DOCKET NO. A-5314-11T1
Law Offices of Nelson Gonzalez, P.C., attorneys for appellant (Nelson Gonzalez, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Stephen Natoli, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 04-02-0170; 04-03-0449. Law Offices of Nelson Gonzalez, P.C., attorneys for appellant (Nelson Gonzalez, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Stephen Natoli, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Carlos Chang Cruz appeals from a Law Division order, after an evidentiary hearing, denying his petition for post-conviction relief (PCR).
On appeal, defendant raises the following issues for our consideration:
POINT IFollowing our review, in light of the record and applicable law, we affirm.
THE DEFENDANT'S ORIGINAL DEFENSE COUNSEL'S MISADVICE AND ALLOWANCE FOR THE DEFENDANT TO PLEAD GUILTY TO POSSESSION WITH INTENT TO DISTRIBUTE MARIJUANA WITHIN 1,000 FEET OF A SCHOOL, AN AGGRAVATED FELONY UNDER FEDERAL IMMIGRATION LAW, BROUGHT ABOUT CATASTROPHIC IMMIGRATION CONSEQUENCES TO THE DEFENDANT.
DEFENDANT WAS ERRONEOUSLY AND AFFIRMATIVELY MISADVISED BY HIS PRIOR DEFENSE COUNSEL REGARDING THE CERTAIN IMMIGRATION CONSEQUENCES THAT AWAITED HIM AS A RESULT OF HIS GUILTY PLEAS, THEREFORE RENDERING THE DEFENSE COUNSEL'S PERFORMANCE DEFICIENT IN VIOLATION OF THE DEFENDANT'S CONSTITUTIONAL RIGHT TO EFFECIVE ASSISTANCE OF COUNSEL, AND REQUIRING THAT THE DEFENDANT'S GUILTY PLEAS BE VACATED AND/OR PERMITTED TO BE WITHDRAWN.
HAD THE DEFENDANT BEEN AWARE OF THE ERRONEOUS AND AFFIRMATIVE MISADVICE PROVIDED BY HIS DEFENSE COUNSEL REGARDING THE IMMIGRATION CONSEQUENCES THAT AWAITED HIM, THERE IS A STRONG PROBABILITY THAT BUT FOR THE DEFENSE COUNSEL'S ERRORS THE DEFENDANT'S MATTER WOULD HAVE PROCEEDED DIFFERENTLY IN THAT THE DEFENDANT WOULD HAVE ELECTED NOT TO PLEAD GUILTY AND INSTEAD PROCEED TO TRIAL.
THE COURT BELOW FAILED TO UTILIZE THE CORRECT STANDARD IN REACHING ITS DECISION AND FAILED TO PROVIDE ADEQUATE FINDINGS OF FACTS AND CONCLUSIONS OF LAW TO SUPPORT ITS DECISION.
The record discloses the following facts and procedural history. On May 17, 2004, defendant, a citizen of Ecuador and a Lawful Permanent Resident of the United States, pled guilty to third-degree possession with intent to distribute marijuana within 1000 feet of school property, N.J.S.A. 2C:35-7(a), and third-degree distribution of marijuana within 1000 feet of school property, N.J.S.A. 2C:35-7(a), stemming from two separate indictments. Pursuant to a negotiated plea agreement, the State agreed to dismiss all remaining charges related to the incidents. On October 11, 2005, defendant was sentenced to five years of special probation, which included defendant's mandatory completion of a long-term drug rehabilitation program. Fines and additional penalties were imposed. Defendant did not file a direct appeal.
On June 9, 2010, Immigration and Customs Enforcement (ICE) agents detained defendant pending deportation proceedings as a result of his 2005 drug offense convictions. On March 18, 2011, defendant filed a PCR petition, alleging ineffective assistance of plea counsel. The PCR judge granted defendant's request for an evidentiary hearing.
Although defendant filed his PCR petition more than five years following his conviction, contrary to N.J.S.A. 3:22-12(a)(1), the PCR judge determined defendant illustrated excusable neglect because he was unaware of the immigration consequences of pleading guilty until he was detained by ICE agents. Defendant acted promptly once he was made aware of his ICE detainer. --------
Defendant testified before the PCR court that his primary concern upon pleading guilty in May 2004 was the possibility of deportation because his entire family lived in the United States, and it is where he lived most of his life. He claimed his attorney understood deportation was his greatest concern, but his attorney told him if he pled guilty and attended an inpatient program as opposed to prison, there was no risk of deportation. He testified if he knew of the possibility of deportation, he would have proceeded to trial. He further stated he only pled guilty because his attorney told him what to say, but that he was, in fact, not guilty of the charges. Defendant further asserted he told his counsel he was not guilty of the charges.
Defendant's plea counsel testified before the PCR judge that she told defendant that there was a "possibility" that he would be deported. She further testified defendant's primary concern was avoiding imprisonment. She acknowledged she was unaware that a "thousand foot" charge constituted an aggravated felony for federal deportation purposes when this matter occurred, but asserted she never told her client he would not be deported and never told him that a certain sentence would have an impact on deportation consequences. She understood that the crime, rather than the sentence, imposes immigration consequences. She further insisted defendant told her he was guilty and that his primary concern was not going to State prison.
On April 23, 2012, the PCR judge issued a comprehensive written opinion denying defendant's PCR. Importantly, the judge did not find defendant's testimony to be credible, but determined plea counsel's testimony "bore no sense of untruthfulness." As such, he found plea counsel advised defendant "there was a 'possibility' that he would be deported." The PCR judge also concluded, because the State had significant proofs against defendant, it was more likely that his primary concern was avoiding a prison sentence. The judge explained, "There is no real advantage in serving two (2) consecutive thousand foot prison sentences and then running the risk of deportation over serving a probationary sentence and running the risk of deportation."
PCR "'is New Jersey's analogue to the federal writ of habeas corpus.'" State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)). In order to set aside a conviction based upon a claim of ineffective assistance of counsel, a petitioner must prove, by a preponderance of the evidence, that:
(1) counsel performed deficiently, and made errors so serious that he or she was not functioning as counsel guaranteed by the Sixth Amendment; and (2) defendant suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); Preciose, [supra, 129 N.J. at 459] (reciting preponderance of the evidence standard of proof); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard).
[State v. L.A., 4 33 N.J. Super. 1, 13 (App. Div. 2013).]
The United States Supreme Court has extended these principles to a criminal defense attorney's representation of an accused in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). To establish a prima facie case of ineffective assistance of counsel under the first prong of the Strickland test, a defendant must demonstrate "counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. This requires a showing "that counsel was not functioning as the counsel guaranteed by the Sixth Amendment. . . ." State v. Gaitan, 209 N.J. 339, 349-50 (2012) (citation and internal quotation marks omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). To do so, a defendant must "identify specific acts or omissions that are outside the wide range of reasonable professional assistance . . . ." State v. Jack, 144 N.J. 240, 249 (1996) (citation and internal quotation marks omitted). "The test is not whether defense counsel could have done better, but whether he [or she] met the constitutional threshold for effectiveness." State v. Nash, 212 N.J. 518, 543 (2013). When a guilty plea is contested, counsel's performance is not deficient if "a defendant considering whether or not to plead guilty to an offense receives correct information concerning all of the relevant material consequences that flow from such a plea." State v. Agathis, 424 N.J. Super. 16, 22 (App. Div. 2012).
To meet the second prong of the Strickland test, "[a] defendant must show that there is 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. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. When defendant pleads guilty, a defendant must establish that there is a reasonable probability he or she would not have pled guilty and insisted on going to trial, but for counsel's deficient performance. Gaitan, supra, 209 N.J. at 351.
Our review of an order granting or denying PCR contains consideration of mixed questions of law and fact. State v. Harris, 181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We defer to a PCR court's factual findings and will uphold those findings that are "supported by sufficient credible evidence in the record." Nash, supra, 212 N.J. at 540 (citations omitted). However, a PCR court's interpretations of law are provided no deference and are reviewed de novo. Id. at 540-41.
In State v. Nuñez-Valdéz, 200 N.J. 129, 143 (2009), the Court held a defendant can show ineffective assistance of counsel by proving "inaccurate information from counsel concerning the deportation consequences of his plea," resulting in his guilty plea. Counsel must avoid "false or misleading information," id. at 138, and is required to inform a defendant entering a guilty plea, regarding the relevant mandatory deportation law that is "succinct, clear, and explicit[.]" Padilla v. Kentucky, 559 U.S. 356, 368, 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284, 295 (2010). The Court made clear counsel'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 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296).
In Chaidez v. United States, ___ U.S. ___, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013), the United States Supreme Court held Padilla imposed a new obligation and announced a new rule of law. Accordingly, its holding would be applied prospectively and "[u]nder Teague[ v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 1075, 103 L. Ed. 2d 334, 356 (1989)], defendants whose convictions became final prior to Padilla, therefore cannot benefit from its holding." Chaidez, supra, ___ U.S. at ___, 133 S. Ct. at 1113, 185 L. Ed. 2d at 162. Further, "Padilla is not entitled to retroactive application based on a state law retroactivity analysis." Gaitan, supra, 209 N.J. at 372.
Here, the PCR judge relied on substantial credible evidence in determining that defendant's plea counsel provided adequate representation, relying largely on credibility findings and the lack of evidence to support defendant's claims. We are obliged to defer to a trial court's credibility findings. State v. Locurto, 157 N.J. 463, 474 (1999).
In addition to the PCR judge's credibility findings, sufficient credible evidence in the record supports his conclusions. The record demonstrates defendant was made aware of potential immigration consequences during the plea colloquy in which the judge questioned, "Has your attorney explained to you that these guilty pleas could impact your immigration status, potentially could result in deportation proceedings . . . instituted by the immigration authorities?" Defendant answered in the affirmative and indicated he still wished to continue with his guilty pleas. Additionally, question seventeen of defendant's plea form stated: "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 answer "YES" was circled in response, and defendant signed the form.
Although we agree with the PCR judge's determination that there was no deficient performance, for thoroughness we turn to the second prong of the Strickland test.
Strickland's second prong requires a defendant to "show that the deficient performance prejudiced the defense." State v. Taccetta, 200 N.J. 183, 193 (2009) (citation and internal quotation marks omitted). Under the second prong, prejudice is not presumed and must be proven by the defendant. Fritz, supra, 105 N.J. at 52. The defendant must show that, "had he been properly advised, it would have been rational for him to decline the plea offer and insist on going to trial and, in fact, that he probably would have done so[.]" State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011). "[A] petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla, supra, 559 U.S. at 372, 130 S. Ct. at 1485, 176 L. Ed. 2d at 297. This "is an exacting standard: [t]he error committed must be so serious as to undermine the court's confidence in . . . the result reached." State v. Allegro, 193 N.J. 352, 367 (2008) (alteration in original) (citations and internal quotation marks omitted).
Defendant testified had he known he would be deported, he would have challenged the charges and proceeded to trial. However, the PCR judge rejected this testimony as not credible and found that the second prong of the Strickland test was not satisfied because defendant did not prove that he would have proceeded to trial even if counsel's performance had been deficient. The PCR judge noted the significant evidence against defendant and the favorable deal he was given for his guilty plea. We find no reason to disturb the PCR court's determination. The PCR judge relied on substantial credible evidence to support his conclusion, and defendant offered only his own bald assertions to prove that he would have proceeded to
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION