Opinion
DOCKET NO. A-3080-11T3
09-26-2012
STATE OF NEW JERSEY, Plaintiff-Appellant, v. FERNANDO SORIANO, Defendant-Respondent.
Edward J. DeFazio, Hudson County Prosecutor, attorney for appellant (Vando Cardoso, Assistant Prosecutor, on the brief). Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Fuentes.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-10-1774.
Edward J. DeFazio, Hudson County Prosecutor, attorney for appellant (Vando Cardoso, Assistant Prosecutor, on the brief).
Respondent has not filed a brief. PER CURIAM
By leave granted, the State appeals from the order of the trial court granting defendant Fernando Soriano post conviction relief (PCR) and setting aside his 2003 conviction for third degree burglary, N.J.S.A. 2C:18-2(b), and fourth degree defiant trespass, N.J.S.A. 2C:18-3(c). Relying on State v. Nunez-Valdez, 200 N.J. 129 (2009), the trial court found that (1) defendant's attorney gave him incorrect legal advice concerning the immigration consequences of his conviction at the time he pleaded guilty to these offenses, and (2) defendant would not have pleaded guilty if he had been given the correct legal advice. Because the record does not support the court's findings, we reverse.
I
In October 2003, a Hudson County Grand Jury returned Indictment No. 03-10-1774 against defendant charging him with third degree burglary, N.J.S.A. 2C:18-2(b); third degree resisting arrest, N.J.S.A. 2C:29-2(a); and second degree attempted aggravated arson, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:17-1(a). On November 18, 2003, defendant pleaded guilty, pursuant to a negotiated agreement with the State, to one count of fourth degree defiant trespass of a dwelling, N.J.S.A. 2C:18-3(b), and, after waiving his right to grand jury presentment, to an accusation charging him with third degree burglary, N.J.S.A. 2C:18-2(b). Defendant was represented at the time by a staff attorney from the Hudson County Office of the Public Defender.
On the State's motion, the court amended count one of the indictment, which originally charged defendant with third degree burglary, to fourth degree defiant trespass.
Defendant committed this burglary while on bail for the offenses reflected in the indictment.
Under the terms of the plea agreement, the State was free to argue that the court sentence defendant to a term of imprisonment not to exceed three years on the burglary and a concurrent term of eighteen months on the defiant trespass. Given defendant's lack of criminal record, defense counsel would argue for a probationary sentence conditioned upon defendant participating in an outpatient program for alcoholism. Because defendant's post conviction relief is predicated on what defense counsel allegedly said to him at the time he pleaded guilty, we recite the relevant parts of the plea hearing at length:
DIRECT EXAMINATION BY [DEFENSE COUNSEL]:
Q. With regard to the amended Count 1 of Indictment 1774 of the 2003 term, Mr. Soriano, on the 24th day of May of [2003] in Union City, did you enter a basement apartment at . . . New York Avenue in Union City?
A. It was the first floor.
Q. Well, we can conform the charge to reflect that. Did you enter an apartment of another person on the first floor of that building?
A. That was the only apartment, yeah.
Q. Right, did you have the owner's permission to enter the apartment?
A. No.
THE COURT: And you knew you did not have the owner's permission when you entered that apartment, is that correct?
THE DEFENDANT: I wasn't thinking, I was really drunk, so.
THE COURT: Well, you were drunk, but you're not claiming that you did not [sic] have permission to go into that apartment? THE DEFENDANT: No.
THE COURT: Okay._You're saying that you knew what you were doing?
[DEFENSE COUNSEL]: You knew it wasn't your apartment.
THE DEFENDANT: Yeah, I knew it wasn't.
THE COURT: And you knew you did not have permission.
THE DEFENDANT: Yeah.
THE COURT: [Prosecutor], do you have any questions?
[Prosecutor]: No questions.
THE COURT: The Court is satisfied that a sufficient factual basis has been submitted to me upon which I can accept a plea of guilty to the charge of criminal trespass. And I want you to understand, sir, that if you were convicted of that particular offense, that the Court would have the power to sentence you to a jail term of up to 18 months, to fine you up [to] $7,500, and additionally I would have to impose a criminal crimes penalty of $50 and a Street Crimes penalty of $75, and a Law Enforcement penalty of $30, you understand that?
THE DEFENDANT: Yes.
THE COURT: You may proceed [Defense Counsel].
DIRECT EXAMINATION BY [DEFENSE COUNSEL]:
Q. With regard to the Accusation, Mr. Soriano, on the 31st day of October of [2003] in Union City, did you enter an apartment at . . . Palisade Avenue without the permission of the owner?
A. Yes.
Q. And while you were there, did you steal or attempt to steal something?
A. No.
Q. Did you take an item which did not belong to you?
A. Yes.
Q. A pillow from the sofa in fact, correct?
THE COURT: What was that did you say?
[DEFENSE COUNSEL]: It was a cushion, one of the cushions off of a sofa.
THE COURT: And you say you took that item, you know it did not belong to you after you had gone into that structure without permission.
THE DEFENDANT: Yeah, the officer told me, because I don't remember anything from that
- -
THE COURT: The officer said what?
THE DEFENDANT: The officer told me that that's what I had on when I was walking. Yes.
THE COURT: The officer said that you had a cushion with you when you were walking, but you don't remember taking - -
THE DEFENDANT: I don't remember entering the person's house or taking the pillow. I don't remember how I got home from work, but it's on the report that they said I was walking with it, so yes.
THE COURT: Well, go ahead, [Defense Counsel].
[DEFENSE COUNSEL]: If I may just have a moment, Judge, I have to explain something.
THE COURT: I take it, [Defense Counsel], that he is waiving any defenses of diminished capacity.
[DEFENSE COUNSEL]: That's what I just wanted to cover with him, Judge, and then I'll place it on the record.
[DEFENSE COUNSEL]: I've explained, Judge, to Mr. Soriano that he might have an intoxication defense that he might raise to some of the charges, but not all of the
charges._That the issue of intoxication
might mitigate the degree of some, but not all of the charge [sic]. And that because it would not cover all of the charges it would not be in his interest to raise them, given the nature of the plea bargain that we've worked out. And he's agreed with me, and you can ask him, that he wants to give up that defense, to the extent that he might be able to raise it.
THE COURT: Well, is that correct, sir?
THE DEFENDANT: Yes.
THE COURT: And you explained to him that self induced intoxication many times is not a defense.
[DEFENSE COUNSEL]: I just explained that to him.
THE COURT: Mr. Soriano, are you telling the Court that you do not dispute the facts that are in the police report, that you did enter into somebody's apartment without permission, or home I don't know what the structure was, it was a residence. And that you did take something from that residence, this pillow from that residence.
THE DEFENDANT: Yes.
THE COURT: You're not disputing those facts.
THE DEFENDANT: No.
[(Emphasis added).]
Defendant and his mother addressed the court at the sentencing hearing. Although under the plea agreement defendant could have been sentenced to a three-year term of incarceration, defendant asked the court to place him on probation conditioned on his attending an outpatient alcohol rehabilitation program. Defendant's mother also acknowledged her son's severe alcoholism, informing the court that she was then attending a program for parents of children who abuse alcohol. Based on a substance abuse evaluation prepared by the probation department, the trial court sentenced defendant to a five-year term of probation subject to completing an alcohol abuse rehabilitation program. Defendant completed his term of probation without further incident.
II
Defendant was in this country illegally at the time he pleaded guilty. According to his certification submitted in support of his petition for post conviction relief:
My finger prints were taken at the Immigration Office in Newark, New Jersey some time in early 2006. On or about July 17, 2006, I appeared for an interview at the local Immigration Office in Newark, New Jersey. I was interviewed by an immigration officer. I was asked to bring the
disposition of my criminal case and I supplied the paperwork I had to the immigration officer. I was told that I would receive a final decision by mail on my application for my green card. I never received any further notification from the Immigration Office in Newark, New Jersey.
On July 21, 2011, I was arrested in Union City, New Jersey at my home by ICE [Immigration and Customs Enforcement]. I have been detained at the Essex County Correctional Facility since that time. I was informed that I had an ICE detainer against me because of my Hudson County conviction.
I was further informed by an ICE agent that I could not be released on any amount of bond because under federal immigration laws my 2004 Hudson County conviction for burglary and criminal trespass make[s] me mandatory detainee. I didn't understand
why this was happening when I was innocent of those offenses. I should have never pled guilty.
[(Emphasis added).]
The only document included in the appellate record from federal immigration authorities is a "Notice of Hearing in Removal Proceedings" scheduled by the Immigration Court in Newark on November 14, 2011. The notice is addressed to defendant at the "Essex County Jail," but does not indicate the grounds for his deportation status.
On October 28, 2011, defendant filed a PCR petition seeking to vacate his guilty plea based on ineffective assistance of counsel. Defendant alleged that, at the time of the plea hearing in 2003, his attorney gave him incorrect legal advice concerning the immigration ramifications of pleading guilty to burglary and defiant trespass. Although the record before us is not definitive on this point, it appears that the trial court found defendant had established a prima facie case of ineffective assistance of counsel and accordingly ordered an evidentiary hearing.
At the time defendant filed this PCR petition, the Supreme Court had stayed "all litigation involving petitions for post-conviction relief that include claims regarding the application of State v. Nunez-Valdez, 200 N.J. 129 (2009), and Padilla v. Kentucky, 130 S. Ct. 1473 (2010), . . . pending disposition" of the appeal of our decision in State v. Gaitan, 419 N.J. Super. 365 (App. Div. 2011), reversed, 209 N.J. 339 (2012). Order No. M-1740, filed July 26, 2011, in State v. Gaitan, 209 N.J. 339 (2012). However, trial and appellate courts were also authorized "to order a lifting of the stay in individual cases where a defendant faces immediate removal or otherwise to prevent irreparable harm." Ibid.
See State v. Preciose, 129 N.J. 451, 462-63 (1992) ("[T]rial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief. As 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.").
On January 10, 2012, the PCR court conducted an evidentiary hearing, during which both defendant and the attorney who had represented him in 2003 testified. Because the attorney did not have an independent recollection of defendant's case, his testimony only described what his regular practice was in 2003 in cases where the client was a "non-citizen." Defense counsel was given a copy of the plea form that defendant signed, which showed the answer "Yes" circled to question 17; this question read: "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your guilty plea or your plea of guilty?" Counsel was then asked to describe what his regular practice was in 2003 when a non-citizen client would answer "Yes" to question 17:
My practice would have been to say, I don't know. I don't know what's going to happen. I know that there may be consequences, but I had - - I didn't know what they were.
. . . .
Q. Now, with regards to the plea hearing and putting on the record anything with regards to a plea form in Number 17, [sic] was it your practice to also put on the record anything with regard to the Number 17 question, if it was a non-citizen?
A. My recollection is that, at that time, that was not an issue that would get raised by either party, or for that matter, the Court. It was - - it was an unknown, and since it raised a lot of questions and normally the goal of both sides and, indeed, the Court would be to have the plea accepted, it was just not an area that we would go into in any detail. The question said may, and then the point was that the person would know that something might happen. But the only advice that I would give a client back then is that I wasn't an immigration attorney and I didn't practice in immigration courts. I didn't know
anything about immigration law, and I couldn't advise them as to what the possible consequences were.
Defendant testified that the first he saw or spoke to his attorney in 2003 was thirty minutes before the plea hearing. By that time, he had been incarcerated on the pending charges for approximately three weeks. He met with counsel at his cell in the courthouse to discuss the case. According to defendant, he rejected the State's first offer of five years in prison because he believed he was not guilty of burglary or trespass, given his highly intoxicated condition at the time. Defendant testified as follows:
Defendant answered "no" when specifically asked whether he had spoken to his attorney on the telephone before the plea hearing.
That I couldn't believe that they were charging me - - they were giving me a flat five for being intoxicated and not knowing what was the outcome, what happened that night, you know? I wasn't aware of what happened until I saw the police report and he told me what had happened. I don't remember anything from that night.
He finally agreed to accept an offer of "three flat,"knowing that his attorney would argue for a term of probation conditioned upon some kind of substance abuse treatment:
A "flat" term of imprisonment is a colloquialism to describe a term of imprisonment that does not have a period of parole ineligibility, in this case three years.
So he [defense counsel] went back and, I guess, talked to the Judge and he came back to me like ten minutes later and he said, the lowest they're willing to offer you is a three flat or you can go to trial but, if you lose it, they'll give you the maximum, probably seven years.
Q. Okay. Is that the time that you also went over the plea form with [defense counsel]?
A. No.
Q. You didn't go over the plea form then?
A. Not yet. He - - after I accepted the three flat was when he came over and he was telling me - - when he went over the plea, he didn't really go over it completely. He just basically focused that he would be pushing for probation on my sentencing date and to try to get me - - that was basically the main focus of his explanation to me on the plea form.
. . . .
Q. What about Question Number 17? You see it here and it says, do you understand that if you are not a United States citizen or national, you may be deported by virtue of your guilty plea or your plea of guilty?
A. It was not specifically like focused on -
Q. Do you recall him reading to you?
A. He read all the questions that I had already mentioned about the status, what he said. If you get probation, you'll probably be fine.
Q. Okay. So you did, in fact, discuss with [defense counsel] your status?
A. Yeah. But it was a - -
Q. What did he say?
A. It was a brief status. I only saw him for 30 minutes prior.
Q. Okay.
A. I told him that I was in process of application for INS and that would this affect me in any way if I plea guilty.
Q. Okay. And what was his response.
A. His response was like, well, basically, just again focusing on that probation part and like, if you get probation, you'll be fine.
. . . .
Q. Okay. Knowing what you know now about the mandatory deportation, would you had pled guilty - -
A. I would have never pled guilty.
Q. - -November, 2003?
A. No. Not at all.
Q. What do you think you would have done differently?
A. I would seek immigration Counsel and try to resolve this matter at that point instead of doing all this time that I'm doing now.
Q. Why do you think you didn't then?
A. Because I wasn't advised to. If you're telling me that I might be - - I'm going to be all right if I get probation and you're my counsellor [sic], I'm going to take your word for it. I think you're doing what's in the best interest for me.
Q. How old were you in 2003?
A. Nineteen.
[(Emphasis added).]
Defendant had been indicted and charged with second degree attempted arson, an offense that carries a presumption of incarceration. He was thus exposed to a term of imprisonment of between five to ten years. N.J.S.A. 2C:4 3-6a(2) The third degree charge of burglary reflected in the accusation arose while defendant was on bail on the indicted offenses. Defendant was thus facing two separate trials. If convicted after both trials, defendant risked consecutive sentences. See State v. Yarbough, 100 N.J. 627 (1985).
--------
Defendant gave the following testimony on cross-examination by the prosecutor:
Q. Mr. Soriano, you clearly understand English, correct?
A. Yes.
Q. Okay. You went to school in the States. is that correct?
A. Yes.
Q. You attended college. Is that correct?
A. Some. Yeah.
Q. Okay. On January 15, 1994, you crossed over to U.S. State lines from Mexico. Is that correct?
A. Yes.
Q. When you crossed, you weren't legalized in the U.S. at the time. Is that correct?
A. Yes.
Q. You resided in this country for 17 years. Is that correct? In 17 years, you were never legalized. Is that correct?
A. I was going to be.
Q. But you never legalized?
A. No.
Q. Okay. You had a pending application with INS on January of 2003. Is that correct?
A. Yes.
Q. And your green card status was pending and is still pending, correct?
A. Yeah.
Q. Okay. You haven't received any indication whether it's been granted or denied. Is that correct?
A. No. At the moment, they gave me a social security [number] and work permit - -
Q. But you - -
A. - - while I was being processed.
Q. Okay. But you haven't - - you haven't received any indication whether it's been granted or denied?
A. No.
Q. Your status is still the same as it was in 1994, correct?
A. Yes.
[(Emphasis added).]
Against this record, the PCR judge found defendant's testimony credible "when he says that he asked [defense counsel] about the deportation issue and he was told that, so long as he gets probation that he would be all right, meaning that he would not be deported. That was affirmative incorrect advice." (Emphasis added). The judge then addressed whether, but for the putative "incorrect advice," defendant would have not pleaded guilty. Based on the plea hearing, the PCR judge made the following finding:
If the defendant was so intoxicated that he did not know where he was, if he thought he was in his own apartment, if he didn't know where he was or didn't have the intent to take something that he knew did not belong to him, if intoxication was to that extent and it certainly appears that the intoxication issue was significant in both cases as I find it, then it certainly was a colorable defense based on intoxication.
So I'm going to find that prong two has been . . . successfully met by petitioner, that had he been told accurate information regarding the plea and how it would have affected his status in the country, combined with the intoxication defense, that he would have rolled the dice in going to trial because [of] the unique situation of this defendant . . . .
From this record, the State argues on appeal that the PCR court erred in setting aside defendant's conviction and directing that he stand for trial.
III
We review a claim of ineffective assistance of counsel under the two prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, defendant must demonstrate that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must show that there exists "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.
On the question of a defendant's immigration status, the United States Supreme Court has held that the failure of an attorney to advise a client that his criminal conviction may lead to his deportation is sufficient to satisfy the first prong under Strickland. Padilla v. Kentucky, ___ U.S. ___, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284, 299 (2010). Stated differently: Provided that the attorney is aware of the client's immigration status, counsel provides ineffective assistance when the attorney does not advise the client that the criminal conviction may lead to deportation.
As Justice Stevens explained in Padilla:
Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward, . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.
[Id. at ____, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296 (footnote omitted).]
The Padilla Court did not address the second prong under Strickland, that but for counsel's error, the result would have been different, Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698, because the Kentucky Supreme Court did not initially consider this issue. See Verizon Commc'ns, Inc. v. FCC, 535 U.S. 467, 530, 122 S. Ct. 1646, 1682-83, 152 L. Ed. 2d 701, 749 (2002).
The question of whether the duty imposed on attorneys in Padilla should be applied retroactively was recently answered by our Supreme Court in State v. Gaitan, 209 N.J. 339 (2012). In Gaitan, the Court concluded that Padilla represented "a new constitutional rule of law that, for Sixth Amendment purposes, is not entitled to retroactive application on collateral review." Id. at 371. Thus, the relief available to defendant in this matter must be found exclusively within the four corners of our Supreme Court's holding in State v. Nuñez-Valdéz.
In Nuñez-Valdéz, the Court addressed a claim of ineffective assistance of counsel predicated on counsel's alleged erroneous advice to a client concerning the immigration consequences of pleading guilty to a crime. Nuñez-Valdéz, 200 N.J. at 139-40. The defendant in Nuñez-Valdéz pleaded guilty to what proved to be a deportable offense after he had (1) answered "yes" to the question in the plea form that read "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?" and (2) claimed that his attorney assured him that he would not be deported by pleading guilty. Id. at 141.
As the PCR court did here, the trial court in Nuñez-Valdéz conducted an evidentiary hearing in which it found, as a matter of credibility, that "immigration consequences were very important to [the defendant] and that [his attorneys] told him that his immigration status would not be affected by a decision to plead guilty." Ibid. The Court then explained the implications of these findings on the defendant's constitutional right to effective assistance of counsel:
In short, the trial court accepted defendant's testimony that he would not have pled guilty if he had known he would be deported, and found that defendant did not give a knowing, voluntary or intelligent plea. Based on the trial court's findings, which are amply supported by the record, defendant satisfied the prejudice prong of the ineffective-assistance-of-counsel analysis by showing that he would not have pled guilty but for the inaccurate information from counsel concerning the deportation consequences of his plea. Accordingly, we reverse the judgment of the Appellate Division and reinstate the trial court's order that directed withdrawal of defendant's plea and reinstatement of the matter for trial.
[Id. at 143 (footnote omitted).]
Thus, Nuñez-Valdéz established that a defendant's constitutional right to effective assistance of counsel encompasses the right to receive, under the appropriate circumstances, correct legal advice on the immigration consequences of pleading guilty to a crime. A defendant can satisfy the first prong under Strickland/Fritz if he or she can show that defense counsel gave erroneous advice in this area of law. Thereafter, a defendant can satisfy the "prejudice" prong under Strickland/Fritz if a trial court finds, from the evidence adduced at an evidentiary hearing, that the defendant would not have pleaded guilty if he or she had received the correct legal advice as to the immigration consequences of his or her plea.
Our standard of review requires us to affirm the findings of the trial court as long as they are supported by sufficient credible evidence in the record. See id. at 141. We are also bound to defer to the findings of the trial judge "'which are substantially influenced by his opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). In Elders the Court emphasized that
[a]n appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion
were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions."
[Id. at 161 (internal citations omitted).]
With these principles as our guide, we are satisfied that the PCR court's finding that defendant would not have pleaded guilty but for his attorney's incorrect advice as to the immigration consequences of his plea is not supported by sufficient credible evidence in the record.
Prong one of the Nuñez-Valdéz paradigm requires defendant to show that his defense counsel gave him erroneous advice as to the immigration consequences of his conviction. Here, the court accepted defendant's testimony that his attorney told him that if he received a probationary sentence, he would not face deportation. Defense counsel, an experienced staff attorney with the Hudson County Public Defender's Office, did not recall defendant's case in particular. However, counsel provided detailed testimony concerning his practice in 2003 with respect to non-citizen defendants. Counsel candidly testified that "[t]he only advice that I would give a client back then is that I wasn't an immigration attorney and I didn't practice in immigration courts. I didn't know anything about immigration law, and I couldn't advise them as to what the possible consequences were."
According to defendant, his encounter and interaction with defense counsel occurred just thirty minutes before the plea hearing. Defendant testified that the main focus of the discussion centered on the negotiations of the plea agreement. Defense counsel's efforts were focused on trying to convince the State to agree to a probationary sentence. Despite this, defendant claimed that when he told defense counsel of his pending application for a "green card," counsel allegedly said, "[I]f you get probation, you'll be fine."
Given the conflicting versions provided by these two witnesses, the PCR judge was entitled to accept defendant's testimony as more credible. However, this finding alone does not mean that defense counsel gave "incorrect legal advice."
The record shows that defendant's current deportation status may not have been caused by his 2003 criminal convictions. Defendant testified that he entered this country from Mexico illegally in 1994. At the time he pleaded guilty in 2003, he had a pending application for a "green card." He was interviewed by immigration officials on July 17, 2006, and was specifically asked "to bring the disposition" of his criminal case. Defendant testified that after he provided this information to the immigration authorities, he was told he "would receive a final decision by mail on [his] application for a green card." He has not, to date, received a response from immigration on his adjustment application.
Despite his detention in 2011, defendant testified that he has not received any indication from the immigration authorities denying or approving his application to legalize his presence in this country. In fact, his immigration status remained as it was in 1994. This evidence directly undermines the PCR court's conclusion that defense counsel gave defendant incorrect legal advice concerning the immigration consequences of his conviction.
The only connection between defendant's 2003 conviction and his current deportation status is defendant's hearsay testimony concerning what was allegedly said to him by an unknown immigration official. Indeed, the absence of any enforcement effort by immigration authorities from 2006 to 2011, despite having known of defendant's conviction, strongly argues against any causal link between the two. On this record alone, there is no competent evidential basis to support the PCR court's finding that defense counsel's advice was incorrect.
Although this conclusion is itself sufficient to sustain our decision to reverse, we are satisfied that defendant was not prejudiced by defense counsel's performance. Prong two under the Nuñez-Valdéz paradigm requires defendant to show that he was prejudiced by defense counsel's incorrect legal advice. The PCR court found that "combined" with the intoxication defense, defendant would have rejected the plea offer and "rolled the dice" at trial. Here, again, the evidence does not support the PCR court's finding.
Under the terms of the plea agreement, defendant was exposed to a three-year term of incarceration. A probationary sentence was not an enforceable part of the plea agreement. Although defense counsel told defendant that he would argue for a probationary sentence given defendant's lack of criminal record, a probationary sentence was not guaranteed. The judge who presided at the plea hearing addressed defendant directly on this point and confirmed that defendant was aware that, under the plea agreement, he was facing a three-year term of incarceration. Defendant acknowledged this fact on the record.
The record also shows that, if defendant had been convicted of the same offenses after trial, he was facing a possible maximum sentence of seven years incarceration, because he committed two separate crimes on two separate days - - the latter of which he committed while on bail for the first. By his own admission, defendant's principal preoccupation was to avoid a long prison sentence. The record reflects that defense counsel discussed with defendant the limited applicability of the intoxication defense, especially in light of the fact that defendant was facing two prosecutions for two separate crimes. The judge also addressed defendant directly on this issue, ensuring that defendant understood that by pleading guilty he was waiving his right to assert an intoxication defense.
This record shows defendant knowingly and voluntarily waived the intoxication defense and agreed to plead guilty to avoid receiving a prison sentence greater than three years. Mitigating the immigration consequences of his conviction was not a material consideration of the plea agreement because a probationary sentence was not guaranteed. Defendant received the benefits of his bargain.
Reversed.
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
_______________
CLERK OF THE APPELLATE DIVISION