Opinion
DOCKET NO. A-3383-10T4
03-20-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSE A. DAVILA, Defendant-Appellant.
Howard W. Bailey, attorney for appellant. Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Nugent and Haas.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 04-12-00889.
Howard W. Bailey, attorney for appellant.
Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Jose Davila appeals from a February 3, 2011 order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Defendant was charged in a three-count Somerset County indictment with third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count one); third-degree distribution of cocaine within 1,000 feet of a public school, N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35:5b(3), and N.J.S.A. 2C:35-7 (count two); and third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count three). Pursuant to a plea bargain, defendant pled guilty to counts one and three, and the State agreed to dismiss count two. The State agreed to recommend that defendant be permitted to enter Drug Court for five years in lieu of a three-year sentence in prison.
On October 17, 2005, Judge Paul Armstrong sentenced defendant to five years in Drug Court in accordance with the terms of the negotiated plea. Defendant did not file a direct appeal from his conviction and sentence.
On July 13, 2010, defendant filed a petition for PCR. He alleged he was denied the effective assistance of counsel because his trial attorney failed to advise him of the deportation consequences of his plea. Defendant also alleged he was intoxicated at the time he entered his guilty plea and that the plea should therefore be set aside. On February 3, 2011, Judge Armstrong denied defendant's petition in a thorough oral opinion.
The judge noted that, in response to Question No. 17 on the plea form, "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?", defendant circled "N/A[,]" meaning "not applicable." He also stated in his application for Drug Court that he was a United States citizen. Based upon defendant's affirmative representation he was a citizen of this country at the time he entered his plea, the judge found counsel was not ineffective for failing to advise him of the deportation consequences of his plea.
Judge Armstrong also found there was nothing in the record to support defendant's contention he was intoxicated at the time he entered his plea. The judge had thoroughly questioned defendant concerning the voluntary nature of his plea and, during that colloquy, defendant answered "no" when asked whether he was "under the influence of any medication or substance that would impair your ability to understand either these forms or the nature of this afternoon's proceedings." Thus, the judge found no basis for the relief requested by defendant and he denied defendant's petition for PCR. This appeal followed.
On appeal, defendant raises the following arguments:
I. The Trial Court Erred When It Denied [Defendant's] Petition For Post-Conviction Relief.Our review of the record convinces us that Judge Armstrong acted properly in denying defendant's petition for PCR. Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief comments.
A. The Outcome Of This Appeal On The Ground Of Counsel's Failure To Advise The Defendant Of The Deportation Consequences Of The Plea Is Clear From Controlling Case Law[.] However, Given The Pending Review Of The Retroactivity Of The Padilla Case Before
The U.S. Supreme Court, It Is Respectfully Submitted That This Appeal Should Be Stayed Pending The Decision Of The U.S. Supreme Court In Chaidez.
B. The Trial Court Erred When It Did Not Sua Sponte Vacate The Guilty Plea On July 25, 2005 After Being Informed That [Defendant] Had Entered The Guilty Plea While Under The Influence Of A Controlled Dangerous Substance.
In his petition, defendant argued he was entitled to PCR relief because his original attorney failed to advise him of the deportation consequences of his guilty plea. In Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), the Supreme Court held that the Sixth Amendment requires an attorney to provide advice about the risk of deportation arising from a guilty plea. In State v. Gaitan, 209 N.J. 339, 372 (2012), however, our Supreme Court held that Padilla could not be applied retroactively to defendants whose convictions had already become final prior to that decision. Thus, for pre-Padilla cases, trial counsel is not ineffective so long as he or she does not give the defendant "wrong or inaccurate information" on the deportation consequences of the plea. Gaitan, supra, 209 N.J. at 361-62.
In view of Gaitan, defendant now concedes his claim of ineffective assistance of counsel relating to deportation is no longer viable. Nevertheless, he asks that his appeal be stayed pending the decision of the United States Supreme Court in Chaidez v. United States, a case where the Court would determine whether its decision in Padilla would be applied retroactively. On February 20, 2013, however, the Court held that Padilla does not apply retroactively to cases already final on direct review, thus adopting our Supreme Court's holding in Gaitan. Chaidez v. United States, 81 U.S.L.W. 4112 (February 20, 2013). Therefore, defendant's contention lacks merit.
We also perceive no basis to disturb Judge Armstrong's finding that defendant failed to establish he was intoxicated at the time he entered his guilty plea. Defendant denied he was under the influence of any medication and he responded appropriately to all of the judge's questions during a thorough plea colloquy.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION