Opinion
DOCKET NO. A-5590-12T1
03-12-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BIKINSON CARMIL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-08-01809. Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from the denial of his motion for post-conviction relief (PCR) following an evidentiary hearing.
On September 28, 2006, defendant pled guilty to third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5(b), and fourth-degree possession of a prohibited device (hollow-nosed bullets), N.J.S.A. 2C:39-3(f). At the time he pled guilty, defendant was a lawful permanent resident of the United States.
On January 5, 2007, defendant was sentenced to a term of three years for unlawful possession of a weapon and to a concurrent term of one year for possession of prohibited devices. Defendant did not file a direct appeal from his convictions and sentence.
On December 21, 2009, the Immigration Court ordered that defendant be removed from the United States to Haiti.
Although a copy of the motion was not provided, the record indicates defendant filed a motion for post-conviction relief on April 8, 2010; specifically, he sought to set aside his guilty plea. The certification he filed in support of his motion, which was provided, claims plea counsel failed to advise him he would be removed if he pled guilty and, had he known, he would not have pled. On April 10, 2010, defendant was assigned counsel.
On February 21, 2013, the PCR court held an evidentiary hearing "to determine whether defendant was affirmatively misadvised regarding the immigration consequences of pleading guilty." During the hearing defendant testified that plea counsel failed to inform him that he would be deported in the event he pled guilty to the charges. The PCR court denied defendant's petition by order dated April 3, 2013. In a written opinion the PCR court stated, in pertinent part:
This Court finds that [plea counsel] never discussed Defendant's citizenship status or the deportation consequences of pleading guilty. While [plea counsel] was unable to precisely recall Defendant's case, the Defendant testified, numerous times, that he never discussed immigration consequences with [plea counsel]. Further, Defendant stated that he never revealed to [plea counsel] that he was born in Haiti or that he was not a United States Citizen.
Defendant presents the following issues for our consideration in his appeal.
POINT I: THE DEFENDANT WAS SUBJECTED TO A MANIFEST INJUSTICE BY ENTERING INTO A GUILTY PLEA BASED ON MISINFORMATION CONCERNING THE MATERIAL TERMS OF THE PLEA AGREEMENT.We are not persuaded by these arguments and affirm substantially for the reasons set forth by Judge Mark H. Sandson in his comprehensive written opinion.
POINT II: THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION.
To establish a case of ineffective assistance of counsel, a defendant must show that, first, the attorney "made errors so serious that the attorney was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Second, the defendant must show that counsel's errors were so serious that defendant was deprived of a fair trial. Ibid. Further, a defendant seeking to set aside a guilty plea based on ineffective assistance of counsel must show his attorney's performance was not "'within the range of competence demanded of attorneys in criminal cases' and '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.'" State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009)(quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).
Nuñez-Valdéz further held that a defendant meets the first prong of the Strickland test if the attorney renders false or affirmatively misleading advice about the deportation consequences of a guilty plea. Id. at 140-42. At the time Nuñez-Valdéz was decided, an attorney was not required to give any advice about whether a defendant may be removed if he or she pled guilty; however, if any advice was rendered and it was erroneous or misleading, the first prong of the Strickland test was met.
Within a year that Nuñez-Valdéz was decided, the United States Supreme Court went further and held in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), that the Sixth Amendment obligation to render effective assistance requires criminal defense attorneys to inform clients of the possible immigration consequences of entering a guilty plea. Id. at 368, 130 S. Ct. at 1483, 176 L. Ed. 2d at 295. That is, an attorney must now affirmatively provide accurate advice of the deportation consequences of a guilty plea. Significantly, our Supreme Court in State v. Gaitan, 209 N.J. 339, 372-73 (2012), held that, as Padilla established a new rule of law, the holding in Padilla applied prospectively only. Thereafter, the United States Supreme Court reached the same conclusion, finding Padilla did not apply retroactively. Chaidez v. United States, ___ U.S. ___, ___, 133 S. Ct. 1103, 1113, 185 L. Ed. 2d 149, 162 (2013).
Here, defendant did not provide any evidence that his attorney rendered false or affirmatively misleading advice about the removal consequences of pleading guilty. Rather, defendant asserted he did not receive any advice at all on this issue. When defendant pled guilty in 2006, a defense attorney was not required to advise a client of the removal consequences of pleading guilty. Accordingly, the PCR court correctly denied defendant's motion for post-conviction relief.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Padilla held that when the deportation consequences of a guilty plea are "unclear or uncertain," an attorney need do no more than inform 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.