his plea," as counsel is obligated to avoid providing a defendant with "false or misleading information" about those consequences), Gaitan, supra, 209 N.J. at 351 ("[W]hen counsel provides false or affirmatively misleading advice about the deportation consequences of a guilty plea, and the defendant demonstrates that he would not have pled guilty if he had been provided with accurate information, an ineffective assistance of counsel claim has been established."), and Padilla, supra, 559 U.S. at 368, 130 S. Ct. at 1483, 176 L. Ed. 2d at 295.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987), held that, to prevail on a claim of ineffective assistance of counsel, defendant must establish both that: (1) counsel's performance was deficient, falling below the standard of a "reasonably competent attorney," and that (2) the deficiency prejudiced defendant's right to a fair trial such that 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 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698; see also Fritz, supra, 105 N.J. at 52-53.
In Padilla, the Court held that attorneys are affirmatively obligated to inform their clients about the deportation risks of entering a guilty plea. Id. at 373-74, 130 S. Ct. at 1486, 176 L. Ed. 2d at 298-299. The Court made clear "that an attorney's failure to advise a noncitizen client that a guilty plea will lead to mandatory deportation deprives the client of the effective assistance of counsel guaranteed by the Sixth Amendment." State v. Barros, 425 N.J. Super. 329, 331 (App. Div. 2012) (citing Padilla, supra, 559 U.S. at 368-69, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296).
The judge reviewed the assertions made by defendant and her attorneys in the certifications filed in support of her petition. He noted there was no evidence showing either that defendant's plea counsel had any knowledge of her 1997 conviction or that, other than the opinion of her immigration counsel as to the impact of the 2011 guilty plea, defendant's immigration problems were related to the 2011 guilty plea in any manner. According to the judge, even if related, the record of defendant's plea hearing "did not support her claims of ineffective assistance of counsel," as she confirmed her understanding that she could be deported but sought to proceed with her plea, and there was no evidence that her plea counsel ever "misinformed [her] about the immigration consequences of her plea."
According to the transcript of her sentencing, defendant first disclosed her previous out-of-state conviction to the court personnel who prepared her pre-sentence report.
Attached to the affidavit of defendant's immigration attorney was a copy of the federal government's notice to appear for removal proceedings. The document only discussed the 1997 charges and made no mention of the 2011 conviction. --------
Based on his findings, Judge Minkowitz concluded that defendant failed to establish a prima facie claim of ineffective assistance of counsel. Accordingly, he denied the petition and entered a conforming order on the same day.
On appeal, defendant argues:
THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S PETITION FOR [PCR] WITHOUT HOLDING AN EVIDENTIARY HEARING.
We conclude from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel under the Strickland-Fritz test. The record demonstrates that defendant was told that she could be deported for her 2011 plea, which satisfied counsel's obligation. Importantly, defendant confirmed to the court that she fully understood she could be subjected to removal as a result of her 2011 plea and, nonetheless, wished to plead guilty. Further, her pending immigration issues arose out of her 1997 conviction and not the 2011 matter.
Accordingly, for the reasons stated in his thorough oral decision, Judge Minkowitz correctly concluded that an evidentiary hearing was not warranted, see State v. Preciose, 129 N.J. 452, 462-63 (1992).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION