Opinion
DOCKET NO. A-5253-13T1
02-23-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. IVELISSE BERROA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Dianne Glenn, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Brian W. Schreyer, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Ostrer. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-08-1385. Joseph E. Krakora, Public Defender, attorney for appellant (Dianne Glenn, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Brian W. Schreyer, Assistant Prosecutor, on the brief). PER CURIAM
This case returns to us after a remand to conduct an evidentiary hearing on defendant's petition for post-conviction relief (PCR). State v. Berroa, No. A-5706-11 (App. Div. Apr. 17, 2013). After the hearing, the court denied defendant relief. We affirm.
Prior to the hearing, defendant contended in a certification that her plea counsel misinformed her that she became a citizen as a result of her adoption in Puerto Rico by her step-mother, who was a United States citizen. Because that was not true, defendant argued her counsel failed to tell her that her plea would have immigration consequences. The trial court denied PCR; on appeal, we held defendant had established a prima facie claim of ineffective assistance. We remanded for an evidentiary hearing to determine whether her belief that she was a citizen was a product of her counsel's mistaken advice.
On remand, Judge Lisa Rose heard testimony from the defendant and her plea counsel. We discern the following facts from that record.
Defendant pleaded guilty on January 17, 2007 to two counts of third-degree receiving stolen property, N.J.S.A. 2C:20-7, and third-degree possession of marijuana with intent to distribute in a school zone, N.J.S.A. 2C:35-7. The crimes were charged in a thirty-one count indictment that included fifteen weapons offenses and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(2). In exchange for her plea, the State dismissed the remaining twenty-eight counts of the indictment. On March 17, 2007, the court sentenced defendant, in accord with the plea agreement, to an aggregate three years imprisonment with one year of parole ineligibility.
Because defendant is a non-citizen, her conviction of possession of marijuana with intent, N.J.S.A. 2C:35-7, was a deportable offense under 8 U.S.C.A. § 1227(a)(2)(B).
At the plea hearing, defendant testified she was a United States citizen. She circled "N/A" in response to Question 17 of the plea form, which asked, "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?" She testified her counsel read and explained the plea form to her.
At the remand hearing before Judge Rose, defendant gave conflicting testimony about whether her belief she was a citizen was based on her counsel's advice. Asked to recount their conversation about her citizenship, she answered: "When . . . he asked me . . . if I was a citizen, and that was for a surety. I said, I'm — I'm a U.S. citizen. And I said because I — I am adopted. My mother is Puerto Rican." She testified that her counsel told her that her status would not "affect" her if she pleaded guilty and that she "would be out in one year."
However, she then testified her counsel was the source of her understanding that she was a U.S. citizen:
[DEFENDANT'S COUNSEL] And when he said it wouldn't affect you, what do you mean by that? You — you thought that meant "immigration-wise"?
[DEFENDANT] In the sense that he said — he asked me, and then he said that he feel if I was adopted by Puerto Rican — by Puerto Rican people, that I'm — that I'm a citizen and — and that's it. No problem.
[DEFENDANT'S COUNSEL] And that's what your attorney told you.
[DEFENDANT] That's what he told me.
On cross examination, defendant clarified that she, not her counsel, was the first to say she was a U.S. citizen:
[PROSECUTOR] Okay. And you told your attorney about your adoption?Regarding question 17, she testified her counsel told her "that was not for me," which is why he circled "N/A." Defendant testified that her counsel never explained the possible deportation consequences of her plea and, had she known she was not a citizen, she would not have pleaded guilty.
[DEFENDANT] Yes, of course.
[PROSECUTOR] And told him that you're a citizen?
[DEFENDANT] I . . . told her [sic] that I was a citizen. That I was — since I was a minor when I was adopted, automatically I will become — I was a United States citizen.
Defendant's counsel testified that he did not remember anything specific about representing defendant. He described how he generally consulted clients about the consequences of guilty pleas. If a client told him she was legally adopted by an American citizen, he would accept that as true, and not attempt to verify that claim. But, he would ask such a client if he or she were a citizen, and if the client did not know, he would advise the client to check on his or her status. He stated he would not "advise them as to whether or not they became . . . an American citizen by virtue of that adoption." He also stated that he advised all non-citizen clients of the risks of removal upon conviction.
Defendant's counsel also testified that he would have reviewed defendant's arrest report and presentence report (PSR). Based on the arrest report, which stated defendant's birthplace as the Dominican Republic, he "would have known that [defendant] was born in Dominican Republic." In the PSR, the "U.S." citizenship box was not checked, and the "Other" box was checked, with the word "Dominican" inserted. The PSR stated elsewhere that defendant stated she "received her citizenship" after being adopted, and was also issued a Social Security Card. With respect to question 17, counsel stated he would not have advised defendant to answer "N/A" if she had told him she was not a citizen.
The plea form, arrest report, and presentence report were admitted into evidence, but only the plea form is in the record before us.
In an April 25, 2014 written opinion, Judge Rose denied PCR. She applied the two-prong test for deciding claims of ineffective assistance of counsel. 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 show (1) 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) defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different). The judge found that defendant had not established either prong.
With respect to the deficiency prong, Judge Rose applied the standard of performance enunciated in State v. Nunez-Valdez, 200 N.J. 129, 140-42 (2009), that counsel has a professional duty to not provide false or affirmatively misleading advice about the deportation consequences of a guilty plea. The judge found that defendant's counsel "did not advise [her] that she was a citizen"; rather, counsel "accepted her representations that she had been adopted by a Puerto Rican woman and thereby became a citizen of the United States." The judge noted that defendant had long believed her adoption entitled her to United States citizenship. Accordingly, Judge Rose held defendant failed to show that her counsel provided false or affirmatively misleading advice.
The court also found defendant did not establish the second prong, which requires a showing "that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial." Id. at 139 (internal quotation marks and citation omitted). Judge Rose noted that had defendant gone to trial and been found guilty on all counts, she could have received consecutive sentences resulting in at least ten years, and up to a maximum of twenty years, of imprisonment. The judge also concluded the State's proofs against defendant were "overwhelming."
Defendant raises the following argument on appeal:
THIS COURT MUST AGAIN REVERSE THE PCR COURT'S ORDER AND REMAND THIS CASE BACK TO THE TRIAL COURT TO ALLOW THE DEFENDANT TO VACATE HER GUILTY PLEA AS THE PCR JUDGE ERRED IN DETERMINING THAT DEFENDANT DID NOT MEET HER BURDEN UNDER THE STRICKLAND STANDARD FOR INEFFECTIVE ASSISTANCE OF COUNSEL.
We defer to the trial court's fact findings after an evidentiary hearing on a PCR petition. State v. Nash, 212 N.J. 518, 540 (2013). We affirm the PCR court's findings if they are supported by sufficient credible evidence in the record, given the court's opportunity to make credibility determinations based on first-hand observation of the witnesses' demeanor. Nunez-Valdez, supra, 200 N.J. at 141. We review de novo the court's legal conclusions. Nash, supra, 212 N.J. at 540-41.
In Padilla v. Kentucky, 559 U.S. 356, 366, 130 S. Ct. 1473, 1482, 176 L. Ed. 2d 284, 294 (2010), the United States Supreme Court declared that the right to counsel extends to advice regarding the deportation consequences of a guilty plea. In cases where deportation is certain, counsel must inform her client that a plea carries a risk of deportation. Id. at 373-74, 130 S. Ct. at 1486, 176 L. Ed. 2d at 299. In cases where the deportation consequences are unclear, counsel "need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Id. at 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296. The Court declined to distinguish between providing affirmative misadvice and providing no advice, holding that failure to give advice about deportation satisfies the first prong of Strickland. Id. at 370-71, 130 S. Ct. at 1484, 176 L. Ed. 2d at 296-97.
Padilla was decided in 2010 — three years after defendant entered her guilty plea — and does not apply retroactively. Chaidez v. United States, ___ U.S. ___, ___, 133 S. Ct. 1103, 1105, 185 L. Ed. 2d 149, 154 (2013); State v. Gaitan, 209 N.J. 339, 372-73 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). Ineffective assistance claims based on pre-Padilla guilty pleas are decided under Nunez-Valdez, which requires a petitioner to establish that counsel provided affirmative misadvice regarding the immigration consequences of the plea. Gaitan, supra, 209 N.J. at 373-74; Nunez-Valdez, supra, 200 N.J. at 139-42.
We discern no error in the court's finding that defendant did not meet her burden under Nunez-Valdez. There was sufficient record evidence to support the judge's finding that counsel did not misadvise defendant that she was a United States citizen, but simply accepted as true defendant's representation that she was. As defendant's belief that she was a citizen was not the product of counsel's advice, counsel did not affirmatively provide false information to defendant.
On this appeal, defendant presents the newly minted argument that her counsel was obliged to verify defendant's assertion that she was a citizen, and his failure to do so was ineffective assistance of counsel. In support, she cites Gaitan, supra, for the rule that "failure to inform a client as to the risk of deportation constitutes ineffective assistance of counsel."
However, we are unconvinced that an attorney in the pre-Padilla setting was obliged to verify a client's assertion of citizenship to render reasonably effective assistance under "prevailing professional norms." See Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 693-94. Nothing in Nunez-Valdez requires an attorney to conduct independent research to determine his client's citizenship status after the client has unequivocally stated she is a United States citizen.
Our decision does not address what an attorney must do, post-Padilla, to provide effective assistance of counsel. We note that the most recent ABA standards, promulgated in 2015, state that defense counsel "should determine a client's citizenship and immigration status[.]" ABA Criminal Justice Standards for the Defense Function 4-5.5(a) (4th ed. 2015). This is not always an easy determination to make. See Padilla, supra, 559 U.S. at 379-80, 130 S. Ct. at 1489, 176 L. Ed. 2d at 302 (Alito, J., concurring) ("[I]t may be hard, in some cases, for defense counsel even to determine whether a client is an alien"). Whether a defense attorney post-Padilla has a duty to verify a client's citizenship status, and the scope of such a duty, we leave for a future case to decide. --------
Though the absence of affirmative misadvice is dispositive, we further note it would not have been unreasonable for counsel to believe defendant's explanation that her adoption entitled her to citizenship. Under 8 U.S.C.A. § 1431(b), a child adopted by a United States citizen parent acquires citizenship automatically if she satisfies the conditions in § 1431(a), as well as the conditions in 8 U.S.C.A. § 1101(b)(1)(E). Assuming defendant was adopted by a Puerto Rican citizen when she was twelve years old, it is apparent some of those conditions were satisfied. Thus an attorney reviewing these provisions could reasonably believe defendant's assertion that she was a citizen. See Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693 (counsel's performance is not deficient unless it falls "below an objective standard of reasonableness").
We also agree with Judge Rose that defendant did not establish the second prong of Strickland. This requires a defendant to prove "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985). "[A] petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." State v. O'Donnell, 435 N.J. Super. 351, 371 (App. Div. 2014) (quoting Padilla, supra, 559 U.S. at 372, 130 S. Ct. at 1485, 176 L. Ed. 2d at 297). A defendant's "bald assertion that [s]he would not have pled had [s]he known of the deportation consequences" does not satisfy this burden. Gaitan, supra, 209 N.J. at 376.
The charges against defendant stemmed from a search of her Jersey City apartment, in which police seized multiple weapons and marijuana. Defendant was in the apartment when it was searched. She admitted that she possessed two of the firearms knowing they had probably been stolen, and that she possessed marijuana with the intent to distribute it. She asserted vaguely she did not have access to every room in the house, but provided no coherent defense to the charges that would have made going to trial a rational decision. If convicted, she faced not only deportation, but the likelihood of a significantly longer sentence than the three-year term and one-year parole bar she received. Defendant has not shown 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.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION